Allowed

Gitanjali Sahoo v. Gopal Charan Behera

Orissa HC15 Feb 2023SAO/17/2010

Case brief

AI extract

What is this about?

The High Court of Orissa disposed of multiple miscellaneous applications and a special appeal. It allowed prayers for condoning delay in substitution/abatement and directed substitution of legal representatives. In the main appeal regarding a civil suit, the court set aside the lower appellate court's judgment refusing to frame an issue on title and interest, noting the lower court lacked competen

What did the court decide?

The prayer for substitution/condonation was allowed. The judgment passed by the First Appellate Court was set aside. The plaintiff is not precluded from filing a fresh suit for declaration of title.

Gitanjali Sahoo Vs Gopal Charan Behera — Property and Title | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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SAO No.17 of 2010

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Gitanjali Sahoo & Ors.

….

Appellants

-versus-

Raj Kishor Behera & Ors.

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…. Respondents

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CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY

ORDER

15.02.2023

Order No

11. Misc. Case No.36 of 2012

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1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.

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2. Heard Mr. S.S. Das, learned Sr. Counsel appearing for the Appellants and Mr. Sambit Mohanty, learned counsel appearing for the sole Respondent.

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3. This is an application filed for condonation of delay in taking steps for substitution as well as for setting aside abatement as against the deceased Respondent.

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4. Considering the grounds taken and the submission of the learned counsel appearing for the Opp. Parties that he has got no objection to the prayer, the prayer in the Misc. Case is allowed.

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5. Accordingly, the Misc. Case is disposed of.

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(Biraja Prasanna Satapathy) Judge

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12. Misc. Case No.37 of 2012

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// 2 //

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1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.

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2. Heard Mr. S.S. Das, learned Sr. Counsel appearing for the Appellants and Mr. Sambit Mohanty, learned counsel appearing for the sole Respondent.

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3. This is an application filed for setting aside the abatement of the SAO No. 17 of 2010 as against the present Respondent.

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4. Considering the grounds taken and the submission of the learned counsel appearing for the Opp. Parties that he has got no objection to the prayer, the prayer for abatement is allowed.

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5. Accordingly, the Misc. Case is disposed of.

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(Biraja Prasanna Satapathy) Judge

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13. Misc. Case No.38 of 2012

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1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.

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2. Heard Mr. S.S. Das, learned Sr. Counsel appearing for the Appellants and Mr. Sambit Mohanty, learned counsel appearing for the sole Respondent.

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3. This is an application filed for substitution of the deceased sole Respondent.

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4. Considering the grounds taken and the submission of the learned counsel appearing for the Opp. Parties that he has got no objection to the prayer, the prayer for substitution is allowed. The legal representatives of deceased Respondent be taken on record as Respondent Nos. 1(a) to 1(d).

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Page 2 of 6

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// 3 //

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5. Consolidated copy of the cause title filed in Court be placed in appropriate place.

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6. Accordingly, the Misc. Case is disposed of.

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(Biraja Prasanna Satapathy)

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Judge

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14. I.A. No.27 of 2021

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1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.

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2. Heard Mr. S.S. Das, learned Sr. Counsel appearing for the Appellants and Mr. Sambit Mohanty, learned counsel appearing for the Respondents.

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3. This is an application filed for condonation of delay in taking steps for substitution as against the deceased Appellant No. 3.

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4. Considering the grounds taken and the submission of the learned counsel appearing for the Opp. Parties that he has got no objection to the prayer, the prayer in the I.A. is allowed.

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5. Accordingly, the I.A. is disposed of.

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(Biraja Prasanna Satapathy) Judge

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15. I.A. No.28 of 2021

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1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.

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2. Heard Mr. S.S. Das, learned Sr. Counsel appearing for the Appellants and Mr. Sambit Mohanty, learned counsel appearing for the Respondents.

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Page 3 of 6

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// 4 //

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3. This is an application filed for setting aside the abatement of the SAO No. 17 of 2010 as against the Appellant No. 3.

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4. Considering the grounds taken and the submission of the learned counsel appearing for the Opp. Parties that he has got no objection to the prayer, the prayer for abatement is allowed.

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5. Accordingly, the I.A. is disposed of.

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(Biraja Prasanna Satapathy)

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Judge

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16. I.A. No.29 of 2021

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1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.

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2. Heard Mr. S.S. Das, learned Sr. Counsel appearing for the Appellants and Mr. Sambit Mohanty, learned counsel appearing for the Respondents.

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3. This is an application filed for substitution of the deceased Appellant No. 3.

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4. Considering the grounds taken and the submission of the learned counsel appearing for the Opp. Parties that he has got no objection to the prayer, the prayer for substitution is allowed. The legal representatives of deceased Appellant No. 3 be taken on record as Appellant Nos. 3(a) to 3(g).

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5. Consolidated copy of the cause title filed in Court be placed in appropriate place.

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6. Accordingly, the I.A. is disposed of.

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(Biraja Prasanna Satapathy) Judge

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Page 4 of 6

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// 5 //

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17. SAO No.17 of 2010

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1. Heard Mr. S.S. Das, learned Sr. Counsel appearing for the Appellants and Mr. Sambit Mohanty, learned counsel appearing for the Respondents.

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2. The Appellants are the Defendants in C.S. No. 141 of 2003 disposed of by the learned Civil Judge (Jr. Division), Jagatsinghpur vide Judgment and decree dtd.17.08.2006.

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3. Learned Sr. Counsel contended that the Respondent-Plaintiff filed C.S. No. 141 of 2003 with a prayer for permanent injunction. The said prayer was rejected by the learned Trial Court vide Judgment and decree dtd.17.08.2006. The Plaintiff-Respondent being aggrieved by such Judgment and decree, approached the learned Addl. District Judge, Jagatsinghpur in RFA No. 43 of 2006. But the learned 1^st Appellate Court without having any competency while remanding the suit for fresh disposal, directed for framing of following issue in Para 18:-

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“As to whether the plaintiff has got any subsisting right, title, interest and possession over the suit land in spite of the claim made by the defendant No. 1 that order has been passed in his favour on 16.02.86 by the O.E.A. Collector, Jagatsinghpur in W.E.A. Case No. 3049/84 in respect of the suit land and order passed in her favour by the consolidation officer on 13.1.99 in RRC No. 687/96?”

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4. It is contended that since the Plaintiff-Respondent has not filed the suit seeking declaration of right, title & interest, such an issue cannot be framed in a suit for injunction simplicitor. Accordingly, it

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Page 5 of 6

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// 6 //

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is contended that the impugned Judgment and decree is not sustainable in the eye of law.

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5. Mr. Sambit Mohanty, learned counsel appearing for the Respondent-Plaintiff on the other hand contended that since the title of the Respondent was earlier declared by the competent Court, there is no necessity to go for a suit seeking declaration of right title interest and accordingly the Respondent-Plaintiff filed the suit for injunction simplicitor. However, it is fairly submitted that since the Respondent-Plaintiff has no dispute with regard to right title interest over the suit land, the action of the learned 1^st Appellate Court in remanding the matter for fresh adjudication with a direction to frame the issue on the question of right, title & interest was not required. However, Mr. Mohanty, learned counsel appearing for the Respondents-Plaintiff contended that in view of such dispute, the Respondents-Plaintiff be permitted to file a fresh suit seeking declaration of the right title interest and other consequential relief.

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6. In view of the submissions made by the learned counsel appearing for the Parties, this Court is inclined to set aside the impugned Judgment passed by the learned 1^st Appellate Court on 17.03.2010 in RFA No. 43 of 2006 by confirming the Judgment and decree passed by the learned Trial Court. However, the Respondents-Plaintiffs are not precluded to bring a fresh suit seeking declaration of right title interest over the suit land and other reliefs, if they so like.

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7. The appeal is disposed of accordingly.

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(Biraja Prasanna Satapathy) Judge

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Sneha

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Gitanjali Sahoo v. Gopal Charan Behera

Case brief

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Gitanjali Sahoo v. Gopal Charan Behera

Case brief

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