The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 29-Nov-2023 19:13:34 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 1327 OF 2023 Sujit Kumar Bhanja …. Petitioner Mr. Suvendu Kumar Ray, Advocate -versus- Sisir Kumar Bhanja and others …. Opp. Parties Mr. Suresh Chandra Dash, Advocate (Caveator) CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 28.11.2023 2. 1. This matter is taken up through hybrid mode. 2. Composite order dated 23rd September, 2023 (Annexure- 4) passed in C.S. No.1571 of 2011 is under challenge in this CMP, whereby learned Civil Judge (Senior Division), Bhubaneswar rejected two applications, one under Order VI Rule 17 CPC for amendment of the plaint and another, under Order XIII Rule 10 CPC to call for the case record in Criminal Proceeding No.23 of 2012 from learned Judge, Family Court, Bhubaneswar. 3. Mr. Ray, learned counsel for the Petitioner, at the outset, submits that he confines his prayer to the legality of rejecting an application under Order XIII Rule 10 CPC in this CMP. 4. Mr. Ray, learned counsel submits that Plaintiff No.2- Petitioner has been transposed as such after death of his mother, who was arrayed as Plaintiff No.2. The suit has been filed for partition of the properties recorded in the name of Defendant Nos.1 and 2. In order to substantiate that his mother had sufficient means to acquire the property, the Plaintiff No.2- Page 1 of 4 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 29-Nov-2023 19:13:34 // 2 // Petitioner filed an application under Order XIII Rule 10 CPC to call for case record in Criminal Proceeding No.23 of 2012 from the Court of learned Judge, Family Court, Bhubaneswar, wherein the affidavit of D.W.2, namely, Sunil Kumar Bhanja is available. In the said affidavit, he has categorically stated that Ashamani Bhanja, the mother of the Plaintiffs had sufficient means and she was staying in the house standing in the name of Defendant No.1. The said piece of evidence is required to be confronted to the D.W.2 for just adjudication of the suit. It is his submission that though the properties have been acquired in the name of Defendant Nos.1 and 2, but the parties to the suit are enjoying the same. Thus, it has acquired the character of a joint family property and is liable to be partitioned. In view of the above, the document sought for was necessary to be called for. Learned trial Court rejected the petition solely on the ground that evidence from both the sides have already been closed and application has been filed at a belated stage. It is also observed that the Plaintiffs had got sufficient opportunity to lead evidence in support of the plaint averment. The grounds on which the application was rejected are not sustainable in view of the aforesaid submission. Accordingly, he prays for setting aside the impugned order to the extent of rejecting an application under Order XIII Rule 10 CPC. 5. Mr. Dash, learned counsel for the Defendants-Opposite Parties vehemently objects to the same and submitted that the suit is at the stage of argument. The Plaintiff No.2 had the knowledge of such affidavit of D.W.2. As such, he could have obtained the certified copy of the same and confronted to D.W.2 Page 2 of 4 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 29-Nov-2023 19:13:34 // 3 // during his cross-examination. No such attempt has been made by the Plaintiff No.2. Thus, at a belated stage, the Plaintiff No.2 should not be allowed to patch up the lacuna. It is further submitted that the suit properties have been recorded in the name of Defendant Nos.1 and 2 and it is their self-acquired property. Thus, the same is not liable for partition. In order to linger the proceeding, such an application has been filed. Thus, learned trial Court has committed no error in rejecting such application. 6. Considering the rival contentions of the parties, this Court finds that both the parties have already adduced their evidence. It is, of course, submitted by Mr. Ray, learned counsel for the Petitioner that an application has been filed by Opposite Party Nos.3 to 5 to recall D.W.2, which is pending for consideration. Be that as it may, the Plaintiffs have already cross-examined D.W.2. There is no material on record to show that the Plaintiffs could not have obtained the certified copy of evidence in affidavit of D.W. 2 in Criminal Proceeding No.23 of 2012 of the Court of learned Judge, Family Court, Bhubaneswar and confronted it to D.W.2 at the time of his cross-examination. 7. Discretion under Order XIII Rule 10 CPC can be exercised at any stage of the suit. But the party seeking for such relief has to make out a case in his favour. In the instant case, the Plaintiff No.2-Petitioner had opportunity to obtain certified copy of the evidence in affidavit of D.W.2 in Criminal Proceeding No.23 of 2012 and confronted it to the D.W.2 at the time of his cross-examination. No case is made out that the Plaintiff No.2 was not in a position to get the said certified copy and confronted it to D.W.2 at the time of his cross-examination. Page 3 of 4 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 29-Nov-2023 19:13:34 // 4 // 8. In that view of the matter, this Court is of the considered opinion that learned trial Court has committed no error in dismissing the application under Order XIII Rule 10 CPC. 9. Accordingly, the CMP to the extent of rejecting an application under Order XIII Rule 10 CPC is dismissed and the said order is confirmed. Urgent certified copy of this order be granted on proper application. ms (K.R. Mohapatra) Judge Page 4 of 4