CMP/720/2020
2021 Latest Caselaw 1477 Ori

                         C.M.P. No.720 of 2020




5.   5.02.2021         This    matter    is    taken    up      through     Video
                 Conferencing.
                       Heard Mr. S.S. Dash, learned Senior Advocate
                 appearing on behalf of the petitioners, Mr. A.K. Parija,
                 learned Advocate General being assisted by Mr. A.R.
                 Dash, learned Additional Government Advocate for the
                 Opposite Party Nos.1 to 3 and Mr. S. Palit, learned
                 counsel for the Opposite Party No.5.
                       This C.M.P. involves a challenge to the impugned
                 judgment     passed    by    the   learned     District   Judge,
                 Bhubaneswar involving F.A.O No.34 of 2017 disposed of
                 on 23.12.2020 in reversal of the order of the Trial Court
                 involving disposal of an application U/o.39 Rules 1 & 2
                 read with Section 151 of C.P.C dated 13.04.2017.
                       Short background involved in this case is that on
                 the basis of grant of "Hat Pata" by the ex-intermediary in
                 favour of the grandfather of the present petitioners on
                 27th January, 1941 and further on the vesting of the
                 estate, the ex-intermediary submitted "ek-padia" to the
                 State showing the grandfather of the petitioners as tenant
                 and during settlement operation at different stages there
                 is recording to the extent that the tenant was in physical
                 possession, consequently a final Record of Rights is
                 published,    but     however,     admitting     that     though
                 Settlement Revision bearing No.1203 of 1989 was allowed
                 by the Commissioner Consolidation and Settlement, it
                 was directed that tenant name should be deleted from the
                 remark column and to be put in tenant's column, but
                 however, subsequently entertaining a review petition the
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       Commissioner Consolidation and Settlement allowing the
       review   opened    the   revision   for   fresh   adjudication.
       Admittedly the same is pending as of now. Thus, there
       remains, there is still litigation pending on ascertainment
       of right as well as possession of plaintiff involving the
       disputed land before the competent authority. It is
       pleaded that for the attempt of the Defendant Nos.1 to 5
       to dispossess the father of the petitioners, who has died
       in the meantime and having a cause of action a suit was
       brought on the file of learned Civil Judge (Sr. Divn.),
       Bhubaneswar       vide   T.S.   No.141    of   2000.   For   the
       enhancement of pecuniary jurisdiction of the learned Civil
       Judge (Jr. Divn.), Bhubaneswar, the T.S. No.141 of 2000
       was transferred and renumbered as C.S. No.753 of 2001.
       During pendency of such suit an application U/o.39
       Rules 1 & 2 of C.P.C. was filed for restraining the
       Defendant Nos.1 to 3 from interfering in the peaceful
       possession of the plaintiff. On 13.09.2006 there was an
Ayas   order of interim status quo over the suit land. This order
       being challenged by the State on the file of the learned
       District Judge and subsequently transferred to the
       learned Additional District Judge, Bhubaneswar and was
       renumbered as F.A.O No.30/72 of 2007/2006, the lower
       Appellate Court set aside the order of status quo and
       remitted the matter for reconsideration. Being aggrieved
       by the order of the lower Appellate Court, the Writ
       Petition bearing No.19093 of 2010 was preferred and this
       Court by its order dated 20.09.2011 set aside the order of
       the lower Appellate Court and remitted the matter to the
       lower Appellate Court for re-disposal of the Appeal. It is,
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at this stage of the matter, an application for impletion of
the Opposite Party No.5, i.e., Defendant No.6 was filed
and the same was allowed. The order allowing the
impletion was, however, challenged through the Writ
Petition No.16953 of 2011 and the same was dismissed
on 21.09.2012. Thereafter, a Writ Appeal No.345 of 2012
being filed before the Division Bench; was also dismissed.
The plaintiff having died in FAO No.30/72 of 2007/2006
an application for substitution was filed and allowed. As a
consequence of such order, the present petitioners came
to the picture. Thereafter, the F.A.O No.30/72 of
2007/2006 being allowed by the lower Appellate Court
the petitioners preferred C.M.P. No.1036 of 2016. The
C.M.P was disposed of without entering into merits
involving the dispute, but however, with an intention to
see early disposal of the suit mentioned hereinabove,
thereby while directing the parties to maintain status
quo, a direction was also issued to expedite the trial. It is,
after this development an application U/o.7 Rule 10 of
C.P.C was filed for return of the plaint and presentation
before the learned Civil Judge (Sr. Divn.), Bhubaneswar.
For the valuation of the suit getting increased and on
being permitted the plaint was presented before the
learned   Civil   Judge     (Sr.   Divn.)   and   accordingly,
renumbered as C.S. No.324 of 2017. While the matter
stood thus; apprehending an attempt of dispossession by
the Defendant nos.1 to 5 in spite of there being an order
of status quo, it is claimed that as a matter of abandon
caution Petitioners filed I.A. No.1 of 2017 involving
opposite party nos.1 to 4 only. This Court makes it clear
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that there is no injunction even sought for against the
Opposite Party No.5. Learned Civil Judge (Sr. Divn.)
allowed   the      I.A.   No.1   of   2017    vide    Annexure-6.
Consequently, the F.A.O No.34 of 2017 was allowed by
the learned District Judge resulting present C.M.P.
      Mr. S.S. Dash, learned Sr. Advocate appearing on
behalf of the petitioners though raised several grounds in
challenging the impugned order, but however, ultimately
stock to the grounds such as, for the order of status quo
already passed by this Court in disposal of the C.M.P.
No.1036 of 2016 there was no wrong in the order of the
Trial Court requiring to be interfered with by the lower
Appellate Court. Mr. Dash, learned Sr. Advocate further
also contended that for the clear finding and observation
of the Trial Court, there was no reason otherwise
available to the lower Appellate Authority to interfere in
the same. Further, for the dispute being pending for over
twenty    years,    no    harm    would      have    been   to   the
respondents, in the event the suit is completed in certain

time frame and there is maintenance of the order of status quo involving the disputed property in question.

Apart from the grounds raised and indicated hereinabove, Mr. S.S. Dash, learned Senior Advocate appearing on behalf of the petitioners taking this Court to the list of documents filed in lower Appellate Court contended that there is surprise consideration of the materials at the instance of the respondent. To this submission of Mr. S.S. Dash, learned Senior Advocate appearing on behalf of the petitioners Mr. S. Palit, learned counsel for the Opposite Party No.5 along with Mr. A.R.

Dash, learned Additional Government Advocate drawing the attention of this Court to the paragraph no.10 of the Written Statement submitted that the allegation of consideration of the plea surprisingly is that the land involved was bushy and not remaining useful at the relevant point of time and therefore, the same could not have been in possession of the plaintiff and has been in disputed category.

In their opposition, learned counsels appearing for the respective Opposite Parties in a common argument submitted that the suit initiated originally in the year 2000 after so many is transferred and is still pending before the learned Civil Judge (Sr. Divn.), Bhubaneswar at the stage of acceptance of written statement only. Despite several directions to expediting hearing of the suit even including direction for having day to day trial to see disposal of the suit, yet the suit is at the stage of acceptance of written statement. It is also contended that petitioners' claim of possession over the disputed property is yet to ascertain, as for his own submission the Settlement Revision is still pending for adjudication. While alleging that Trial Court did not apply its judicious mind in finding the ingredients involving injunction in favour of plaintiff, it is claimed that the District Judge on close scrutiny of materials available on record has found that the contesting respondents are able to satisfy existence of all the three ingredients in favour of the Opposite Parties. Challenge is also opposed on the premises that for the site decided to have a State of Art Cancer Institute, there involves large public interest,

besides delay in putting the construction will land in extra financial implication. In the premises that the State is standing guarantee to provide matching extent of land in the event of their losing the case, it is contended that there is no serious prejudice to the petitioners in the event the contesting opposite parties are permitted to go ahead with project. A request is thus made not to entertain the C.M.P.

On rival contentions of the parties this Court finds, the first suit bearing T.S. No.141 of 2000 being transferred to the Court of Civil Judge (Jr. Divn.), Bhubaneswar was renumbered as C.S. No.753 of 2001. It appears, on allowing of the application under Order 7 of the C.P.C the plaintiff has been permitted to withdraw the suit in order to file it in appropriate format/form for valuation aspect involved therein and as a consequence suit was filed again on the file of learned Civil Judge (Sr. Divn.), Bhubaneswar bearing C.S. No.324 of 2017. Both the proceedings have seen number of interlocutory applications and there has been several time stay of the further proceeding of the suit, resulting there is delay in the disposal of the suit pending over two decades. Further, looking to the several round of litigations also involving the application U/o.39 rules 1 & 2 of C.P.C, this Court finds, the parties instead of attempting to closure of the suit by entering into trial, are allthrough busy in contesting the interlocutory applications. In the process there has been loss of twenty years of time. For the pleadings of the respective parties and serious contest involving the plaint in the suit, this Court observes, it

would be better, if the suit is tried and disposed of at earliest.

On the basis of the submission of Mr. S.S. Dash, learned Senior Advocate as well as Mr. A.R. Dash, learned Additional Government Advocate for the Opposite Party Nos.1 to 3 and Mr. S. Palit, learned counsel for the Opposite Party No.5, this Court while examining the impugned judgment takes into account the observation of the Trial Court and findings therein and on scrutiny of judgment of the lower Appellate Court impugned herein, finds, the lower Appellate Court after taking into consideration the very same materials and pleadings has come to hold that the petitioners herein does not have the prima facie case and do not satisfy the other ingredients of the injunction. It is, on the other hand the learned District Judge has not only found prima facie case leans in favour of the appellants therein, but for the delay disposal of the suit the learned District Judge has also observed, in the event of further maintenance of status quo there would be inconvenience and irreparable loss to be sustained by the respondents, who are intending to go ahead with the State of Art Project, keeping in view pendency of the suit, learned District Judge has also kept the undertaking of the State through the learned Advocate General also appeared in the appeal, where the State has given guarantee to protect the interest of the plaintiff by way of allotting a matching land, in the event the plaintiff succeeds ultimately. This Court, here observes, for the nature of the suit and for pendency of the suit for over two decades even pending at the stage of

acceptance of the written statement and having scope of appeal and final proceeding through the Hon'ble Apex Court, it is not known when the suit will ultimately be finalized. In the circumstance this Court is of the opinion that learned District Judge has found right path in disposal of the appeal requiring no interference of this Court. For the reasoning of the lower Appellate Court involving the impugned order, this Court also does not find any illegality in the same.

Taking into account the submissions and the response of the contesting parties, this Court entering into both the orders of the Trial Court as well as the lower Appellate Court involving the application under Order 39 rules 1 & 2 finds, both the lower Courts have committed gross error in attending to discuss on materials produced by both sides at length almost entering into admissibility of such documents, which is not the role of the Trial Court or lower Appellate Court while considering the application under Order 39 rules 1 & 2 of C.P.C. This Court takes into account the specific undertaking at the instance of the contesting opposite party at paragraph no.13 of the page 190 of the brief that for the involvement of a heavy project to come to the great rescue of the State in health side, such project should not be stalled and thus there is no prejudice to the plaintiff otherwise.

Considering the judgment impugned herein, the submissions made, the allegations of the respective parties and taking into account the loss of two decades of time in the meantime for pending adjudication of the right of the parties in the suit, this Court feels it

appropriate to maintain the order of the lower Appellate Authority, but however, subject to the claim of no equity in the light of undertaking given by the contesting Opposite Parties in paragraph no.13 at page 190 of the brief. However, keeping in view the discussions of both the Trial Court as well as the lower Appellate Court and taking into consideration the submission of Mr. S.S. Dash, learned Senior Advocate for the petitioners that some of the observations therein may affect the decision in the trial process, this Court while observing that the observations of both the Trial Court as well as the lower Appellate Court would be confined for the purpose of consideration of the interlocutory applications only, also directs, the same have nothing to do with the decision to be taken in the trial process. This Court reiterates that the observations during the trial either in the interim stage or in appellate stage shall have no guidance to the Trial Court.

It is, here, taking into consideration the bindingness of the order dated 11.08.2016 of this Court in disposal of the C.M.P. 1036 of 2016, a claim at the instance of the petitioners, this Court finds, for the moving of the parties during pendency of C.S. No.753 of 2001 to this Court in earlier occasion, this Court in disposal of the C.M.P bearing No.1036 of 2016 made the following direction in the conclusion part therein:

"In view of the same, this Court feels that ends of justice would be better served, if a direction is issued to the learned trial court to dispose of the suit by end of November, 2016. For the said purpose, the parties shall appear before the court below on 9th September, 2016, on which

day, the learned trial court shall fix a date for hearing of the suit. The trial shall be conducted on day today basis. In the event of non- cooperation of any of the parties, the learned trial court shall proceed with the case in accordance with law. The interim order passed by the learned trial court directing the parties to maintain status quo shall continue till disposal of the suit. The learned trial court shall decide the suit without being influenced by any observation made in the order of status quo dated 13.09.2006 passed by it.

The petition is disposed of.

In view of the order passed above, F.A.O.30/72 of 2007/2005 is also treated to have been disposed of.

The Registry is directed to intimate the order to the learned District Judge, Bhubaneswar."

This order appears to have been passed without examining the illegality in the impugned orders therein, but however, keeping in view the early disposal of the suit only in the interest of parties involved therein. Though there was a direction for expediting trial but for the reason best known to the parties, the trial even could not be completed for five years. It is still in the stage of acceptance of the written statement only after the suit is presented in new Court vide C.S. No.324 of 2017. Now examining the submissions of the counsel to the bindingness of the order of this Court 11.08.2016, this Court taking into account a judgment of the Hon'ble Apex Court relied on by both the parties in the case of EXL Careers vrs. Frankfinn Aviation Services (P) Ltd., (2020) 12 SCC 667 finds in paragraph no.15 therein, the Hon'ble Apex Court held as follows:

"15.Modern Construction [ONGC v. Modern

Construction & Co., (2014) 1 SCC 648 : (2014) 1 SCC (Civ) 617] , referred to the consistent position in law by reference to Ramdutt Ramkissen Dass v. E.D. Sassoon & Co. [Ramdutt Ramkissen Dass v. E.D. Sassoon & Co., 1929 SCC OnLine PC 3 : (1928-29) 56 IA 128 : AIR 1929 PC 103] , Amar Chand Inani v. Union of India [Amar Chand Inani v. Union of India, (1973) 1 SCC 115], Hanamanthappa v. Chandrashekharappa [Hanamant happa v. Chandrashekharappa, (1997) 9 SCC 688] , Harshad Chimanlal Modi (2) [Harshad Chimanlal Modi (2) v. DLF Universal Ltd., (2006) 1 SCC 364] and after also noticing Joginder Tuli [Joginder Tuli v. S.L. Bhatia, (1997) 1 SCC 502] , arrived at the conclusion as follows : (Modern Construction case [ONGC v. Modern Construction & Co., (2014) 1 SCC 648 : (2014) 1 SCC (Civ) 617] , SCC p. 654, para 17) "17. Thus, in view of the above, the law on the issue can be summarised to the effect that if the court where the suit is instituted, is of the view that it has no jurisdiction, the plaint is to be returned in view of the provisions of Order 7 Rule 10 CPC and the plaintiff can present it before the court having competent jurisdiction. In such a factual matrix, the plaintiff is entitled to exclude the period during which he prosecuted the case before the court having no jurisdiction in view of the provisions of Section 14 of the Limitation Act, and may also seek adjustment of court fee paid in that court. However, after presentation before the court of competent jurisdiction, the plaint is to be considered as a fresh plaint and the trial is to be conducted de novo even if it stood concluded before the court having no competence to try the same."

Joginder Tuli [Joginder Tuli v. S.L. Bhatia, (1997) 1 SCC 502] was also noticed in Harshad Chimanlal Modi (2) [Harshad Chimanlal Modi (2) v. DLF Universal Ltd., (2006) 1 SCC 364] but distinguished on its own facts."

The above proposition of law settled through the Hon'ble Apex Court makes it clear that once a plaint is returned and presented in higher forum, there is always a de novo trial, making it further clear that previous orders in an incompetent proceeding has no value. It is, for the no disposal of C.M.P. and for having no finding on the validity involving the impugned orders therein, this Court without entering into merit in disposal of the C.M.P. while

targeting the suit, had directed the parties to maintain status quo in respect of the disputed land in question arising out of T.S. No.753 of 2001. Above C.M.P. was disposed of on 11.08.2016. Even though four years and some months have already passed in the meantime, the trial involving the suit is yet to be commenced. This Court even going through the order of the Trial Court vide Annexure-6 involved herein, finds, while disposing the I.A. No.1 of 2017 the Court had given a direction for conducting the trial involving the suit on day to day basis. In spite of such direction of the Trial Court this Court finds, there is no progress in the trial and it is strange to observe here that, parties instead of giving interest for trial; are busy in bringing applications after applications only just to obstruct the trial. This Court here also observes, the Trial Court is becoming a tool to the hands of the parties in such attempts. This Court here finds support through the submission of Mr. A.K. Parija, learned Advocate General and Mr. S. Palit, learned counsel for the Opposite Party No.5.

This Court here also finds prima facie support of two judgments of Hon'ble the Apex Court to the case of contesting Opposite Parties. In the case of Sri S. Sita Maharani and Ors. Vrs. Chhadi Mahto and others reported in AIR 1955 SC 328 where the Hon'ble Apex Court observed that no right can accrue to a person on the basis of "Hata Pata" for its being an unregistered one. Similarly, in another case in between the State of Orissa and Ors. Vrs. Harapriya Bisoi reported in AIR 2009 SC 2991 the Hon'ble Apex Court came to hold that mere

execution of lease by intermediary in favour of a person would not confer a status of Rayat, nor would protect possession of such lesee. The Hon'ble Apex Court here also held that in this case also the said "hata patta" are mere piece of papers created with oblique motive. Besides bare perusal of current Record of Rights also does not indicate any role of petitioners over disputed land. Besides in a vesting proceeding there is already direction to record the suit land in the name of Government in G.A. Department and petitioners are yet to overcome such order.

It is, at this stage of the matter, Mr. S.S. Dash, learned Senior Advocate for the petitioners requests this Court for at least giving a direction to the Trial Court for timely disposal of the suit. In the process and considering that there should be at least a direction to the Trial Court to expedite the disposal of the suit, this Court keeping in view the pendency of the suit for over two decades, directs the Trial Court to take up the suit and complete the trial by completing the entire exercise within a period of three months from the date of communication of a copy of this order. All the parties undertake through their respective counsel that they will not ask for any unnecessary adjournment involving the suit and co- operate in timely disposal of the suit. Both the parties also undertake to adduce their evidence physically, but however, they have option to make their submission through video conferencing mode or physical. This Court here likes to observe that the finding and observation of this Court made hereinabove; are in the process of

considering decision involved herein and will have no bearing in the ultimate adjudication of the suit.

In the circumstance, this Court finds no ground to entertain the C.M.P, which is hereby dismissed, but however, with the direction for timely disposal of the suit.

As restrictions due to COVID-19 situation are continuing, party(s) may utilize the soft copy of this order available in the High Court's website or print out thereof at par with certified copies in the manner prescribed, vide Court's Notice No.4587, dated 25.03.2020.

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(Biswanath Rath, J.)