The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK AFR CMP No.880 of 2024 Shiksha Vikash Samiti, Odisha …. Petitioner Mr. T.K.Mishra, Advocate & Mr. P.K.Sahoo, Advocate -Versus- Runu Pradhan …. Opposite Party Mr. S.S. Bhuyan, Advocate CORAM: JUSTICE R.K. PATTANAIK DATE OF JUDGMENT:23.05.2025 1. Instant petition the petitioner challenging the impugned order dated 8th July, 2024 filed by is as at Annexure-12 passed in TR.P.(C) No.03 of 2024 by learned District Judge, Khurda at Bhubaneswar and for a direction ensuring disposal of the suit in C.S. No. 85 of 2018 within a stipulated period. 2. Learned court below vide Annexure-12 directed withdrawal of the suit in C.S. No. 499 of 2016 from Page 1 of 17 the court of learned 2nd Additional Senior Civil Judge, Bhubaneswar and transferred it to the court of learned Senior Civil Judge, (LR<V), Bhubaneswar to be tried and disposed of along with C.S. No. 85 of 2018, a decision, which is currently under challenge at the behest of the petitioner. 3. The petitioner is a registered society under the Society Registration Act and stated to be the affiliated Apex Body of all the private schools running in the State of Odisha and catering to the educational needs of the local residents and in order to expand its office, there was a need for a suitable accommodation, for which, it entered into an agreement dated 15th December, 2014 and in that connection, a double storey building standing over the suit schedule property was purchased in the year 2016, whereafter, the mutation RoR was obtained. A copy of the said RoR is at Annexure-1 series. It is pleaded on record that prior to such purchase, there were some tenants staying in the building including the opposite party
Legal Reasoning
with her family in a portion of the first floor of the same and was paying rent to the land owner but after the sale of the suit schedule property, the vendor of the petitioner issued a legal notice dated 29th Page 2 of 17 December, 2014 to all the tenants to vacate the premises, in response to which, all of them vacated the tenanted houses in occupation except the opposite party, who along with her husband, stayed forcibly and instituted a suit in C.S. No. 7941 of 2015 in the court of learned Civil Judge (Junior Division), Bhubaneswar. A copy of the plaint in the said suit is at Annexure-3. The further pleading is that in order to grab the property in question and occupy the same unlawfully, the opposite party filed the suit in C.S. No. 499 of 2016 before the court of learned Civil Judge (Senior Division), Bhubaneswar against the original owners without impleading the petitioner demanding specific performance of a contract entered into in respect thereof and as per the plaint (Annexure-4) therein, the claim was that the husband of the opposite party had negotiated with the original owners to purchase the property for a consideration amount of Rs.1.5 crore and paid a sum of Rs. 10 lac on 22nd October, 2015 as advance to one of the co- sharers named in the RoR. It is claimed by the petitioner that though the suit was filed in the year 2016, the trial has not commenced as yet and is pending at the stage of amendment of plaint and that apart, no copy of any such agreement was filed Page 3 of 17 therein while seeking a decree of specific performance of contract in respect of the property involved and in the meantime, the original land owner lodged an F.I.R. against them registered as G.R. Case No. 2317 of 2017 alleging mischief vis-à- vis a plea of any such agreement to be in place. In fact, it is pleaded that the opposite party filed an application under Order 6 Rule 17 CPC in C.S. No. 499 of 2016 and the same was allowed, challenging
Decision
which, CMP No.1296 of 2022 was filed and the same was disposed of on 17th January, 2022 for a rehearing and disposal of the same according to law. Since such possession of the opposite party was unlawful, the petitioner instituted suit in C.S. No. 85 of 2018 against the opposite party and her husband for eviction and recovery of arrear rent etc. since the date of the purchase of the suit schedule property by them, wherein, the W.S. was filed. It is pleaded that the opposite party claimed transfer of the suit in T.S. No. 499 of 2016 and filed TR.P.(C) No. 3 of 2020 but it was rejected by an order dated 5th February, 2024 as at Annexure-6 and once again, an application under Section 10 CPC was moved but it was rejected too by order dated 17th December, 2021 passed in C.S. No. 85 of 2018. According to the petitioner, one more Page 4 of 17 application under Section 10 CPC was filed by the opposite party and it had the same result with a rejection order dated 23rd November, 2023 i.e. Anexure-9, which was challenged in CMP No. 19 of 2024 but was dismissed as withdrawn by order dated 13th February, 2024 and thereafter, the inherent power of learned court below in terms of Section 151 CPC was sought to be invoked in C.S. No. 85 of 2018 and it was followed by an order at Annexure-10 series dated 16th March, 2024 rejecting the application filed seeking stay of the further proceeding therein and imposing a cost of Rs. 5,000/- and posted the suit for argument on 22nd March, 2024. After having failed all through, it is lastly pleaded by the petitioner that in order to stall the disposal of C.S. No. 85 of 2018, the opposite party filed TR.P.(C) No. 03 of 2024 before the learned court below, which directed analogous hearing and disposal of both the suits vide Annexure- 12 without considering the need and necessity granting a relief which was not even pleaded by the opposite party and therefore, the impugned decision dated 8th July, 2024 is liable to be interfered with paving the way of disposal of C.S. No. 85 of 2018 pending for argument. Page 5 of 17 4. Heard Mr. Mishra, learned counsel for the petitioner and Mr. Bhuyan, learned counsel for the opposite party. 5. Mr. Mishra, learned counsel for the petitioner questioned the correctness of the impugned order i.e. Annexure-12 contending that learned court below failed to consider the entirety of the dispute between the parties and travelled beyond the pleading to direct analogous hearing of the suits in C.S. No.499 of 2016 and C.S. No. 85 of 2018, morefully when, the hearing of the former suit at the instance of the opposite party has not commenced at all and that apart, the opposite party, at no point of time, produced a copy of the agreement in C.S. No. 499 of 2016 to maintain it seeking specific performance of contract. The further submission is that considering the fact that stay of the suit was demanded by the opposite party more than once having been rejected, learned court below failed to take judicial notice of the same and instead, allowed the application filed under Section 24 CPC and transfer of the suit in C.S. No. 499 of 2016 to the court of learned Senior Civil Judge (LR <V), Bhubaneswar to be tried along with C.S. No.85 of 2018, which is not in accordance with law, all the Page 6 of 17 more when, the petitioner is the registered owner in respect of the suit schedule property. 6. On the contrary Mr. Bhuyan, learned counsel for the opposite party justifies the impugned order at Annexure-12 to claim that the suits are to be tried together considering the nature of relief sought for by the respective parties and rightly according to learned court below so as to avoid conflicting decisions therein. It is submitted by Mr. Bhuyan, learned counsel that in the suit of the opposite party, the relief is for specific performance of contract and if the other suit in C.S. No. 85 of 2018 is allowed to be disposed of, it would result in miscarriage of justice with a decree therein for eviction, hence, therefore, learned court below did not commit any serious wrong or error in passing the impugned order at Annexure-12. 7. Mr. Mishra, learned counsel for the petitioner cited the following decisions, such as, National Institute of Mental Health & Neuro Sciences Vrs. C. Parameshwara AIR 2005 SC 242; Suresh Kumar Singhi & others Vrs. Kirit Kotecha & another 99(2005) CLT 345; Kulwinder Kaur@ Kulwinder Gurcharan Singh Vrs. Kandi Friends Education Trust & others AIR 2008 SC 1333; and United Page 7 of 17 Commercial Bank, Bhadrak Vrs. National Trading Corporation AIR 2002(NOC) 175 Orissa to contend that learned court below illegally exercised the jurisdiction under Section 24 CPC directing analogous hearing of the suits. It is contended that the issues involved in both the suits are different and hence, when application under Section 10 CPC was moved and rejected and even once challenged in CMP No. 19 of 2019 but the same was dismissed as withdrawn at the instance of the opposite party, learned court below completely erred in passing the impugned order i.e. Annexure-12. 8. A copy of the plaint in C.S. No. 7941 of 2015 at Annexure-3 reveals that the suit was instituted for injunction against the original land owners and therein, no such plea was advanced regarding the agreement between them and about the payment of a part of the consideration money on 22nd October, 2014. The plea in the said plaint opposing the action of eviction by the real owner for the premise was that the daughters of the opposite party were studying in +2 and their son was preparing for the Medical Entrance Examination by then and as such, no rented house was available in the locality to immediately Page 8 of 17 shift and hence, it was not feasible for them to vacate the suit house by 20th February, 2022. The said suit was filed by the husband of the opposite party and it was followed by the subsequent one i.e. C.S. No.499 of 2016 with a plea that there is an agreement to purchase the property for a consideration amount of Rs.1.5 crore. The petitioner, thereafter, instituted the suit in C.S. No. 85 of 2018 seeking eviction of the opposite party. The facts leading to the rejection of the applications under Section 10 CPC are not disputed by the opposite party. In fact, all such attempts for staying the suit of the petitioner fell flat till the very end but at last, it was followed by the impugned order at Annexure-12. It is also not in dispute that hearing of the suit in C.S. No. 499 of 2016 is at the nascent stage, whereas, the other suit i.e. C.S. No. 85 of 2018 of the petitioner is on the verge of disposal as it was fixed to 22nd March, 2024 for argument as revealed from Annexure-10. Considering the conduct of the opposite party, learned Senior Civil Judge (LR & LTV), Bhubaneswar, while dealing with an application under Section 151 CPC filed by her to stay the further proceeding in C.S. No. 85 of 2018 until disposal of the earlier suit in C.S. No. 499 of 2016, directed her Page 9 of 17 to pay cost of Rs. 5,000/- as made to reveal from Annexure-10 with a direction that no further adjournment shall be entertained with a date fixed for argument. 9. In Parameshwara (supra), it is held by the Apex Court that inherent jurisdiction of a Court to make orders ex-debito justitiae is undoubtedly affirmed by Section 151 CPC but such power cannot be exercised to nullify the provisions of the Code especially when it deals expressly with provisions in that regard, hence, therefore, to be normally regarded as exhaustive as against the background facts therein that the proceedings were before a Civil Court and a Labour Court, wherein, stay of the suit was insisted upon. In Suresh Kumar Singhi (supra), this Court, more or less in a similar situation, where, one of the suits was for specific performance of contract concluded that the proposition of law with reference to Section 10 CPC deals with stay of a subsequent suit during the pendency of the earlier one and since, the issues were neither the same nor the suits between the same parties, declined to intervene with a decision where such an application was moved seeking stay of the suit for eviction but rejected. In Kulwinder Page 10 of 17 Kaur@ Kulwinder Gurcharan (supra), the Apex Court was dealing with a matter seeking transfer of the suit and therein, outlined the principles to be followed while considering the same. 10. In the case at hand, admittedly, the suit of the petitioner is for eviction as opposed to the other suit by the opposite party for specific performance of contract against the original owner. The petitioner has been impleaded as a party in C.S. No. 499 of 2016, since the suit property was purchased by them, after an agreement dated 15th December, 2014 and was followed by issuance of mutation RoR in their favour as per Annexure-1 series. As earlier stated, the husband of the opposite party had instituted a suit in 2015 and on a reading of the plaint therein at Annexure-3, there was no such claim about any such agreement between him and the original owner and the eviction was rather objected on the ground that they are not in a position to immediately shift vacating the suit house due to education of their children. The original agreement, as it has been alleged, was never produced in C.S. No. 499 of 2016. In fact, a copy of the plaint in the said suit at Annexure-4 does not contain the original agreement Page 11 of 17 among the list of the documents to be relied upon. Alleging mischief against the opposite party and her husband, G.R. Case No. 2317 of 2017 was registered in the court of learned SDJM, Sadar, Cuttack and for having committed offences under Sections 465, 467, 468 & 471 read with 34 IPC. Such mischief is alleged to be in relation to the alleged agreement. It is not in denial but rather borne out of the record that all attempts of the opposite party seeking stay of the suit in C.S. No. 85 of 2018 have been unsuccessful. In so far as the application under Section 24 CPC is concerned, as made to reveal from Annexure-12, it was while considering the request for a transfer from the court of learned Additional Civil Judge-cum- L.R., Bhubaneswar but learned court below proceeded to club both the suits for analogous disposal ignoring the fact that stay in terms of Section 10 CPC was declined all along. 11. On a perusal of the application under Section 24 CPC at Annexure-11, the Court finds that the opposite party made allegations against the Presiding Judge of the court concerned and demanded transfer of the suit in C.S. No. 85 of 2018. In fact, in the said application, an aspersion was made against the Page 12 of 17 learned Presiding Judge by claiming that he had shown irritating gesture and behaved like a joker and such gesture and attitude was not expected from him, who is an Officer equal to the rank of Sub-Judge. It is not understood how such a remark and serious aspersion against the learned Presiding Judge of the court was not sternly dealt with by learned court below while dealing with the application filed under Section 24 CPC. Nevertheless, the request was for transfer of the suit to any other Court and not for an analogous hearing and disposal of the same along with C.S. No. 499 of 2016 but as it appears learned court below not only transferred the suit but directed it to be tagged with the other one well aware of the fact that in C.S. No. 85 of 2018, hearing has been concluded and is currently pending at the stage of argument. Notwithstanding the fact that the learned Presiding Judge in C.S. No. 85 of 2018 was, in the meantime, transferred and hence, the apprehension of the opposite party ceased to exist, learned court below for no apparent reason directed withdrawal of the suit in C.S. No. 499 of 2016 and tagged it with the C.S. No.85 of 2018 to be tried and disposed of simultaneously. It is not known why there was such a need felt by learned court below for an analogous Page 13 of 17 hearing of both the suits in the peculiar facts and circumstances of the case when stay of the suit of the petitioner was refused till the very end. 12. This Court in Suresh Kumar Singhi (supra) held that the nature of the suits are different and issues were dissimilar and hence, there was no need for any stay of the later suit during the pendency of the earlier one, in which, there was a decree in part and challenging the same, an appeal was carried and pending disposal. In the said case, one suit was for specific performance of contract and the other one was for eviction and both the suits were heard analogously and disposed of and while in the former, a decree in part was passed and pending in appeal, such a request under Section 10 CPC was received but the same was rejected confirming the order challenged therein of the learned Civil Court. A court under Section 24 CPC has a discretionary power and as rightly held and observed by the Apex Court in Kulwinder Kaur@ Kulwinder Gurcharan Singh (supra), the jurisdiction in that regard should be exercised with care and caution keeping in view the different aspects of the litigation, such as, the convenience or inconvenience to one of the parties, Page 14 of 17 stage of trial, nature of evidence received, reasonable apprehension so on and so forth before reaching at a conclusion that there should be a transfer of a suit or any such proceeding from one Court to another. 13. In the case of the petitioner, as is revealed from the record, it has been a battle seeking recovery of the suit schedule property from the possession of the opposite party, who has opposed it and stood against eviction by taking a plea of an agreement with the real owner. It has been alleged that the original agreement has never seen the light of day and the opposite party having committed the mischief in that regard, a criminal case has been registered by G.R. Case No. 2317 of 2017. Without touching upon the merits of the rival claims, the Court is of the view that the clubbing of the suits as has been directed by the learned court below was absolutely unwarranted, especially when, in a suit for specific performance, either there could be a specific performance or in the alternative, refund of the advance money allegedly received by the real owner. When the stay of the suit in C.S. No. 85 of 2018 was vehemently opposed by the petitioner, who has been successful every time and the same is ready for disposal being at the stage Page 15 of 17 of the argument, the Court keeping in view the settled legal position discussed hereinbefore reaches at a conclusion that learned court below failed to take cognizance of the facts peculiar to the case and hence, was not justified to direct analogous hearing both the suits. 14. Before departure, the Court is inclined to reiterate the need to uphold the sanctity of a judicial proceeding and to strongly deal with cases where there is scathing and scurrilous attack against the Presiding Judges of the Courts since no system of justice can ever tolerate any such unbridled license on the part of a person, be a lawyer, to permit himself the liberty to scandalize a Court by casting unjustified aspersions touching upon the integrity, ability, impartiality or fairness of a Judge discharging judicial functions. In fact, the Court is of the view that learned Court below, in the first place, ought to have directed expunction of the averments of the application filed under Section 24 CPC making unsubstantiated allegations against the learned Presiding Judge of the Court below with such other course of action being followed to maintain dignity of all concerned but unfortunately, it has failed to do and deliver. Page 16 of 17 15. For the reasons discussed herein before, the Court finally sums up with the conclusion that the impugned decision by order as per Annexure-12 cannot be sustained in law, hence, to be set at naught to facilitate disposal of the suit in C.S. No. 85 of 2018 leaving it open for the opposite party to work out the remedy with suitable reliefs in the other suit as admissible under law. 16. Accordingly, it is ordered. 17. In the result, the writ petition stands allowed with the direction as aforesaid, however, in the circumstances, there is no order as to costs. As a necessary corollary, the impugned order dated 8th July, 2024 as at Annexure-12 passed in TR.P.(C) No.03 of 2024 by learned District Judge, Khurda at Bhubaneswar is hereby set aside. (R.K. Pattanaik) Judge Signature Not Verified Digitally Signed Signed by: KABITARANI MAJHI Reason: Authentication Location: OHC,CTC Date: 24-May-2025 13:00:08 kabita Page 17 of 17