Kanak Vardhan Singh Deo Vs Ananga Udya Singh Deo

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Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CU TTACK Date: 17-Jan-2025 18:21:59

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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CMP No. 976 OF 2024

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(An application under Article 227 of the Constitution of India)

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Kanak Vardhan Singh Deo

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…. Petitioner -versus-

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Ananga Udya Singh Deo and others …. Opp. Parties

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Advocate for the Parties For the Petitioner : Mr. Amit Prasad Bose, Advocate For Opposite Parties : Mr. Milan Kanungo, Senior Advocate, Mr. Dillip Kumar Pradhan, Advocate (For Opposite Party No.1)

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CORAM:

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JUSTICE K.R. MOHAPATRA

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Heard and disposed of on : 17.01.2025

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J U D G M E N T

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1. This matter is taken up through hybrid mode.

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2. Order dated 1^st August, 2024 (Annexure-1) passed in CS No.70 of 2008 is under challenge in this CMP, whereby an application filed by Defendant No.1 to defer his examination till other Defendants are examined, has been allowed by learned 2^nd Additional Civil Judge (Senior Division), Bhubaneswar.

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3. Mr. Bose, learned counsel for the Petitioner submits that Plaintiff is the Petitioner and Defendant No. 1 is the Opposite Party No.1 in this CMP. The evidence of the Plaintiff has already been closed. When the suit was posted for examination of Defendant No.1, an application dated 19^th January, 2024 (Annexure-6) was filed to defer the examination of Defendant

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CMP No.976 of 2024

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Page 1 of 8

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Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CU TTACK Date: 17-Jan-2025 18:21:59

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No.1 till examination of other Defendants on the ground that Defendant No.1 had filed an application to call for the records from the Income Tax Department. The said application was rejected. Challenging the same, CMP No.389 of 2023 was filed before this Court, which is pending for adjudication.

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3.1 It is further submitted that learned trial Court erroneously applying the provisions of Order XVIII Rule 3-A CPC, allowed the petition. Mr. Bose, learned counsel submits that the provision under Order XVIII Rule 3-A CPC is applicable to defer examination of a party till examination of its witnesses, but not other co-Defendants. Learned trial Court failed to appreciate the same and passed the impugned order. Further, pendency of CMP No.389 of 2023 cannot be a ground to defer examination of Defendant No.1 when no interim order has been passed in the said CMP. These material aspects were lost sight of by learned trial Court. Hence, the impugned order is not sustainable and is liable to be set aside.

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4. Mr. Kanungo, learned Senior Advocate appearing for contesting Defendant No.1/Opposite Party No.1 vehemently objects to the above. It is his submission that previous family partition is challenged by the Plaintiff/Petitioner in the present suit. Records of the Income Tax Department would clearly indicate that the Plaintiff had already acted on the previous partition made in the family, which is under challenge. Thus, the relevant record from the Income Tax Department is necessary for proper adjudication of the suit. Admittedly, an application to call for relevant records from the Income Tax Department was filed by Defendant No.1, which was rejected and veracity of the said order is under consideration in CMP No.389 of 2023. He

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CMP No.976 of 2024

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Page 2 of 8

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Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CU TTACK Date: 17-Jan-2025 18:21:59

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also submits that no interim protection was given in the said CMP. He, however, submits that although provision under Order XVIII Rule 3-A CPC is not strictly applicable to the case in hand, but the principles of the said provision is applicable to the instant case. Plaintiff or other Defendants will not be prejudiced in any way if the examination of Defendant No.1 is deferred till examination of other Defendants. Thus, applying the principles under Order XVIII Rule 3-A CPC, learned trial Court passed the impugned order, which does not warrant any interference by this Court. Further, in the meantime Defendant No.2 has already filed her evidence in affidavit and the suit is posted to 18^th January, 2025 for examination of Defendant No.2.

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5. Heard learned counsel for the parties. Perused the materials on record.

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6. This Court, while issuing notice in the instant CMP, vide order dated 20^th September, 2024, as an interim measure, directed that the impugned order dated 1^st August, 2024 passed by learned 2^nd Additional Civil Judge (Senior Division), Bhubaneswar in CS No.70 of 2008 shall remain stayed till the next date. In spite of the same, learned trial Court did not proceeding with trial of the suit. When the matter listed on 6^th December, 2024, Mr. Bose, learned counsel for the Petitioner brought the said fact to the notice of this Court. Thus, this Court passed the following order on 6^th December, 2024.

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“1. This matter is taken up through hybrid mode.

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2. It is submitted by Mr. Bose, learned counsel for the Petitioner that although, vide order dated 20^th September, 2024 passed in I.A. No. 1038 of 2024, this Court only stayed operation of the order dated 1^st August, 2024 (Anncxurc-1) passed in C.S.No.70 of 2008, but learned trial Court is not proceeding with the trial although it is a year old case.

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CMP No.976 of 2024

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Page 3 of 8

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Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CU TTACK Date: 17-Jan-2025 18:21:59

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3. Be that as it may, learned trial Court shall pass a reasoned order as to why it is not proceeding with the trial although it is not stayed by this Court.

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4. Mr. Mehurulla, learned counsel for Opposite Party No.1 prays for an adjournment. 5. Put up this matter on 13th January, 2025 under the heading “Fresh Admission”.

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6. Interim order dated 20th September, 2024 passed in I.A.No.1038 of 2024 shall continue till the next date.”

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6.1 In spite of order dated 6^th December, 2024, learned trial Court did not proceed with the trial of the suit. Hence, on 13^th January, 2025, this Court passed the following order.

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“1. This matter is taken up through hybrid mode. 2. On 6th December, 2024, Mr. Bose, learned counsel for the Petitioners made a submission that although vide order dated 20^th September, 2024 passed in IA No.1038 of 2024, this Court only stayed operation of the order dated 1^st August, 2024 (Annexure-1) passed in CS No.70 of 2008, but learned trial Court is not proceeding with the trial although it is an year old case. Taking into consideration the submission, this Court directed that learned trial Court shall pass a reasoned order as to why it is not proceeding with the trial, although trial of the suit is not stayed by this Court.

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3. Mr. Bose, learned counsel for the Petitioners submits that the suit was posted to 21st December, 2024 on which date, learned counsel appearing for the Plaintiff therein filed the certified copy of the order dated 6^th December, 2024 along with a memo and requested learned trial Court to proceed with the trial or to pass a reasoned order as to why it is not proceeding with the trial. Although the matter was heard on that date, but, learned trial Court has neither proceeded with the trial nor passed any reasoned order as to why it is not proceeding with the trial as directed by this Court vide order dated 6th December, 2024.

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4. Hence, a report is called for from learned 2^nd Additional Civil Judge, (Senior Division), Bhubaneswar to apprise the Court about the matter.

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5. In the report, it shall be specifically stated as to whether learned trial Court is proceeding with the trial or not. In the event, learned trial Court is not proceeding with the trial, whether any reasoned order has been passed in that regard or not.

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6. Registry shall communicate this order to learned 2^nd Additional Civil Judge, (Senior Division), Bhubaneswar as well as learned District and Sessions

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CMP No.976 of 2024

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Page 4 of 8

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Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CU TTACK Date: 17-Jan-2025 18:21:59

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Judge, Khurda at Bhubaneswar forthwith through e-mail to submit the report by 17th January, 2025.

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7. Put up this matter on 17th January, 2025.

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8. Interim order dated 20th September, 2024 passed in IA No.1038 of 2024 shall continue till the next date.”

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6.2 Pursuant to order dated 13^th January, 2025, learned 2^nd Additional Civil Judge (Senior Division), Bhubaneswar submitted the following report;

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“IN THE COURT OF 2ND ADDITIONAL SENIOR CIVIL JUDGE, BHUBANESWAR

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Letter No. 20 /dated 16.01.2025

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From 2d Addl. Senior Civil Judge 1/c, Bhubaneswar To The Registrar (Judicial) Hon'ble High Court of Odisha Cuttack (Through the District & Sessions Judge, Khurda at Bhubaneswar)

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Sub: Submission of report as desired by the Hon'ble Court.

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Ref: Memo No.211 dated 15.01.2025 of the Office of the District Judge. Khurda at Bhubaneswar

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Respected Sir.

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With utmost respect, I humbly submit this report in compliance with the directions of the Hon'ble Court, as communicated through the District Office memo no. 211 dated 15.01.2025. in reference to the Hon'ble Court's letter no. 1131(2). The details are as follows:

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The Hon'ble Court, vide order dated 20 September 2024, was pleased to stay the operation of this Court's order dated 1" August 2024 passed in C.S. Case No. 70 of 2008. Consequently, the matter was adjourned, awaiting further instructions from the Hon'ble Court

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Subsequently, on 21 December 2024, the learned counsel for the plaintiff submitted a certified copy of the Hon'ble Court's order dated 6th December 2024, passed in CMP No. 976 of 2024. In compliance with the Hon'ble Court's directions, this Court proceeded with the trial on 21" December 2024, and the case has been posted to 18.01.2025 for examination of other witnesses of defendants, the copy of order is annexed herewith for kind consideration.

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1 most respectfully request your goodself to kindly place this report before the Hon'ble Court for its gracious consideration,

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CMP No.976 of 2024

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Page 5 of 8

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Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CU TTACK Date: 17-Jan-2025 18:21:59

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Thanking you. Yours faithfully, 2 Addl. Sr. Call Judge I/c Bhubaneswar Encl: Order dated 21.12.2024 passed in CS No 70 of 2008”

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Copy of the order dated 21^st December, 2024 was also annexed to the said report/letter of learned trial Court, which is as under:-

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“Order dated 21.12.2024

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Advocate for the plaintiff files a memo along with certified copy of order No.3 dtd. 06.12.2024 passed in CMP No.976 of 2024 by the Hon'ble High Court of Orissa, Cuttack. Perused the same. The order is as follows:

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"It is submitted by Mr. Bose learned counsel for the petitioner that although vide order dated 20 September, 2024 passed in L.A. No. 1038 of 2024, this Court only stayed operation of the order dated 1^st August, 2024(Annexure-1) passed in C.S. No. 70 of 2008, but learned trial court is not proceeding with the trial although it is a year old case.

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Be that as it may, learned trial court shall pass a reasoned order as to why it is not proceeding with the trial although it is not stayed by this court."

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Be it mentioned here that the Hon'ble Court in CMP No-976 of 2024 has directed that operation of order did 01.08.2024 passed by this court shall remain stayed till next date. The order did 01.08.2024 arises out of a petition filed by the defendant no-1 for allowing him a reasonable time for his examination after examination of other defendants and this court allowed the petition of defendant no-1 vide order did 01.08.2024 and after receipt of direction from the Hon'ble Court to stay the order dtd 01.08.2024, the case record was posted awaiting further direction from the Hon'ble Court In the meanwhile vide subsequent order dtd 06.12.2024, the Hon'ble High Court directed this court to proceed with the trial while the interim order for stay of order dtd 01.08.2024 of this court shall continue by the direction of the Hon'ble Court. Hence in obedience to the direction of the Hon'ble High Court vide order dtd 06.12.2024, the trial is resumed. Put up on 18.01.2025 for examination of other witnesses of defendants

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CMP No.976 of 2024

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Page 6 of 8

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Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CU TTACK Date: 17-Jan-2025 18:21:59

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This Court, however, does not appreciate the manner in which learned 2^nd Additional Civil Judge (Senior Division), Bhubaneswar proceeded with the matter. When the order deferring the examination of Defendant No.1 was stayed by this Court, vide order dated 20^th September, 2024, in all fairness, learned trial Court should have proceeded with examination of Defendant No.1 before other Defendants. Further, vide order dated 21^st December, 2024, learned trial Court proceeded to examine other witnesses ignoring the interim order dated 20^th September, 2024. However, this Court proceeds to adjudicate the CMP on merit.

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7. Order XVIII Rule 3-A CPC reads as under.

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“ 3-A- Party to appear before other witnesses; Where a party himself wishes to appear as a witness, he shall so appear before any other witness on his behalf has been examined, unless the Court for the reasons to be recorded, permits him to appear as his own witness at a later stage.”

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7.1 On a close reading of the provision under Order XVIII Rule 3-A CPC, it is clear that the Court has the discretion to defer examination of a party till other witness(es) on behalf of the said party is/are examined. Learned trial Court may defer examination of a party till examination of its witnesses not other co-Defendants. Thus, the provision under Order XVIII Rule 3-A CPC has no application to the instant case.

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7.2 Further, grounds stated in the petition under Annexure-6 that order rejecting an application to call for records from Income Tax Department is pending adjudication in CMP No.389 of 2023 cannot be a ground to defer the examination of

Defendant No.1.

CMP No.976 of 2024

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Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CU TTACK Date: 17-Jan-2025 18:21:59

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8. Thus, the impugned order under Annexure-1 is not sustainable and is accordingly set aside and the learned trial Court is directed to proceed with examination of Defendant No.1 forthwith keeping in mind that the suit is of the year 2008.

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9. At this stage, Mr. Kanungo, learned Senior Advocate appearing for Defendant No.1/Opposite Party No.1 submits that the matter is posted tomorrow, i.e., 18^th January, 2025 for examination of other Defendants and Defendant No.2 has already filed her evidence in affidavit. In that event, learned trial Court may defer the suit to 20^th January, 2025 for examination of Defendant No.1.

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10. The CMP is accordingly disposed of with the aforesaid observation and direction.

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(K.R. Mohapatra) Judge

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s.s.satapathy

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CMP No.976 of 2024

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Kanak Vardhan Singh Deo v. Ananga Udya Singh Deo

Case brief

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Kanak Vardhan Singh Deo v. Ananga Udya Singh Deo

Case brief

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What the court decided

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