Kanchan Mishra Vs Golakha Ch.Swain

Assailing the failure to exercise the jurisdiction by the learned Civil Judge, (Senior Division), Jajpur, while rejecting the petition vide order dated 26.03.2018 under clauses (a) and (d) of Rule 11 of Order VII for dismissal of Suit, bearing C.S. No.638 of 2017, the petitioner has approached this Court by way of this Civil Revision Petition under Section 115 of the of the Code of Civil Procedure, 1908 (for short “CPC, 1908”) with the following prayer(s):

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“Under these circumstances, the Petitioner prays that your honour would be graciously pleased to admit the Civil Revision Petition, call for the L.C.R. from the Trail Court and after hearing the parties allowed the petition on setting-aside the order dated 26.03.2018 passed in C.S. No.638 of 2017 by the learned Civil Judge (Senior Division), Jajpur.

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And

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May pass any other order/orders, direction/directions as this Hon’ble Court deem fit and proper;

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And

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for this act of kindness the petitioner shall as in duty bound, ever pray.”

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Mr. P.K. Singh, learned counsel appearing for the petitionerDefendant No.1 submitted that after publication of Record of Right (RoR), it is deemed that the Plaintiffs-opposite parties have knowledge and, therefore, the suit being filed belatedly in the year 2017 is barred by limitation which fact has not been appropriately appreciated by the learned Civil Judge, (Senior Division), Jajpur. So the Defendants should not have been asked to contest the suit.

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3.1. He also submitted that the order dated 26.03.2018 passed in C.S. No.638 of 2017 is palpably erroneous as the defendants’ branch had purchased the suit land by executing registered sale deed on 02.11.1983, i.e., much prior to the preparation of Hal RoR. Such being the position, the Plaintiffs having not filed the suit within three years from the date of publication of RoR, the suit is not maintainable in the eye of law being barred by limitation which clearly falls within the scope of clause (d) of Rule 11 of Order VII, CPC.

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Such submission as advanced before this Court, in absence of opposite parties at the time of call despite service of notice and appearance, was also argued before the learned trial Court, and considering the same it was observed by the learned Civil Judge (Senior Division) held that the Plaintiffs have got the cause of action to file the suit which can be decided after framing specific issue in the suit. Further reason was also assigned that the service of notice on all the defendants were not complete by the date of passing of the impugned order.

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Perused the record. After hearing the counsel for the petitioner, this Court could not be made satisfied with respect to maintainability of civil revision petition in term of amendment to the provision of Section 115, CPC. On scrutiny of the cause title of the

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Civil Revision Petition it is observed that the petitioner has clearly made statement as follows:

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“ the Suit out of which this Revision arises is valued at Rs.1,99,000/for the purpose of Court fees and jurisdiction and this Revision is also valued accordingly and a fixed Court fees of Rs.45/- is paid herewith” .

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A cursory glance at copy of the plaint as furnished to this Court by enclosing to the Civil Revision Petition (Annexure-1) would reveal at paragraph-17 thereof that,

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“That prayer for declaration of right, title, interest and possession of plaintiffs over suit land as per Registered Sale Deed No.2379, dt.02.11.1983 is valued at Rs.1,95,000/-, prayer for confirmation of possession of plaintiffs over suit land is valued at Rs.2,000/-, prayer for preparation of M.S. R.O.R. in respect of suit Khata is illegal and wrong is valued at Rs.1000/-, prayer for permanent injunction is valued at Rs.1000/- in all the suit is valued at Rs.1,99,000/- for the purpose of courtfees and jurisdiction the required Court-fee of Rs.10,185 is payable thereon***”

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From the above factual position it is unambiguous that the valuation of the suit is Rs.1,99,000/-. In view of the Code of Civil Procedure (Odisha Amendment) Act, 2010, which came into force with effect from 02.11.2010 [published in the Odisha Gazette, Extraordinary No.1785, dated 02.11.2010], the present civil revision petition is not maintainable before this Court.

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7.1. For benefit of understanding, the substituted Section 115 as amended by virtue of the Code of Civil Procedure (Odisha Amendment) Act, 2010 has been reproduced hereunder:

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“115.Revision.—

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(1) The High Court, in cases arising out of original suits or other proceedings of the value exceeding five lakhs rupees and the District Court, in any other cases, including a case arising out of an original suit or other proceedings instituted before the commencement of the Code of Civil Procedure (Odisha Amendment) Act, 2010, may call for the record of any case which has been decided by any Court subordinate to the High Court or the District Court, as the case may be, and in which no appeal lies thereto, and if such subordinate Court

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appears—

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(a) to have exercised a jurisdiction not vested in it by law; or

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(b) to have failed to exercise a jurisdiction so vested; or

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(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity,

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the High Court or the District Court, as the case may be, may make such order in the case as it thinks fit :

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Provided that in respect of cases arising out of original suits or other proceedings of any valuation decided by the District Court, the High Court alone shall be competent to make an order under this section :

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(2) The High Court or the District Court, as the case may be, shall not under this section, vary or reverse any order, including an order deciding an issue, made in the course of a suit or other proceedings, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.

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(3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by High Court or District Court, as the case may be.

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Explanation.—

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In this section, the expression ‘any case which has been decided’ includes any order deciding an issue in the course of a suit or other proceeding.”

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In view of the above provision contained in the CPC, this Court having found that the valuation of the suit and revision is less

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than Rs.5,00,000/- and the order dated 26.03.2018 being passed by the Civil Judge (Senior Division), Jajpur, has no jurisdiction to entertain the Civil Revision Petition on the admitted factum that the valuation of the suit is Rs.1,99,000/-.

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It may also be noteworthy to refer to Section 2 of the Odisha Civil Courts Act, 1984 which is to the following effect:

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“2. Classes of Civil Courts.—

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(1) There shall be the following classes of Civil Courts under this Act, namely: (a) The Court of the District Judge which shall include the Court of the Additional District Judge; (b) The Court of the Civil Judge (Senior Division) which shall include the Court of the Additional Civil Judge (Senior Division) and; (c) The Court of Civil Judge (Junior Division) which shall include the Court of Additional Civil Judge (Junior Division).

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(2) The Court of the District Judge shall be the principal Court of original civil jurisdiction in the district.

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Explanation.— For the purposes of this sub-section the expression “District Judge” shall not include an Additional District Judge.” Under Section 6 of the said Act makes it clear that subject to the superintendence of the High Court, the District Judge, shall have administrative control over all the Civil Courts under this Act within the local limits of his jurisdiction. Section 2(4) of the CPC defines the term “district” to mean “local limits of the jurisdiction of a principal civil court of original jurisdiction (hereinafter called a “District Court”, and includes the local limits of the ordinary original civil jurisdiction of a High Court”.

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In view of the aforesaid clear provisions as discussed there is no doubt in mind that this Court has no jurisdiction to entertain the

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present civil revision petition. Accordingly, the CRP stands dismissed and all interim orders passed in the present case stand vacated. 11. Registry may communicate this order to the court concerned forthwith.

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(M.S. Raman) Judge

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Laxmikant

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Signature Not Verified

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Digitally Signed Signed by: LAXMIKANT MOHAPATRA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 13-Sep-2024 11:10:23

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Kanchan Mishra v. Golakha Ch.Swain

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Kanchan Mishra v. Golakha Ch.Swain

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