Orissa High Court
Billash Bhoi And Others vs Mauzi Dei And Others on 31 August, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP NO. 969 OF 2019
Billash Bhoi and others .... Petitioners
Mr. Suvashish Pattanaik,
Advocate
-versus-
Mauzi Dei and others .... Opp. Parties
Mr. Amit Prasad Bose, Advocate
(For Opposite Party No.1)
Mr. Shib Shankar Mohanty, Advocate
(For Opposite Party Nos.2(a) to 2(d), 3 and 5)
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 31.08.2021
07. 1. This matter is taken up through hybrid mode.
2. Heard Mr. Pattanaik, learned counsel for the Petitioners,
Mr. Bose, learned counsel for the Opposite Party No.1 and Mr.
Mohanty, learned counsel for the Opposite Party Nos.2(a) to 2(d),
3 and 5.
3. This CMP has been filed assailing the order dated 9th
August, 2019 (Annexure-5) passed by learned 2nd Additional
District Judge, Bhubaneswar in RFA No. 102 of 2016, whereby
he allowed an application filed by the Opposite Party No.1
(Appellant therein) under Order XLI Rule 27 C.P.C.
4. It is submitted by Mr. Pattanaik, learned counsel for the
Petitioners that assailing the judgment and decree dated 20th
September, 2016 (Annexure-1) passed in C.S. No. 42/497 of
2012/2003, the Opposite Party No.1 filed RFA No. 102 of 2016,
which is pending for consideration before learned 2nd Additional
District Judge, Bhubaneswar. Just before commencement of
// 2 //
hearing of the appeal, the Opposite Party No.1 filed a petition
under Order XLI Rule 27 C.P.C. to exhibit an order passed under
Section 22 of the OLR Act in order to establish that after
obtaining due permission from the competent authority, she has
purchased the property in question from the person belonging to
S.T. community. Learned Additional District Judge taking into
consideration the pleadings of the parties before the trial court as
well as grounds raised in appeal by the respective parties felt it
proper to allow the petition filed under Order XLI Rule 27 C.P.C.
and mark the order under Section 22 of the OLR Act passed in
Revenue Misc. Case No. 402 of 1998 as an exhibit for
consideration of the appeal. He further submits that the order
sought to be admitted as an additional evidence is obtained under
the provisions of R.T.I. Act. Hence, the same is not admissible in
evidence. This material aspect was not taken into consideration by
learned appellate court. He further submits that an application
under XLI Rule 27 C.P.C. can only be considered at the time of
hearing of the appeal. Thus, consideration of such an application
at any stage before commencement of hearing of the appeal is not
proper and the impugned order is, therefore, liable to be set aside.
5. Mr. Bose, learned counsel for the contesting Opposite
Party No.1, on the other hand, submits that there is no infirmity in
the impugned order. It is specifically pleaded by Opposite Party
No.1 that she had purchased the property by obtaining due
permission from the competent authority under Section 22 of the
OLR Act, but the order could not be produced before the trial
court. After obtaining the same, during pendency of the appeal,
the Opposite Party No.1 filed a petition under Order XLI Rule 27
C.P.C. to accept the same as additional evidence. As rightly
// 3 //
observed by learned appellate court in the impugned order, the
order passed under Section 22 of the OLR Act is essential to reach
at a just conclusion and to pass an effective judgment in the
appeal. Accordingly, he prays for dismissal of the CMP.
6. Taking into consideration the submissions of learned
counsel for the parties and on perusal of the record, it is apparent
that the Opposite Party No.1 had taken a plea before learned trial
court to the effect that she had purchased the property in question
after obtaining due permission from the competent authority under
Section 22 of the OLR Act. During pendency of the appeal, the
Opposite Party No.l could obtain the said order and filed an
application under Order XLI Rule 27 C.P.C. to accept the same as
an additional evidence. As observed by learned appellate court, I
find that the order passed under Section 22 of the OLR Act is
essential for proper adjudication of the appeal.
7. The plea of Mr. Pattnaik, learned counsel for the Petitioner
with regard to stage of consideration of the petition under Order
XLI Rule 27 C.P.C., it can only be said that the Opposite Party
No.1 had filed the said petition when the appeal was posted for
hearing. Thus, there is no illegality in considering the application
at that stage.
8. However, a plea is raised by Mr. Pattanaik, learned
counsel for the Petitioners that since the said order was obtained
under the provisions of the R.T.I. Act, it could not have been
admitted as evidence and marked as exhibit. Mere marking of a
document as exhibit does not waive the formal proof of the said
document. Hence, it is open for the Petitioners to raise such a
plea at appropriate stage of the proceeding.
// 4 //
9. In that view of the matter, I find no infirmity in the
impugned order. Accordingly, this CMP being devoid of any
merit stands dismissed.
10. The interim order dated 17th September, 2019 passed in
I.A. No. 1024 of 2019 stands vacated.
Urgent certified copy of this order be granted on proper
application.
bks (K.R. Mohapatra)
Judge
