Mitra Ranjan Panda vs Manoranjan Devi And Others
2021 Latest Caselaw 12667 Ori

                         IN THE HIGH COURT OF ORISSA AT CUTTACK

                                         CMP No.682 OF 2021
                       Mitra Ranjan Panda                     ....       Petitioner
                                             Mr. Samir Kumar Mishra, Advocate
                                               -versus-
                       Manoranjan Devi and others             .... Opp. Parties
                                                        Mr. P.K. Nayak, Advocate
                                              (For Caveator/Opposite Party No.1)

                            CORAM:
                            JUSTICE K.R. MOHAPATRA
                                                 ORDER

      Order No.                                 09.12.2021
02.          1.           This matter is taken up through hybrid mode.

2. Mr. Mishra, learned counsel for the Petitioner submits that name of Champa Divya-Opposite Party No.5 may be deleted from the cause title of the CMP.

3. Accepting the oral prayer made by Mr. Mishra, learned counsel for the Petitioner, the name of Champa Divya-Opposite Party No.5 is deleted from the cause title of the CMP at the risk of the Petitioner.

4. The Petitioner in this CMP seeks to assail the order dated 3rd November, 2021 passed by learned Civil Judge (Senior Division), Bhubaneswar in C.S. No.1428 of 2011, whereby his prayer to delete certain properties from the schedule of the plaint was rejected.

5. Mr. Mishra, learned counsel for the Petitioner submits that Opposite Party No.3 filed Test Case No.27 of 2011, which was subsequently registered as C.S. No.1281 of 2018 (for short 'Test Case') and is pending for adjudication before learned Civil Judge (Senior Division), Bhubaneswar. The Opposite

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Party No.1 has also filed C.S. No.1428 of 2011 for declaration of right, title and interest, permanent injunction and other consequential and ancillary relief and he has made an alternative prayer of partition of the suit properties including the properties involved in the Test Case, which is also pending for adjudication before the same court. Earlier the Petitioner, who has been arrayed as Defendant No.1 filed an application under Section 10 of C.P.C. to stay further proceeding of C.S. No.1428 of 2011 during pendency of Test Case. Learned Civil Judge taking into consideration the averments made in the petition in Test Case deleted the properties from the schedule of the plaint in C.S. No.1428 of 2011 and proceeded for adjudication of the suit. At the time of filing of show cause in the Test Case, the Petitioner could come to know that some other properties in the schedule of the plaint are also covered under the said Will, which is the subject matter of consideration in the said Test Case. Learned trial court refused the payer holding that by filing such petition, the present Petitioner tried to impress upon the Court that without comparing with the plaint in both the cases, the properties were deleted. It is his submission that the Petitioner wants deletion of the properties in the present application as they are also included in the Will. Thus, there is every likelihood of conflicting of decisions. In that view of the matter, learned trial court ought to have considered the application for deletion of the properties mentioned in the said petition.

6. Learned counsel for the Opposite Party No.1 vehemently objected to the same. It is his submission that the Petitioner by filing such application is only trying to protract the litigation. If

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ultimately it is found the properties that the Petitioner now wants to delete are part of the Will, then decision of learned Civil Judge shall be subject to the judgment to be passed in the Test Case, i.e. C.S. No.1281 of 2018. Hence, learned trial court has committed no error in passing the impugned order.

7. Taking into consideration the submissions made by learned counsel for the parties and more particularly the fact that learned trial court has proceeded substantially in C.S. No.1428 of 2011 which is at the stage of argument, I am not inclined to entertain the CMP.

8. However, decision of learned trial court with regard to the property that the Petitioner wants to delete by filing the instant application, shall be subject to the result of the Test Case, i.e. C.S. No. 1281 of 2018.

9. With the aforesaid observation, this CMP is disposed of.

Urgent certified copy of this order be granted on proper application.

(K.R.Mohapatra) Judge jm