The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 12-Jan-2024 15:51:15 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 909 OF 2022 Santanu Kumar Pattanaik Petitioner Mr. Rohit Ranjan Ray, Advocate -versus- Prasanna Kumar Pattanaik and others …. Opp. Parties Mr. Samir Kumar Mishra, Senior Advocate being assisted by Miss Susrita Sahoo, Advocate CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 11.01.2024 2. 1. This matter is taken up through hybrid mode. 2. Order dated 17th August, 2022 (Annexure-1) passed by learned Senior Civil Judge (LR and LTV), Nayagarh in CS No.264 of 2019 is under challenge, whereby an application filed by Plaintiffs/Opposite Party Nos.1 and 2 under Order XVIII Rule 1 CPC to direct the Defendants to begin the suit, has been allowed. 3. Mr. Ray, learned counsel for the Petitioner submits that the suit has been filed for partition. Defendant No.1 appeared and filed written statement denying the allegation made in the plaint. Before commencement of trial, Plaintiffs/Opposite Party Nos.1 and 2 filed an application under Order XVIII Rule 1 CPC to direct the Defendant No.1 to begin the suit. Learned trial Court, without taking note of the fact that the written statement has been filed denying the allegations in the plaint, allowed the same. Hence, this CMP has been filed. 3.1 It is his submission that although Defendant No.1 has admitted the description of the suit property and the genealogy, Page 1 of 4 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 12-Jan-2024 15:51:15 // 2 // but they have denied other averments made in the plaint and also stated that the Plaintiffs are not entitled to the relief claimed. Ordinarily, Plaintiff should begin the suit. If Defendant admits the averments made in the plaint and denies the relief claimed by the Plaintiff on any additional fact or law then only the Defendant has to begin the suit. In the instant case, Defendant No.1 has not admitted the case of the Plaintiffs in its entirety. As such, the provision under Order XVIII Rule 1 CPC is not applicable. Hence, he prays for setting aside the impugned order. It is further submitted that the Plaintiffs have already adduced evidence in the suit. Thus, the petition under Order XVIII Rule 1 CPC is not at all maintainable. These aspects were lost sight of learned trial Court while adjudicating the matter. As such, he prays for setting aside the impugned order and to direct the Plaintiff to adduce further evidence in the suit. 4. Mr. Mishra, learned Senior Advocate appearing for Plaintiffs/Opposite Party Nos.1 and 2 submits that the Petitioner/Defendant No.1 has admitted that the property belonged to the common ancestor, namely, Patitapaban Pattnaik. He has also admitted the genealogy. However, Defendant No.1 claimed that Khata No.488 has been alienated by him and it has been recorded in the name of the purchaser. Thus, the suit land lost its character of being a joint family property. It is his submission that since the Defendant No.1 admitted the case of the Plaintiffs in all material particulars except the fact that Khata No.488 was alienated by him, burden is on him to prove the same. The Defendant No.1 admitting the case of the Plaintiffs denies the relief claimed in the suit on an additional fact. Thus, Page 2 of 4 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 12-Jan-2024 15:51:15 // 3 // Order XVIII Rule 1 CPC squarely applies to this case. He further admits that the Defendant No.1 was set ex-parte earlier. Accordingly, the Plaintiffs had adduced evidence in the matter. But subsequently, Defendant No.1 appeared and filed a petition to set aside the ex-parte order and to file written statement, which was accepted. Thus, evidence, if any, adduced by the Plaintiffs has become redundant in view of changed circumstances. He, therefore, submits that learned trial Court has committed no error in directing the Defendant No.1 to begin the suit. 5. Upon hearing learned counsel for the parties and on perusal of record, it appears that the suit has been filed for partition. After the Defendant No.1 filed his written statement, an application under Order XVIII Rule 1 CPC was filed by Plaintiffs/Opposite Party Nos.1 and 2 to direct the Defendant No.1 to begin the suit. It further appears that Defendant No.1 in his written statement has admitted that Patitapaban Pattnaik, the father of Plaintiffs and Defendant No.1 was the owner of the suit property. He also admitted that after death of the father of Plaintiffs and Defendant No.1, they succeeded to the property, i.e., Khata No.488. He, however, denies the fact that Khata No.488 still remains joint stating that it has already been alienated by the Defendant No.1 for his legal necessity. It also appears that Defendant No.1 has evasively denied the pleadings in the plaint in all material particulars. Additionally, the Defendant No.1 claimed that Khata No.488 is not partiable, as it has already been alienated. In that view of the matter, the provisions of Order XVIII Rule 1 CPC squarely applicable to the case, as rightly submitted by Mr. Mishra, learned Senior Page 3 of 4 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 12-Jan-2024 15:51:15 // 4 // Advocate. The test to apply the provision under Order XVIII Rule 1 CPC is that the party who would fail if no evidence is adduced, should begin the suit. In the instant case, when the Defendant No.1 admits that the property belongs to the common ancestor, namely, Patitapaban Pattnaik and he also admits the genealogy, he would fail if no evidence is adduced. Hence, learned trial Court has rightly directed the Defendant No.1 to begin the suit. In view of the above, I find no infirmity in the impugned order. 6. Accordingly, the CMP being devoid of any merit stands dismissed. 7. Interim order dated 10th October, 2023 passed in IA No.955 of 2022 stands vacated. 8. Since the suit is ready for hearing, parties are directed to cooperate learned trial Court for early disposal of the suit. Issue urgent certified copy of the order on proper application. s.s.satapathy (K.R. Mohapatra) Judge Page 4 of 4