Dismissed

Laxminarayan Swain Mohapatra v. Priyalata Swain

Orissa HC24 Apr 2023CMP/110/2023

Case brief

AI extract

What is this about?

This Court dismissed the petitioner's civil revision under Order XVIII Rule 17 CPC seeking to recall the order closing his evidence. The petitioner, claiming adoption status, had sought multiple adjournments but failed to present substantive evidence until contesting a similar recall application, leading the Court to reject the belated excuse of illness.

What did the court decide?

The application to recall the order closing evidence was dismissed, and the civil revision petition was dismissed accordingly.

Laxminarayan Swain Mohapatra Vs Priyalata Swain — Property and Title | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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CMP No. 110 of 2023

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Laxminarayan Swain Mohapatra …. Petitioner Mr.Surya Prasad Mishra, Senior Advocate being assisted by N.Sarakar, Advocate

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-versus-

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Priyalata Swain Mohapatra and others …. Opp. Parties Mr. Biswajit Moharana, Advocate [For Opposite Party Nos.1(a) to1(d)]

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CORAM:

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JUSTICE K.R. MOHAPATRA

ORDER

Order No.

24.04.2023

This matter is taken up through Hybrid mode.

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Order dated 17^th January, 2023 (Annexure-5) passed by learned Senior Civil Judge, Puri in OS No.245 of 1972 (FD) is under challenge in this CMP, whereby an application filed by the Petitioner to recall the order dated 30^th August, 2022 has been dismissed.

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Mr. Mishra, learned Senior Advocate appearing for the

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Petitioner submits that OS No.245 of 1972 was filed by one Aparna Bewa, wife of late Jayakrushna Swain Mohapatra for partition. The suit was preliminarily decreed vide judgment dated 12^th August, 1975 with the following order:-

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“The suit be decreed preliminarily in part for partition for the aforesaid reliefs. Costs be borne by the parties in proportion to their interest in the suit properties. In case, amicable partition is not reached within a month hence, the parties be at liberty to make move and get the decree made final to crave out their respective shares.”

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Page 1 of 5

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// 2 //

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Aparana Bewa died in the 1989. Thereafter, the Petitioner being the adopted son of Jayakrushna Swain Mohapatra and Aparna Bewa, filed a petition to make the preliminary decree final. The Opposite Parties, who are Defendants in the suit, file their objection stating that the Petitioner is not the adopted son of Aparna Bewa. He was all throughout known as son of Gangadhar Das Mohapatra of Baseli Sahi and has received compensation in that capacity under the Land Acquisition Act. Thereafter, the matter was posted for leading evidence on behalf of the Petitioner. After several adjournments at the instance of the Petitioner, the matter was posted on 30^th August, 2022 for the said purpose. When the Petitioner sought for adjournment, learned trial Court dismissing such application, closed the evidence on behalf of the Petitioner. An application was also filed under Order XVIII Rule 17 CPC to recall the said order which was also dismissed vide order dated 2^nd December, 2022. Assailing the same, the Petitioner had filed CP No.1263 of 2022. Since the petition to recall the order dated 30^th August, 2022 was not properly couched, learned counsel for the Petitioner withdrew the CMP to enable the Petitioner to file a better application. Accordingly, this Court, vide order dated 12^th December, 2022, disposed of the CMP with an observation that ‘In view of such submission, this Court without expressing any opinion on the submission made by learned counsel for the Petitioner disposes of this CMP as withdrawn.’. Accordingly, an application enclosing the medical certificate in support of illness of the Petitioner was filed. Learned trial Court, without taking the same into consideration, dismissed the application holding that similar such application had already been dismissed

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Page 2 of 5

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// 3 //

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and this Court without granting any opportunity to file fresh application, disposed of the CMP as withdrawn.

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3.1 It is his submission that if an opportunity is given the Petitioner can adduce his evidence in one day without wasting further time of the Court. Mr. Mishra, learned Senior Advocate, therefore, prays for setting aside the impugned order under Annexure-5 with a direction to learned trial Court to accept the evidence in affidavit of the Petitioner on terms and conditions as may be fixed this Court.

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Mr. Moharana, learned counsel for the contesting Opposite Parties objects to the above submission and contends that the Petitioner has no locus standi to initiate the final decree proceeding. He (Petitioner) claims to be the adopted son of Aparana Bewa. It is also claimed that he was adopted in the year 1988, just after one year before said Aparna Bewa breathed her last. It is his submission that in spite of several opportunities right from the year 2018 being given, the Petitioner did not adduce evidence. As such, the evidence from the side of the Petitioner was closed on 30^th August, 2022. In the application under Order XVIII Rule 17 CPC filed earlier, no plea to the effect that the Petitioner was suffering from Dengue fever was taken. The said application was rejected vide order dated 2^nd December, 2022 and the Petitioner had unsuccessfully challenged the same before this Court. It is only after disposal of the earlier CMP No.1263 of 2022, the Petitioner took the plea that he was suffering from Dengue fever from 28^th August, 2022 till 5^th September, 2022 and was advised complete bed rest. Such a plea is an afterthought and only to harass the Opposite

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Page 3 of 5

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// 4 //

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parties. As such, a subsequent application on a different plea is not maintainable.

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4.1 It is his submission that the Petitioner has other remedy to get his grievance redressed by establishing that he is the son of late Aparna Bewa. He, therefore, prays for dismissal of the CMP.

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Considering the submissions of learned counsel for the parties and on scrutiny of record, it appears that the Petitioner initiated the final decree proceeding on the plea that he was the adopted son of Aparna Bewa. Said Aparna Bewa died in the year 1989. The Final Decree proceeding was initiated in the year 2002 and there was serious objection by the Opposite Parties to the locus standi of the Petitioner to initiate such final decree proceeding. Although the Petitioner was given several opportunities right from 2018 till 30^th August, 2022 to adduce evidence in support of his case, but he failed to do so and thus the evidence from the side of the Petitioner was closed vide order dated 30^th August, 2022. An application under Order XVIII Rule 17 CPC was filed, which was dismissed vide order dated 2^nd December, 2022. The Petitioner unsuccessfully challenged the same in CMP No.1263 of 2022. Learned counsel for the Petitioner prays for withdrawal of the said CMP to enable the Petitioner to file a better application before learned trial Court. This Court without expressing any opinion on the merit of the said application made by the Petitioner, disposed of the said CMP, vide order dated 12^th December, 2022. Thereafter, another application under Order XVIII Rule 17 CPC was filed along with a medical certificate stating that the Petitioner was suffering from Dengue from 28^th August, 2022 to

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Page 4 of 5

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// 5 //

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5^th September, 2022 and was advised complete bed rest. Said plea was never taken by the Petitioner at any stage either at the time of seeking for adjournment on 30^th August, 2022 or in the earlier petition filed under Order XVIII Rule 17 CPC.

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It is, however, submitted by learned Senior Advocate that although the nomenclature of the petition is not correct, but learned trial Court ought to have looked into the averments and prayer made in the petition filed under Order XVIII Rule 17 CPC to grant the relief. This submission of Mr. Mishra, learned Senior Advocate is legally tenable, but in the facts and circumstances of the case, more particularly the plea of the Petitioner claiming himself to the adopted son, has filed the Final Decree proceeding, which is yet to be established, this Court feels that learned trial Court has committed no error in dismissing the application.

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Since right from 2018 till 30^th August, 2022 the Petitioner was only taking adjournments to adduce evidence in support of his case, this Court is of the considered opinion that he is not entitled to the relief sought for. As such, I am not inclined to interfere with the order under Annexure-5 impugned herein.

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Accordingly, the CMP being devoid of any merit stands dismissed.

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Issue urgent certified copy of the order on proper application.

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s.s.satapathy

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Page 5 of 5

Laxminarayan Swain Mohapatra v. Priyalata Swain

Case brief

What is this about?

What did the court decide?

Laxminarayan Swain Mohapatra v. Priyalata Swain

Case brief

What is this about?

What did the court decide?

What the court decided

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