Disposed

Bibhuti B.Jesthy v. Loknath Sahoo

Orissa HC3 Jan 2023CMP/786/2014

Case brief

AI extract

What is this about?

The High Court dismissed a common petition filed under Section 34 of the CPC (Section 34 Order) seeking substitution of parties, condonation of delay, and a stay on interlocutory orders. It allowed substitution regarding deceased parties but dismissed the interim relief challenging a trial court rejection of a production order.

What did the court decide?

Substitution of parties allowed; abatement set aside; delay condoned; challenging CPL order (CMP) dismissed.

Bibhuti B.Jesthy Vs Loknath Sahoo — Property and Title | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 786 OF 2014 Bibhuti Bhusan Jethy and another …. Petitioners

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…. Petitioners Mr. H.B. Mangaraj, Advocate

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-versus-

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…. Opp. Parties Mr. Ramakanta Mohanty, Senior Advocate being assisted by Mr. D. Mohanty, Advocate (For Opp. Party Nos.1 and 2)

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Loknath Sahoo and others

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CORAM:

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JUSTICE K.R. MOHAPATRA

ORDER

Order No.

03.01.2023

I.A. Nos.212, 213 & 214 of 2020, IA Nos. 215, 216 of 2020

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This matter is taken up through hybrid mode.

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These are applications for substitution of deceased Petitioner No.1-Bibhuti Bhusan Jethi, setting aside abatement, condonation of delay in filing the substitution petition as against him as well as substitution of deceased Opposite Party No.3Maguni Dei and setting aside abatement as against her.

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Hearing learned counsel for the parties and on perusal of record, delay in filing the substitution petitions is condoned, abatement is set aside and proposed legal heirs of Petitioner No.1 as well as Opposite Party No.3 are allowed to be arrayed as parties to the CMP as per the schedules appended to the petitions for substitutions accordingly.

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All the IAs are allowed accordingly.

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(K.R. Mohapatra) Judge

P.T.O.

Page 1 of 4

// 2 //

10. CMP No. 786 OF 2014

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The Petitioners in this CMP seek to assail the order dated 15^th May, 2014 (Annexure-6) passed by learned 2^nd Additional Civil Judge (Senior Division), Cuttack in C.S. No.31 of 2005, whereby an application filed by the Plaintiffs-Petitioners to direct the Defendant No.4 to produce the original cancellation deed executed by Rajeev Sahoo on 16^th November, 1990, has been rejected.

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Mr. Mangaraj, learned counsel for the PlaintiffsPetitioners submits that the suit has been filed for declaration of right, title and interest over the suit land that for cancellation of the gift deed executed in favour of the Defendant Nos.1 and 2. It is his submission that the Plaintiffs-Petitioners do not have the copy of the cancellation deed dated 16^th November, 1990, which is a relevant document for just adjudication of the suit. Hence, an application was filed by the Plaintiffs-Petitioners to direct the Defendant No.4 to produce such document, who was in possession thereof. The Plaintiffs-Petitioners had also applied for certified copy of the said cancellation deed, but it was refused on the ground that the Plaintiffs are not entitled to get the certified copy. Learned trial Court without considering the same, rejected the application on the ground that the Plaintiffs did not produce any document to establish that they had applied for certified copy of the said document and it was refused. He further referring to a rejection note issued by the District Sub-Registrar, Cuttack under Annexure-3 submits that the copy application to obtain the certified copy of the cancellation deed dated 16^th November, 1990 was refused on the ground that the Plaintiffs-Petitioners were neither the executants nor claimants in respect of the said deed.

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Page 2 of 4

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// 3 //

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Mr. Mangaraj, learned counsel for the PlaintiffsPetitioners also referred to the information supplied to the Plaintiffs-Petitioners vide Letter dated 9^th July, 2014 under Annexure-7 issued by the Public Information Officer, District Sub-Registration Office, Cuttack intimating the applicant therein that he had sought for copy of two numbers of Book IV document by one Rajib Sahoo in favour of Mohan Sahoo in the year 1984 and 1990 respectively. The information was refused to be granted as per clause 3 of Rule 57 of Bihar and Odisha Registration Mannual that either the executant or claimant can obtain the certified copy of Book IV document. He, therefore, submits that in spite of best efforts, the Plaintiffs-Petitioners could not obtain the certified copy, which was not properly considered by learned trial Court. Hence, he prays for setting aside the impugned order under Annexure-6 and to remit the matter back to learned trial Court for fresh adjudication of the application taking into consideration the document under Annexures-3 and 7.

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Mr. Mohanty, learned Senior Advocate appearing for the Opposite Party Nos.1 and 2 submits that no document whatsoever was produced before learned trial Court to establish that the Plaintiffs-Petitioners had in fact made an application to get the certified copy of the cancellation deed executed by Rajeev Sahoo on 16^th November, 1990. Hence, learned trial Court has committed no error in dismissing the application.

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Considering the rival contentions of the parties and on perusal of the record, this Court finds that Annexure-3 relates to a document dated 12^th November, 1990 and not the cancellation deed dated 16^th November, 1990. Further from Annexure-7, it is

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Page 3 of 4

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// 4 //

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not clear the document in respect of which, the Petitioners, had in fact, sought for information.

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Law is well-settled that the Plaintiff will succeed in its own case. He could not depend upon the Defendant to succeed in the suit. The copy of the Plaint annexed to the CMP as Annexure-1 does not disclose that the document dated 16^th November, 1990 is with Defendant No.4. Thus, the application for a direction to the Defendant No.4 to produce the original cancellation deed executed by Rajeev Sahoo on 16^th November, 1990, is an afterthought. On a conspectus of the material available on record, it appears that the Plaintiffs-Petitioners do not produce any document to show that he had in fact applied for certified copy of the aforesaid document before the District Sub-Registrar, Cuttack. Further as discussed above, neither the document under Annexure-3 nor the document under Annexure-7 relates to the aforesaid document. Hence, entertaining the prayer to set aside the impugned order under Annexure-6 and to remit the matter back to learned trial Court for fresh consideration of the application will be an abuse of process of Court. In view of the above, I find no infirmity in the impugned order under Annexure-6.

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

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Interim order dated 26^th July, 2014 passed in Misc. Case No.731 of 2014 stands vacated.

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Urgent certified copy of this order be granted on proper application.

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(K.R. Mohapatra) Judge

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Page 4 of 4

Bibhuti B.Jesthy v. Loknath Sahoo

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Bibhuti B.Jesthy v. Loknath Sahoo

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