Civil Suit No. 107 of 2018 · High Court of Orissa
Case Details
Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 06-Nov-2023 14:12:38 HIGH COURT OF ORISSA: CUTTACK C.M.P No.900 of 2023 (In the matter of an application under Article 227 of the Constitution of India, 1950) ******* Alekh Lenka and others … Petitioners -versus- The Collector, Kendrapara and others … Opposite Parties Advocate for the Parties : For the Petitioners : For Opp. Parties Mr. Satrughna Dash (A), Advocate Mr. Swayambhu Mishra, Additional Standing Counsel CORAM: JUSTICE KRUSHNA RAM MOHAPATRA ------------------------------------------------------------------------------- Heard and Disposed of on 02.11.2023 ------------------------------------------------------------------------------ JUDGMENT 1. 2. This matter is taken up through hybrid mode. Order dated 13th December, 2022 (Annexure-1) and order dated 10th July, 2023 (Annexure-2) passed by learned Senior Civil Judge (LR & LTV), Kendrapara in Civil Suit No.107 of 2018 are under challenge in this CMP, whereby learned trial Court vide order under Annexure-1 rejected two petitions under Order XI Rule 1 CPC and Order XI Rule 14 CPC and subsequently, rejected similar such application vide order under Annexure-2. 3.
Legal Reasoning
have any prima facie case. By that time, the Written Statement was not filed by the State-Defendants. As such, in order to ascertain the case of the Defendants to proceed with the suit, application under Order XI Rule 1 CPC (Annexure-3) and another application under Order XI Rule 14 CPC (Annexure- 4) were filed. In a petition under Annexure-3, the Plaintiffs delivered interrogatories as more fully stated therein. Under Annexure-4, the Plaintiffs sought for a direction to the Defendants to produce certain documents as more fully described therein. Learned trial Court rejected both the petitions vide order dated 23rd December, 2022 under Annexure-1 observing that the Plaintiffs have to prove their case. 3.1. It is also observed that the interrogatories are proposed for getting answers of the questions which are present in the pleadings of the plaint and the same, if allowed, would cause prejudice to the Defendants. It was further held that the Plaintiffs have the opportunity to cross-examine the Defendants and their witnesses to get the answers to the questions in the interrogatories. While rejecting the petition under Order XI Rule 14 CPC, it is observed that the Plaintiffs have to establish their own case by adducing evidence. 4. It is submitted that the grounds on which both the petitions were rejected, are not sustainable inasmuch as by the time, the interrogatories were delivered, the Defendants had not filed the Written Statement. Thus, the Plaintiffs were in dark about the case of the Defendants to proceed with the suit. The documents sought for in the petition under Order XI Rule 14 CPC were not in CMP No.900 of 2023 Page 2 of 8 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 06-Nov-2023 14:12:38 // 3 // possession of the Plaintiffs to prove their case. Those are very much available with the Defendants and they are suppressing the same from the Court. These material aspects were not considered by learned trial Court while passing the impugned order under Annexure-1. Hence, the impugned order under Annexure-1 is not sustainable. 5. It is further submitted that the Plaintiffs have subsequently filed an application to review the order under Annexure-1. But, learned trial Court, misconstruing the same to be replication of the earlier petitions, rejected the same vide order under Annexure-2. Hence, the impugned order under Annexure-2 is also not sustainable. 6. Mr. Mishra, learned Additional Standing Counsel, on the other hand, submits that the petition under Order XI Rule 1 CPC under Annexure-3 itself shows that the Plaintiffs are not entitled to the relief sought for in the said petition. It is stated therein that during course of hearing of petition under Order XXXIX Rules 1 and 2 CPC, the Defendants raised an objection to the effect that the Plaintiffs do not have any prima facie case. The same cannot be a ground to deliver interrogatories to the Defendants-Opposite Parties to answer. 7. Further, in the Written Statement, the Defendants have categorically stated that the Plaintiffs are not the tenants under Bardhwan Estate. In spite of the same, petition under Order XI Rule 14 CPC was filed to produce documents, as if, the Defendants admit the case of the Plaintiffs and said documents are available with the Defendants. CMP No.900 of 2023 Page 3 of 8 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 06-Nov-2023 14:12:38 // 4 // 7.1. It is further submitted that the Plaintiffs have to succeed on the strength of their own case. Even if, the Defendants do not file the Written Statement, the burden of proving the case of the Plaintiffs is not taken away or reduced. Hence, learned trial Court has committed no error in passing the impugned order under Annexure-1. 8. There is no material available on record, as to whether the Plaintiffs had subsequently filed a petition to review the order dated 23rd December, 2023 (Annedure-1) or they filed another application of similar nature as under Annexures 3 and 4. On perusal of the order under Annexure-2, it appears that the Plaintiffs-Petitioners filed similar such application subsequently without assailing the order dated 23nd December, 2023. Principle of res judicata also applies to different stages of the same proceeding. Thus, learned trial Court has committed no error in passing the impugned order under Annexure-2. Hence, he prays for dismissal of the CMP. 9. Considering the rival contentions made by learned counsel for the parties and on perusal of the case record, more particularly, the petitions under Annexures 3 and 4, it appears that vide Annexure-3, the following interrogatories were delivered to the Defendants to answer: State the Exact date, the Tahasil Marshaghai was “1. The defendants being the custodian of the record will they disclose about the date and year of acceptance of Burdhnwan estate records in connection with suit plot. 2. bifurcated and a new Tahasil of Mahakalapara was created? 3. form the year 1950? Who (legal entities) was/were cultivating the suit land 4. in the year 1954 when the land had vested in the State albeit the status of the land as shown in the Record of Rights? Who (legal entities) was/were cultivating the suit land CMP No.900 of 2023 Page 4 of 8 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 06-Nov-2023 14:12:38 // 5 // How the kisma of the suit land was identified for the Under whose supervision the suit land was recorded When the Burdhnwan estate was abolished? Who hold records in connection with the documents 5. 6. obtained from Bardwan Estate? 7. in the Hal ROR? 8. purpose of preparation of Hal ROR? 9. What is the content of the Amin report in relation to suit land prepared in connection with Hal khatta No 110 Hal plot No 201/426 in mouza kentia P.S. mahakalpara (Marshaghai Before bifurcation) Dist Kendrapara. 10. produced a report about the kisma of the suit land? 11. in the year 1930? 12. After amalgamation of the Burwadwan estate with the state of Odisha the Jamabandi as well as tenancy ledger has been opened in favour of the predecessor of the Plaintiffs in connection with suit land. Please produce the record. 13. purpose of preparation of Sabik ROR? 14. in the possession of the suit land since 1942 to till date?” How the kisma of the suit land was identified for the Will Tahasildar Mahakalpara (Defendant No. 3) may List of legal entities /institution/individuals, Who is/are Who surveyed the suit land for preparation of the ROR 10. On perusal of the aforesaid interrogatories, it appears that the Plaintiffs-Petitioners by virtue of those interrogatories tried to prove their case through the Defendants which is not permissible in law. They interrogatories suggest as if the Defendants admit the case of the Plaintiffs. The burden is on the Plaintiffs to prove their case. They may succeed on the strength of their own case and not at the weakness, if any, of the Defendants. Even if no Written Statement is filed, still the burden of proving the case of the Plaintiffs remains the same and is not lessened or taken away. 11. Vide petition under Annexure-4, filed under Order XI Rule 14 CPC, the following documents were sought to be produced by the Defendants. CMP No.900 of 2023 Page 5 of 8 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 06-Nov-2023 14:12:38 // 6 // 1. Plaintiffs Alekh Lenka, and others request that defendants, produce the following documents in connection with this civil suit. If objection is made, 2. Please state the reason for the objection. If denying the matter, please set forth in detail the reason why the answering party cannot produce such documents. 2. Please produce a copy of the notification by virtue of which Marshaghai Tahasil was bifurcated and a new Tahasil name and styled as Mahakalapura was created. 3. Please produce a copy of the Ekapadi in connection with Hal Khatta No.110 Hal Plot No. 201/426 of Mouza Kentia, Tahasil: Mahakalpada (Before bifurcation Tahasil: Marshaghai) under Dist Kendrapari. 4. Please produce all the copy of tenancy ledger Khatta No. 46 in connection with Hal Khatta No.110 Hal Plot No. 201/426 of Mouza Kentia, Tahasil: Mahakalpada (Before bifurcation Tahusil. Marshaghai) under Dist Kendrapara corresponding to Sabik khatta No. 19 Sabik Plot No. 142. 5. Please produce all the toposheet (Topographic Map) of the Mouza Kentia Tahasil: Mahakalpada (Before bifurcation Tahasil: Marshaghai) under Dist Kendrapara made by the government after 1899. 6. Please produce Hatta Patta Submitted by the plaintiffs and/or plaintiffs’ Ancestor before the Tahasildar Marshaghai in the year 1981. Please produce permanent lease deed connection 7. with suit land. Please produce 8. in connection to the bifurcation of Tahasil Marshaghai and creation of new Tahasil Mahakalapara the Gazette notification 9. Please produce the Rent Receipt No. 735100 dated 2/11/1987 where the arrear rent was collected from 1951 to 1987 in connection with hal khatta No 110 hal plot No 201 area Ac.20.00 dec. kisma Jhati Jungle corresponding to the Sabik kahtta No. 46 Sabik Plot No.142 in the district kendrapara P.S. Mahakalapara Mouza Kentia Tahasil- Mahakalapara (previously Marshaghai), 10. Please Produce the Rent Receipt issued by the Ex intermediary in connection with hal khatta No 110 Hal plot No 201 area Ac20.00 dec, kisma Jhati Jungle corresponding to the Sabik kahtta No. 46 Sabik Plot No. 142 in the district kendrapara PS. Mahakalapara Mouza Kentia Tahasil- Mahakalapara (previously Marshaghai), as the same has been submitted by the Ex- intermediary basing on which the CMP No.900 of 2023 Page 6 of 8 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 06-Nov-2023 14:12:38 // 7 // present Jamabandi has been opened in the name of the ancestor of the plaintiffs. 11. Please Produce the Jamahandi register showing entry of the name of plaintiff’s predecessor (Baraju Lenka and others of Jamapara), in connection with hal khatta No 110 hal plot No 201 area Ac20.00 dec kisma Jhati Jungle corresponding to the Sabik kahtta No. 46 Sabik Plot No. 142 in the district kendrapara P.S. Mahakalapara Mouza Kentia Tahasil- Mahakalapara (previously Marshaghai). 12. Please Produce the rent roll showing entry of the name of plaintiffs and/or their predecessor in connection with hal khatta No 110 hal plot No 201 area Ac20.00 dec kisma- Jhati Jungle corresponding to the Sabik kahtta No.- 46 Sabik Plot No.- 142 in the district kendrapara P.S. Mahakalapara Mouza Kentia Tahasil- Mahakalapara (previously Marshaghai)” From the above, it appears that most of the documents are relating to the tenancy of the Bardhwan Estate. When the Defendants in their Written Statement have categorically stated that the Plaintiffs are not the tenants under the Bardhwan Estate, the burden is on the Plaintiffs to prove the same. Thus, the documents sought for could not have been produced by the Defendants for just adjudication of the suit. The documents as narrated above were sought to be produced, as if the Defendants admit the case of the Plaintiffs. 12. Learned trial Court, while adjudicating the petition under Annexures- 3 and 4 vide order under Annexure-1, has rightly held that the burden is on the Plaintiffs to prove their case and they may get the answer by cross-examining the Defendants and their witnesses during trial of the suit. 13. It is submitted by Mr. Dash, learned counsel for the Plaintiffs-Petitioners that the Plaintiffs had, in fact, filed an application to review the order under Annexure-1, but learned trial Court misconstrued the same to be replication of the petitions under CMP No.900 of 2023 Page 7 of 8 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 06-Nov-2023 14:12:38 // 8 // Annexures- 3 and 4. The petition on which the order under Annexure-2 was passed is not available in the case record. Thus, this Court is not in a position to ascertain as to whether the Plaintiffs-Petitioners had, in fact, filed a review application or similar such applications as before, under Order XI Rule 1 CPC and under Order XI Rule 14 CPC. In absence of any material to the contrary, this Court accepts the observations/recording made by learned trial Court to the effect that the Petitioners-Plaintiffs have filed similar such application under Order XI Rule 1 CPC and Order XI Rule 14 CPC as before. As rightly submitted by Mr. Mishra, learned Additional Standing Counsel, principles of res judicata applies to different stages of the same proceeding. Thus, learned trial Court has committed no error in passing the impugned order under Annexure-2. 14. Accordingly, the CMP, being devoid of any merit, stands dismissed. Urgent certified copy of this order be granted on proper application. (K.R. Mohapatra) Judge High Court of Orissa, Cuttack Dated 2nd November, 2023, Rojalin CMP No.900 of 2023 Page 8 of 8
Arguments
Mr. Dash, learned counsel for the Petitioners submits that at the time of hearing of the petition under Order XXXIX Rules 1 and CMP No.900 of 2023 Page 1 of 8 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 06-Nov-2023 14:12:38 // 2 // 2 CPC, the State-Defendants raised a plea that the Plaintiffs do not