The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO. 866 OF 2023 Tarangini Dehury and others Petitioners Mr. J.R. Dash, Advocate …. Girish Pradhan -versus- Opp. Parties Mr. S.P. Mishra, Senior Advocate being assisted by Mr. G.N. Parida, Advocate …. CORAM: JUSTICE K.R. MOHAPATRA Order No. 2.
Decision
ORDER 29.08.2023 This matter is taken up through hybrid mode. 1. 2. Order dated 29th May, 2023 (Annexure-1) passed by learned Additional District Judge, Athamallik in C.A. No.131 of 2023 (arising out of RFA No.3 of 2023) is under challenge in this CMP, whereby an application under Order XLI Rule 27 C.P.C. has been rejected. 3. Mr. Dash, learned counsel for the Petitioners submits that one Suryamani Dehury filed a suit for declaration of right, title and interest over the suit property and to declare the sale deed dated 16th April, 2013 executed by her husband, namely, Abhimanyu Dehury to be null and void, as it has been obtained by practicing fraud. The suit was dismissed on merit. Assailing the same, said Suryamani Dehury filed RFA No.3 of 2023. During pendency of the appeal, Suryamani Dehury died and the Petitioners were substituted as her legal heirs. An application under Order XLI Rule 27 C.P.C. was filed by them to accept the Hal-Sabik information report, Sabik R.O.R. and caste by-law of Page 1 of 5 // 2 // ‘Dumal’ Caste as additional evidence. The said application was rejected. Hence, this CMP has been filed. 3.1 Mr. Dash, learned counsel for the Petitioners submits that while adjudicating the petition, learned Appellate Court did not, at all, take into consideration the requirement of Order XLI Rule 27 C.P.C. It has also not taken into consideration the relevancy of those documents to be accepted as additional evidence. It is his submission that Sabik R.O.R. clearly indicates that the suit property was recorded in the name of Suna Dehury, the ancestor of the Petitioners. Thus, the Petitioners have definite share in the suit property. Although Suryamani Dehury died issueless, but they being the legal heirs of Suna Dehury, who is their ancestor, have been substituted. Thus, they have right to pursue the appeal. 3.2 It is his submission that learned Appellate Court failed to appreciate that those documents are necessary for adjudication of the suit to establish that the Petitioners have share in the suit property. Since they were not parties to the suit and they were made parties by substitution only during pendency of the appeal, they could not bring those materials to the notice of learned trial Court. As such, there is no legal impediment to accept the aforesaid documents as additional evidence in exercise of power under Order XLI Rule 27 (1)(b) C.P.C. 4. Mr. Mishra, learned Senior Advocate appearing for Opposite Party submits that the sale deed executed by Abhimanyu Dehury, the husband of the deceased Appellant, Page 2 of 5 // 3 // was in question in the suit. By filing those documents, the present Petitioners seek to expand the scope of the appeal by making a third case that the suit property is the ancestral property, which was not the case of the Plaintiff, Suryamani Dehury, before learned trial Court. It is his submission that after death of Suryamani Dehury, the Petitioners filed an application to be substituted in her place without filing any documents in support of their case. However, learned Appellate Court allowed the application for substitution to continue the appeal. The Petitioners having stepped into the shoes of the deceased Appellant are not permitted to make out a third case at the appellate stage. If they have any independent right over the suit property, they may work out their remedy in an independent proceeding. There is also no material on record to show that the evidence available on record is insufficient to decide the appeal or in spite of due diligence, the Plaintiff could not have brought these documents on record for adjudication of the suit. Those documents are also not necessary for adjudication of the appeal as they are sought to be introduced to make out a third case to the effect that the property in question is an ancestral property, which is not the case of either of the parties. Thus, learned Appellate Court has committed no error in dismissing the appeal. 5. Taking into consideration the submissions made by learned counsel for the parties, this Court finds that the Petitioners were substituted during pendency of the appeal. Thus, they have stepped into the shoes of the Plaintiff-Appellant Page 3 of 5 // 4 // and have to pursue the case of the Plaintiff-Appellant (now deceased) in the appeal. They cannot claim any independent right over the suit property in the appeal filed by the deceased Appellant. 6. From the submission of Mr. Dash, learned counsel for the Petitioners, it appears that by filing those documents, the Petitioners want to make out a case that the property in question is ancestral property and they have share in it. It was not the case of the Plaintiff neither before learned trial Court nor in the Appellate Court. Thus, the Petitioners being the legal heirs of the deceased Appellant cannot make out a third case or an independent case in the appeal by introducing new documents. 7. Mr. Dash, learned counsel for the Petitioners relying upon the decision in the cases of Sukru Bibhar –v- Tileswar Naik and others, 1998 (II) OLR 129 and Kalandi Rout and others –v- Bipin Swain, 2019 (Supp.II) OLR 790 submits that hearing of the application under Order XLI Rule 27 C.P.C. should be postponed till hearing of the appeal. In an appeal, there is no definite stage of hearing. After appearance of the Respondent, the appeal becomes ready for hearing. After appearance of the parties, the appeal can be heard on any day it is posted, if there is no legal impediment. Thus, learned Appellate Court has committed no error in entertaining the application under Order XLI Rule 27 C.P.C. 7.1 It is contended by Mr. Dash, learned counsel for the Petitioners that none of the ingredients of Order XLI Rule 27 C.P.C. was discussed while adjudicating the petition. Page 4 of 5 // 5 // 8. On perusal of the impugned order, it appears that learned Appellate Court has discussed the contentions and merits of the documents sought to be introduced as additional evidence. Since the case of the Petitioners does not fall under any category of clause of Order XLI Rule 27 C.P.C., learned Appellate Court has committed no error in dismissing the petition. 9. In view of the above, the CMP being devoid of any merit stands dismissed. Urgent certified copy of this order be granted on proper bks application. (K.R. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: BIJAY KUMAR SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 31-Aug-2023 12:26:07 Page 5 of 5