Orissa High Court
Kalakara @ Kalakar Naik & Anr vs Ashamitra Patel & Ors on 11 February, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP NO.94 OF 2022
Kalakara @ Kalakar Naik & anr. .... Petitioners
Mr.S.P.Mohanty, Adv.
-versus-
Ashamitra Patel & ors. .... Opposite Party(s)
none
CORAM:
JUSTICE BISWANATH RATH
ORDER
Order 11.2.2022
No.
01. 1. Heard Mr.S.P.Mohanty, learned counsel for the Petitioner
involving rejection of a Plaint on the ground of entertainability by
the Senior Civil Judge, Sundargarh.
2. Mr.Mohanty, learned counsel for the Petitioners assailing the
observation of the Senior Civil Judge, Sundargarh to return the
Plaint contended that once the suit is aiming for decree declaring the
joint right, title and interest of the Plaintiffs and Defendant Nos.2 to
11 and for declaring the judgment of the A.D.J., Sundargarh as
nullity, it is for the trial court to adjudicate such issue and the trial
court has no business in considering the admissibility of such suit
and returning the Plaint to the Plaintiffs with a view to move to High
Court for proper relief. Keeping in view the above, Mr.Mohanty,
learned counsel for the Petitioners while contending that there is
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illegal return of Plaint requests for interfering with the impugned
order and granting appropriate relief.
3. It is considering the submission of the learned counsel for the
Petitioners, this Court finds, in filing the Plaint, vide C.S.
No.250/2019, it appears, the Plaintiffs have the following relief :-
"7. That, the plaintiffs pray for following relieves :-
(a) To pass a decree declaring joint right, title and
interest of the plaintiffs and defendant nos.2 to 11
over the suit land and to confirm the possession of
the plaintiffs and defendant nos.2 to 11 over it and in
case of dispossession, recovery of possession be
given to the plaintiffs through Court.
(b) To declare the judgment of ADJ, Sundargarh as
nullity being passed against the dead person.
(c) To pass a decree of injunction against Defendant
No.1 not to interfere in the possession of plaintiffs
over the suit land.
(d) Any other relief or reliefs as deem fit and proper be
decreed."
Reading through the relief, this Court finds, while the
Plaintiffs seeking declaration of their joint right, title and interest
along with Defendant Nos.2 to 11 further declaring the judgment of
the A.D.J., Sundargarh as nullity but also for decree for injunction at
the same time, this Court finds, the suit has been valued at
Rs.60,000/- only. Keeping in view the relief and the disclosures on
the valuation of the suit, this Court finds, it may be a suit not
entertainable through the Senior Civil Judge and the Plaint could
have been returned on the ground of entertainability in such Court in
order to have the facilitator the scope of filing such Plaint in
appropriate court. It is considering the observation in the impugned
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order involved that in the contingency of relief, the Plaintiffs should
have approached the High Court, this Court opines, since the
decision in Appeal merges with the ultimate decree of the trial court,
nothing prevents the Party from challenging such decree by way of
fresh suit, particularly when such Party alleges that there involves a
decree behind back of such Party. However, keeping in view the
valuation of the suit, this Court finds, there was difficulty in
entertaining the suit on the file of Senior Civil Judge, Sundargarh.
4. In the above circumstance, this Court while interfering with
the observation of the trial court in the return of the Plaint to
facilitate the Plaintiffs to approach the High Court is not justified
and setting aside the said observation maintaining the order so far it
relates to return of Plaint, this Court observes, Petitioners have the
right to place the Plaint in appropriate court, particularly keeping in
view the valuation aspect disclosed in the Plaint. In the event the
Plaint is presented in the appropriate trial court, the same shall be
decided on its own merit and without being influenced by either of
the trial court in return of the Plaint or the observation of this Court
herein above.
5. The CMP stands disposed of accordingly.
(Biswanath Rath)
Judge
M.K.Rout
