Shyamlata Agrawal Vs Raj Kumar Saraff

has been filed by the petitioners against the Opposite Parties praying for setting aside the impugned order dated 26.12.2023 passed in C.S. No.01 of 2018 by the learned District Judge, Nuapada.

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The petitioners and the Opposite Parties in this revision are the defendants and plaintiffs respectively in the

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suit vide C.S. No.01 of 2018 under Section 92 of the C.P.C., 1908 pending in the court of learned District Judge, Nuapada.

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The factual backgrounds of this revision, which prompted the petitioners(defendants in the suit vide C.S. No.01 of 2018) for filing of the same is that, the Opposite Parties in this revision being the plaintiffs filed the suit vide C.S. No.01 of 2018 under Section 92 of the C.P.C., 1908 in the court of the learned District Judge, Nuapada against the defendants (petitioners in this revision) along with CMA No.3 of 2017 praying for granting leave to the plaintiffs for the institution of that suit under Section 92 of the C.P.C., 1908 against the defendants.

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After hearing from both the sides in CMA No.3 of 2017, the learned District Judge, Nuapada allowed that CMA No.3 of 2017 on dated 16.04.2018 under Section 92 of the C.P.C., 1908 of the plaintiffs granting the plaintiffs leave to institute the suit vide C.S. No.01 of 2018 under Section 92 of the C.P.C., 1908 against the defendants.

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On the basis of the said order passed on dated 16.04.2018 in CMA No.3 of 2017, the suit of the plaintiffs vide C.S. No.01 of 2018 was instituted against the defendants under Section 92 of the C.P.C., 1908.

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On being dissatisfied with the said leave granted to the plaintiffs on dated 16.04.2018 under Section 92 of the C.P.C., 1908 by the leaned District Judge, Nuapada in CMA No.3 of 2017, the defendants challenged that order dated 16.04.2018 filing CMP No.839 of 2018 in the High Court of Orissa against the plaintiffs.

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After hearing from both the sides, that CMP No.839 of 2018 filed by the defendants in C.S. No.01 of 2018 was dismissed on dated 17.02.2022 by the High Court confirming the leave for institution of the suit vide C.S. No.01 of 2018 granted on dated 16.04.2018 under Section 92 of the C.P.C., 1908 by the learned District Judge, Nuapada in favour of the plaintiffs assigning the reasons that,

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“there is no difficulty either in maintaining the application under Section 92 of the C.P.C. or even in allowing such application. The High Court finds that, there is no infirmity of the impugned

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order. Consequently, CMP filed by the defendants is dismissed.”

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After dismissal of CMP No.839 of 2018 of the defendants on contest in the High Court on dated 17.02.2022, the defendants again approached learned District Judge, Nuapada by filing a petition on dated 03.01.2023 under Section 151 of the C.P.C., 1908 in the suit vide C.S. No.01 of 2018 praying for revocation of the leave granted on dated 16.04.2018 by the learned District Judge, Nuapada in favour of the plaintiffs under Section 92 of the C.P.C., 1908.

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After hearing from both the sides, the learned District Judge, Nuapada rejected to the petition under Section 151 of the C.P.C., 1908 dated 03.01.2023 of the defendants as per order dated 26.12.2023.

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On being aggrieved with the said order dated 26.12.2023 passed by the learned District Judge, Nuapada in C.S. No.01 of 2018 against the defendants, the defendants challenged the same by filing this revision being the petitioners against the plaintiffs arraying the plaintiffs as Opposite Parties.

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I have already heard from the learned counsels of both the sides.

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During the course of hearing, the learned counsel for the petitioners(defendants) relied upon the following

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decision of the Apex Court :-

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(2008) SCC OnLine S.C.-399 : Vidyodaya Trust vrs. Mohan Prasad R and others and (1991) 1 SCC-48 and R.M. Narayana Chettiar and another vrs. N. Lakshmanan Chettiar and others

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On the contrary, in support of the impugned order dated 26.12.2023 passed by the learned District Judge, Nuapada, the learned counsel for the Opposite Parties(plaintiffs) relied upon the following decision of the Apex Court and the final order dated 17.12.2022 passed on contest against the defendants(petitioners in this revision) by the High Court in CMP No.839 of 2018 :-

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2023 LiveLaw (SC)-266 : Prem Kishore and others vrs. Brahm Pakash and others .

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It has been clarified by the Apex Court in the decision

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relied by the petitioners in a case between R.M. Narayana

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Chettiar and another vrs. N. Lakshmanan Chettiar and

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others : reported in (1991) 1 SCC-48(Para-17) that,

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“As a rule of caution, court should normally give notice to the defendants before granting leave under Section 92 of the C.P.C to institute a suit, but the court is not bound to do so. If a suit is instituted on the basis of such leave, granted without notice to the defendants, the suit would not thereby be rendered bad in law or nonmaintainable. The grant of leave cannot be as or even regarded defeating seriously prejudicing any right of the proposed defendants, because it is always open to them to file an application for revocation of the leave, which can be considered on merits according to law.”

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The above propositions of law enunciated by the Apex

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Court in Para-17 of the above decision reported in (1991) 1

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SCC-48 clearly clarifies that,

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“when a suit is instituted under Section 92 of the C.P.C., 1908 on the basis of granting leave without notice to the defendants, in that situation, the defendants shall have the right to challenge the said granting of leave by filing an application for revocation and the application for revocation of the leave can be considered on merits in accordance with law.”

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Here, in this matter at hand, when leave under Section 92 of the C.P.C., 1908 for the institution of the suit vide C.S. No.01 of 2018 was granted in favour of the plaintiffs by

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the learned District Judge, Nuapada as per order dated 16.04.2018 in CMA No.3 of 2017 after hearing from both

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the sides including the defendants, then at this juncture, the defendants are not entitled to file application before the learned District Judge, Nuapada after dismissal of their CMP No.839 of 2018 on contest before the High Court refusing their prayer for setting aside the grant of the leave dated 16.04.2018 in CMA No.3 of 2017 by the learned District Judge, Nuapada, only for the reasons that, the impugned order concerning the granting of leave under Section 92 of the C.P.C. passed on dated 16.04.2018 in CMA No.3 of 2017 by the learned District Judge, Nuapada has already been reached in its finality between the parties due to the confirmation of that order dated 16.04.2018 on contest before High Court between the parties in CMP No.839 of 2018.

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On this aspect, the propositions of law has already been clarified in the ratio of the following decision :-

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(i) In a case between V. Rajkumar(Died) By L.Rs. vrs. M/s. R.V. Gurusamy Naidu Educational Trust, Karuchikottai & others : reported in 2018(Suppl.) Civil Court Cases-197 (Madras) (Para-11)—Suit under Section 92 of the C.P.C.— If leave was granted without hearing the defendant, he is entitled to file an application to revoke the leave granted to the plaintiff.

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In view of the principles of law enunciated in the ratio of the above decision, the petition dated 03.01.2023 under Section 151 of the C.P.C. filed by the petitioners(defendants) before the learned District Judge, Nuapada for revocation of the leave under Section 92 of the C.P.C., 1908 granted on dated 16.04.2018 in CMA No.3 of 2017 by the learned District Judge, Nuapada was not entertainable under law. Because, the defendants (petitioners in this revision) are estopped (precluded) under law to agitate the same matter again before the learned District Judge, Nuapada after being defeated on contest from the High Court in CMP No.839 of 2018.

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For which, the order of rejection to the petition dated 03.01.2023 under Section 151 of the C.P.C. of the petitioners(defendants) on dated 26.12.2023 in C.S. No.01 of 2018 by the learned District Judge, Nuapada cannot be held erroneous under law.

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Therefore, there is no justification under law for making interference with the impugned order dated 26.12.2023 passed in C.S. No.01 of 2018 by the learned

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District Judge, Nuapada, through this revision filed by the petitioners(defendants).

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As such, there is no merit in this revision filed by the petitioners(defendants). The same must fail.

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In result, this revision filed by the

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petitioners(defendants) is dismissed on contest.

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The learned District Judge, Nuapada is directed to

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dispose of the suit vide C.S. No.01 of 2018 pending before him as expeditiously as possible within a period of nine months from the date of communication of this judgment.

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The parties of this revision are directed to appear in the court of learned District Judge, Nuapada in C.S. No.01 of 2018 on dated 12.08.2025 for the purpose of receiving the directions of the learned District Judge, Nuapada as to further proceedings of the suit vide C.S. No.01 of 2018.

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Signature Not Verified ( A.C. Behera ) Digitally Signed Signed by: JAGABANDHU BEHERA Judge Designation: Personal Assistant Reason: Authentication Orissa High Court, Cuttack Location: OHC, CUTTACK The 25^th of Jul y, 2025/ Jagabandhu, P.A. Date: 25-Jul-2025 15:47:40

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Shyamlata Agrawal v. Raj Kumar Saraff

Case brief

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Shyamlata Agrawal v. Raj Kumar Saraff

Case brief

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