Quashed

Kalpataru Ojha v. Bimala Rout

Orissa HC9 Dec 2016WP(C)/6076/2007

Case brief

AI extract

What is this about?

High Court quashed the trial court's dismissal of a petition under Order 1 Rule 8 CPC filed by plaintiffs regarding disputed land ownership. The Court held that rejecting the prayer merely on delay was counterproductive and in breach of the provision's objective to avoid multiplicity of litigation. The prayer to allow compliance was permitted.

What did the court decide?

The order of the trial court dated 16.4.2007 dismissing the petition was quashed and the prayer to comply with provisions of Order 1 Rule 8 CPC was allowed.

11. 09.12.2016 The petitioners by filing this application und er Article 227 of the Constitution seek quashment of an order dated 16.4.2007 passed by learne d Civil Judge (Jr.Divn.), Bhadrak in C.S. No. 33 of 1996-I.

2. The petitioners are the plaintiffs in the suit. They have filed the su it for declaration of their right, title, interest, confirmation of possession, demarcation an d injunction in so far as the suit land is concerned. It is their claim that some portion of t heir land although has been recorded as Govt. land under plot no. 3048 as public road yet they have been continuing to remain in possession of the same. In course of hearing, they have fil ed a petition under order 1 rule 8 of the Code of Civil Procedure. Although, this objection ha d been raised from the beginning, yet the petition has come to be filed after commencement of the hearing when the plaintiffs had already examined one witness from his side.

4. On perusal of the impugned order, it is seen that the petition has be en dismissed only for the reason that it has been filed at a belated stage. The plaintiffs cas e is that a portion of their land has been recorded under plot no. 3048 in the name of the Go vt. as public road. However, they claim to have been still in possession of the same. The opp. parties have been arraigned in the case as defendants they being adjoining land owners have b een raising objection for demarcation of the land belonging to the petitioners and taking the lead role, have been attempting to dispossess the plaintiff from that part of the suit land.

The move of the petitioners to permit them to comply with the provisio n of order 1 rule 8 of the Code has faced the resistance on the ground that in case such praye r is allowed then it would require amendment of the plaint and that is not permissible in view of the proviso coming to the inserted to the provision of order 6 rule 17 of the Code by way of amendment of the Code. Although the trial court has not assigned that as the reason yet the belated move has been taken to be the sole objection and that has been accepted in rejecting the prayer. When it is said that a portion of the land belonging to the petitioners has been r ecorded as Govt. land under a definite plot and it stands as public road and more specifically when such objection had been taken in the written statement, very much questioning the mainta inability of the suit for non-compliance of the said provision, it does not simply occur to me as to how the trial court merely on account of delay has gone to reject it.

5. The provision of order 1 rule 8 of the Code is mainly for public to in terest, avoid multiplicity of litigation and prevent conflict of decisions. So such a petition when is rejected merely on the ground of delay and thereafter the suit ends supposing in fav our of the petitioner-plaintiffs then certainly that would not bring the decision to finality and there remains all the possibility of further rounds of litigations concerning the same sub ject matter. Thus here in the case the reason assigned for rejection of petition would serve no useful purpose and rather it would be counterproductive. It appears that the trial court wh ile passing the order has not kept in mind the very purpose and objective behind the above pro vision of the Code which is an exception to the general rule with the scope, purpose and the o bjective remaining behind it to avoid multiplicity of the proceeding and conflict of decisions . The court has the power even in such cases to require the plaintiffs to obtain the leave and see that the notice is issued in accordance with the provisions standing substantially compli ed with before a decree is passed so as to bind all. The order in question thus is found to h ave been passed in breach of settled position of law.

6. For the aforesaid, I find it to be a fit case to exercise the jurisdic tion of this Court under Article 227 of the Constitution to quash the order dated 16.4.2007 pa ssed by the trial court. Accordingly, the order is quashed and the prayer of the petitioners ( plaintiffs) to permit them to comply the provisions of order 1 rule 8 of the Code is hereby al lowed.

Looking at the age of the suit, this Court directs the trial court to proceed further in the matter in accordance with law with expediency in order to see that the disposal of the suit takes place early.

Kalpataru Ojha v. Bimala Rout

Case brief

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Kalpataru Ojha v. Bimala Rout

Case brief

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