Dismissed

Durgesh Nandini Dash v. Renuka Manjari Das

Orissa HC6 May 2024CMP/1437/2017

Case brief

AI extract

What is this about?

Petitioner challenged the trial Court's rejection of an application for judgment on admission under Order XII Rule 6 CPC. Bench held that鉴于 a counter claim for partition existed, no part decree could avoid confusion, and thus dismissal of the CMP was correct.

What did the court decide?

CMP dismissed; interim order vacated; parties directed to cooperate for early disposal of suit.

Durgesh Nandini Dash Vs Renuka Manjari Das — Partition | Orissa HC (2024)

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Signature Not Verified

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Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 07-May-2024 15:56:42

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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CMP No. 1437 OF 2017

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Durgesh Nandini Dash …. Petitioner

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Ms. Gayatri Das, Advocate

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-versus-

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…. Renuka Manjari Das another Opp. Parties

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CORAM: JUSTICE K.R. MOHAPATRA

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Order No.

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ORDER 06.05.2024

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1. This matter is taken up through hybrid mode.

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Order dated 6^th September, 2017 (Annexure-1) passed in C.S. No.9355 of 2015 is under challenge in this CMP, whereby learned 2^nd Additional Civil Judge (Senior Division), Bhubaneswar rejected an application filed by the PlaintiffPetitioner under Order XII Rule 6 CPC to pass a judgment on admission.

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Ms. Das, learned counsel for the Petitioner submits that the suit has been filed for declaration of right, title, interest and for permanent injunction. It is the case of the Plaintiff-Petitioner that she along with Defendant No.1 purchased the suit property jointly. They are entitled to half share each in the suit property. In spite of the same, Defendant No.1 alienated the property more than her share to the Opposite Party No.2, who is a real estate developer. Since Defendant No.2-Opposite Party No.2 created disturbance in peaceful possession of the Petitioner, the suit has been filed. In the suit, although summons on Defendant No.1 has been made sufficient, but she did not appear. Defendant No.2

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Signature Not Verified

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Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 07-May-2024 15:56:42

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entered appearance and filed written statement stating that the Plaintiff is entitled to 50% share in the suit property, i.e., Ac.0.065 decimals. Thus, before settlement of issues, an application under Order XII Rule 6 CPC was filed by the Plaintiff to pass a judgment on admission of the Defendant No.2. Learned trial Court observed that along with the written statement a counter claim has been filed by the Defendant No.2 for partition. Thus, the suit requires adjudication by receiving evidence. It is further observed that Order XII Rule 6 CPC is a discretionary power of the Court and it did not think it proper to exercise the judicial discretion to pass a judgment on admission at a stage when issues have not been framed.

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It is further submitted by Ms. Das, learned counsel for the Petitioner that Defendant No.1 after alienating the property to Defendant No.2, is not cooperating with the Court. She has also not entered appearance before this Court although notice through Special Messenger was issued to her. Since, the Defendant No.2-Opposite Party No.2 stepped into the shoes of the Defendant No.1 and has admitted that the Plaintiff is entitled to 50% share in the suit property, the suit may be decreed on admission and judgment may accordingly be passed. She, therefore, prays for setting aside the impugned order under Annexure-1 and to direct learned trial Court to pass a judgment on admission.

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Considering the submission made by learned counsel for the Petitioner and on perusal of the record, it appears that allegation of the Plaintiff-Petitioner is that Defendant No.1 has alienated the property in access to her share. Although it is

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Signature Not Verified

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Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 07-May-2024 15:56:42

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admitted that the Plaintiff and Defendant No.1 are entitled to 50% each, i.e., Ac.0.065 decimals in the suit property, but no concession with regard to the validity of the sale deed was executed by Defendant No.1 in favour of Defendant No.2. In fact, a suit may be decreed partially under Order XII Rule 6 CPC. But, in the instant case, along with written statement a counter claim for partition has also been filed.

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In that view of the matter, part decree of the suit may create confusion and anomaly in passing the final judgment in the suit. Learned trial Court rightly observed that the jurisdiction of the Court under Order XII Rule 6 CPC is discretionary. The Court in a fit case may exercise the discretion. When learned trial Court discussing the rival claims of the parties refused to exercise its discretion, I find no reason to interfere with the same, more particularly, when Defendant No.2 filed objection with regard to maintainability of the petition under Order XII Rule 6 CPC.

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

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Since the suit is of the year, 2015, parties are directed to cooperate with learned trial Court for early disposal of the suit. 9. Interim order dated 4^th December, 2017 passed in Misc. Case No.1625 of 2017 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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Durgesh Nandini Dash v. Renuka Manjari Das

Case brief

What is this about?

What did the court decide?

Durgesh Nandini Dash v. Renuka Manjari Das

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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