Dismissed

Jogendranath Pradhan v. Purna Chandra Mohapatra

Orissa HC12 Apr 2021CMP/641/2015

Case brief

AI extract

What is this about?

Court dismissed a connection of the case petition (CMP) filed to stay civil proceedings under Sections 10 and 151 CPC. The court held there is no legal impediment to proceed with the eviction suit as the subject matter differs from the pending writ petitions challenging an OLR order.

What did the court decide?

CMP dismissed; no stay granted on the civil suit proceedings pending writ petitions.

Jogendranath Pradhan Vs Purna Chandra Mohapatra — Partition | Orissa HC (2021)

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CMP No. 641 of 2015

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12.04.2021

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This matter is taken up through video conferencing mode.

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Heard Mr. S. Chakravarty, learned counsel for the petitioners and Mr. A.K.Tripathy, learned opposite party No.1.

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Petitioners in this petition seek to assail the order dated 20.04.2015 (Annexure-5) passed by learned Civil Judge (Junior Division), Aska in CS No.42 of 2011, whereby he rejected an application filed by the petitioners/defendant Nos. 2 to 5 under Section 10 CPC to stay further proceeding of the suit till disposal of W.P.(C) No.4090 of 2011 and W.P.(C) No.9457 of 2011. As the petition under Section 10 CPC was kept pending, another application under Section 151 CPC was filed. Learned Civil Judge without considering both the petitions from their proper perspective, refused to grant stay of further proceeding of the suit. Assailing the same, this CMP has been filed.

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Mr. Chakravarty, learned counsel for the petitioners submits that the land in question was the subject matter of dispute in OLR Case No.270 of 1985, which was dropped. Against the same, the petitioners preferred appeal No.1 of 2009 under Section 58 of the OLR Act and the same was

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allowed declaring title of the petitioner. The order passed in the said appeal was under challenge before this Court in W.P.(C) No.4090 of 2011, W.P.(C) No.6291 of 2011 and W.P.(C) No.9457 of 2011, which are sub judice . In that view of the matter, defendant Nos.2, 4 and 5 filed an application under Section 10 CPC to stay further proceeding of the suit till disposal of the aforesaid writ petitions. Learned Civil Judge, kept the said petition pending without adjudication, for which, the petitioners filed another application under section 151 CPC for early consideration of the petition under section 10 CPC. But, learned Civil Judge without considering the matter from its proper perspective dismissed the said applications, holding that there is no bar for proceeding with the suit during pendency of the writ petitions, as aforesaid. Assailing the same, this CMP has been filed. In support of his case, he relied upon the case of Manika Dei and others –v- Dhadia Madgul and others , reported in 61 (1986) CLT 436, paragraph-12 of which reads as follows:-

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“ 12. After exposition of the principles which centre round Section 10 and Explanation VIII of Section 11, it is to be considered whether in the facts and circumstances of the present case Title Suit

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No. 132 of 1979 now pending in the court of the Munsif, First Court, Cuttack should be stayed till disposal of O.J.C. Nos. 111 of 1983 and 112 of 1983. To recapitulate, the House Rent Controller found that there was no relationship of landlord and tenant between opposite party No. 1 and the petitioners in respect of the house on the suit land. The learned Chief Judicial Magistrate reversed the finding and held that there was existence of relationship of landlord and tenant between them. In the writ petitions this Court may either uphold the finding recorded by the learned House Rent Controller or that of the learned Chief Judicial Magistrate. In either case, the ultimate finding, being the finding of "a Court of limited jurisdiction" will operate as res judicata in the suit on application of the provisions of Explanation VIII to Section 11, If the finding of the learned House Rent Controller of absence of relationship of landlord and tenant is upheld, no prejudice is likely to be caused to either party because, in order to succeed in the suit, the petitioners shall have to prove title in respect of the suit land by way of gift and adverse possession. Opposite party No. 1 shall also prove his title and possession in respect thereof by virtue of the sale deed. But in case the finding of the learned Chief Judicial Magistrate of existence of relationship of landlord and tenant between the parties is upheld and as this finding will operate as res judicata by application of the provisions of Explanation VIII to Section 11 in the suit, then the petitioners shall be precluded from establishing acquisition of title in respect of the suit by gift, as well as, by adverse possession. This is because, the finding of existence of relationship of landlord and tenant between the parties having been arrived at by "a Court of limited jurisdiction" which is competent to decide the issue under Section 7 of the Act will operate as res

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judicata in the suit subsequently instituted although "the Court of limited jurisdiction" is not competent to try the issue which has been raised in the suit. This being the position, the conclusion is irresistible that till disposal of O.J.C. Nos. 111 of 1983 and 112 of 1983 of this Court, Title Suit No. 132 of 1979 pending in the court of the Munsif, First Court, Cuttack should remain stayed.”

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4.1 It is his submission that since the subject matter of dispute involved in the suit is sub judice in aforesaid two writ petitions, interest of justice will be best served if the suit is stayed till disposal of the aforesaid writ petitions to avoid multiplicity of litigation. He, therefore, prays for setting aside the impugned order under Annexure-5 and to stay further proceeding of the C.S. No. 42 of 2011 till disposal of the aforesaid writ petitions.

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Learned counsel for plaintiff /opposite party No.1 submits that Title Suit has been filed for eviction of the petitioners, who are tenants in respect of plot No.224/680 under Khata No.46/365 in mouza Khambeswari Patana in the district of Ganjam. The land involved in the OLR Case is with regard to plot No.224/799 under Khata No.46/496 in mouza Khambeswari Patana to an extent of Ac.0.028 decimal. Thus, the land involved in the OLR case has no nexus with the suit land. He

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further submits that since the petitioners’ claim that their title has been declared in respect of the suit land in OLR proceeding that can be considered by the learned Civil Judge in course of adjudication of the suit. It is further submitted that the order passed by the OLR authorities have not been stayed by this Court in the aforesaid writ petitions. Thus, there is no legal impediment in proceeding with the suit, which is filed for eviction simpliciter. He, therefore, prays for dismissal of the CMP.

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Heard learned counsel for the parties and perused the materials on record. It is not in dispute that the TS No.42 of 2011 has been filed by plaintiff/opposite party No.1 for eviction of defendants from the suit land. It is submitted that the evidence of the plaintiff has been closed. Therefore, staying of the suit will seriously prejudice the plaintiff/opposite party No.1. There is no dispute to the fact that CS No.42 of 2011 has been filed for eviction of the defendants claiming that they are tenants under the petitioner in respect of plot No.224/680 under khata No.46/365 to an extent of Ac.0.043 decimal in mouza Khambeswari Patna, corresponding to Sabik Khata No. 39, Survey No. 224. But, the defendants in the

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written statement claim that they have received ROR in respect of Khata No.46/496, plot No.224/799 to an extent of Ac.0.028 decimal in OLR Case No.270/85. In para-12 of the written statement, the petitioners have made specific averments that the Tahasildar, Aska issued the ROR in favour of Bhanumati Pradhan, wife of Kasinath Pradhan and her sons Jogendra Pradhan, Santosh Kumar Pradhan, Saroj Kumar Pradhan and Syamalendu Pradhan of Khambeswari Patna, Aska in respect of Khata No.46/496, plot No.224/799, to an extent of Ac.0.028 decimal. Thus, prima facie it appears that the land already settled in favour of the petitioners in OLR proceeding is not the suit land. Moreover, when the petitioners claim that the suit land has been recorded in their name in the OLR Proceeding they can defend their case by adducing evidence and the learned Civil Judge is competent to take into consideration the same at the time of adjudication of the suit. It is not disputed at the Bar that the order passed in OLR case has not been stayed by this Court in the aforesaid writ petitions. Thus, there is no impediment on the part of the learned Civil Judge to proceed with the matter in

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accordance with law, which is filed for eviction simpliciter. There is no dispute to the ratio decided in Manika Dei (supra). However, there cannot be any straight jacket formula to stall the proceeding of the suit during pendency of the writ petitions, which depends upon the facts and circumstances of the case. Further, the order to be passed in the aforesaid writ petitions will not operate as res judicata in adjudicating the present suit, as the subject matter of dispute is different in the suit and in the OLR proceeding.

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In view of the discussions made above, this Court is of the considered view that there is no legal impediment in proceeding with the suit during pendency of the aforesaid writ petitions W.P.(C) No.4090 of 2011, W.P.(C) No.6291 of 2011 and W.P.(C) No.9457 of 2011, which shall be decided on their own merit.

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In that view of the matter, this Court finds no infirmity in the order under Annexure-5. Accordingly, the CMP is dismissed.

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8.1 The connected writ petitions be listed in the 1^st week of May, 2021 before the assigned Bench.

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8.2 As restrictions due to the COVID-19 situation are continuing, learned counsel for the parties may

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utilize a soft copy of this order available in the High Court’s website or print out thereof at par with certified copy in the manner prescribed, vide Court’s Notice No.4587 dated 25th March, 2020.

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……................................

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K.R. Mohapatra,J.

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Jogendranath Pradhan v. Purna Chandra Mohapatra

Case brief

What is this about?

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Jogendranath Pradhan v. Purna Chandra Mohapatra

Case brief

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