The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.30108 of 2024 Sonali Mohapatra …. Petitioner Mr. J. Patnaik, Advocate -Versus- Jitanjali Lenka and others …. Opposite Parties
Legal Reasoning
Mr. P.K. Ray, AGA CORAM: MR. JUSTICE R.K. PATTANAIK Order No. 03. 1. Heard Mr. Patnaik, learned counsel for the petitioner and Mr. Ray, learned AGA for the State.
Decision
ORDER 28.02.2025 2. None appears for opposite party No.1 as against whom the notice has been treated sufficient by the Court’s order dated 29th January, 2025. 3. Instant writ petition is filed by the petitioner challenging the impugned judgment dated 29th June, 2024 passed in Civil Revision No.03 of 2023 by learned 1st Additional District Judge, Khurda confirming the order of learned Civil Judge (Junior Division), Khurda in CS No.353 of 2022 dated 28th August, 2023, whereby, an application under Order 7 Rule 11 CPC filed by her seeking rejection of the plaint was dismissed. 4. Mr. Patnaik, learned counsel for the petitioner submits that opposite party No.1 was one of the candidates, who contested the election to the post of Sarpanch, Achyutapur Gram Panchayat and instituted the suit in CS No.353 of 2022 seeking suitable action Page 1 of 4 against the petitioner, who is the returned candidate, in terms of Section 25(5) of the Odisha Gram Panchayat Act, 1964 (hereinafter referred to as ‘the Act’). It is further submitted that the question of jurisdiction was raised with a plea that the suit is not maintainable in view of Section 30 of the Act but it has not been entertained by the court of 1st instance, decision of which, as per Annexure-5, was thereafter, confirmed vide Annexure-6 by learned 1st Additional District Judge, Khurda. According to Mr. Patnaik, learned counsel rejection of plaint was sought for as per Order 7 Rule 11 CPC on various grounds besides the point of jurisdiction but the learned courts below did not consider the same and it has led to the passing of the impugned decisions under Annexures-5 and 6, which are, hence, liable to be interfered with and set aside. 5. A copy of the plaint is at Annexure-1 and the same is perused. In fact, as per the suit and relief sought for therein, an action is sought to be initiated against the petitioner according to the provisions of the Act and in particular, Section 25(5) thereof on the ground that there has been no correct disclosure with regard to the details of the immovable properties possessed by her and such assets lying in the name of her spouse. The petitioner, thereafter, moved an application Order 7 Rule 11 CPC seeking rejection of the plaint with one of the grounds, such as, jurisdiction of the Civil Court is barred being an election dispute which shall have to be dealt with as per the provisions of the Act. Learned Civil Judge (Junior Division), Khurda, however, considered it not proper to entertain such a plea for rejection of plaint as per Order 7 Rule 11 CPC on the grounds that there is a cause action for the suit. In fact, there has been no specific finding by the court of 1st instance with reference to the jurisdiction of the court in view of the remedy available under the Act. It is further held that evidence to be necessary to consider such plea of the petitioner. In other words, Page 2 of 4 the court considered it not to be a case of rejection of plaint in terms of Order 7 Rule 11 CPC but to adjudicate the dispute upon receiving evidence from both the sides without any decision on the question of jurisdiction raised by the petitioner. Upon a reading of the impugned judgment as at Annexure-6, the Court further finds that learned 1st Additional District Judge, Khurda has confirmed the order i.e. Annexure-5 more or less on a similar ground though taking judicial notice of the relevant provisions of the Act with regard to an election dispute to be entertained as per Section 30 thereof. Furthermore, it is found that Section 26 of the Act is also taken cognizance of by learned court below but ultimately, it has confirmed the order under Annexure-5 with the finding that a cause of action exists for the suit to be adjudicated upon. 6. Considering the impugned decisions under Annexures-5 & 6 and as there has been a specific ground raised by the petitioner with reference to the Act and on the ground that it relates to an election dispute, the Court is of the view that the same ought to have been duly examined by the learned courts below. In fact, the court of 1st instance did not consider any such plea as to absence of jurisdiction and held that there is existence of a cause of action to entertain the suit. The learned 1st Additional District Judge, Khurda equally fell into serious error by not considering the question of jurisdiction though referred to the relevant provisions of the Act. In other words, it is a fit case, where, such a question is to be duly considered by learned Civil Judge (Junior Division), Khurda. A question of jurisdiction and a ground under Order 7 Rule 11 CPC is to be examined by a court on perusal and examination of the plaint. If an election dispute is to be entertained in the suit and question of its maintainability when was raised by the petitioner, it was the bounden duty of the court of 1st instance to examine the same, which, in the instant case, has not taken place and at the same Page 3 of 4 time, learned 1st Additional District Judge, Khurda left it unattended with a similar conclusion that the cause of action exists for the suit. Having said that, the Court reaches at a conclusion that the impugned decision under Annexures-5 and 6 are liable to be set aside with the matter remitted for a fresh decision in the suit on the application Order 7 Rule 11 CPC received from the petitioner. 7. 8. Accordingly, it is ordered. In the result, the writ petition stands allowed. As a necessary corollary, the impugned decision under Annexure-6 by judgment dated 29th June, 2024 in Civil Revision No.03 of 2023 by learned 1st Additional District Judge, Khurda is hereby set aside so also the order under Annexure-5 in CS No.353 of 2022 with the matter remanded back for a fresh decision on the application as at Annexure-3 filed in terms of Order 7 Rule 11 CPC with a direction to learned Civil Judge (Junior Division), Khurda to pass necessary orders thereon considering the question of jurisdiction with reference to the provisions of the Act. 9. In the circumstances however, there is no order as to costs. 10. Urgent certified copy of this order be issued as per rules. (R.K. Pattanaik) Judge TUDU Signature Not Verified Digitally Signed Signed by: THAKURDAS TUDU Reason: Authentication Location: OHC,CTC Date: 04-Mar-2025 10:48:38 Page 4 of 4