Orissa High Court
Jayabati Dutta And Others vs Gaya Prasad Dutta And Others on 10 November, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP NO. 219 of 2017
Jayabati Dutta and others .... Petitioners
Mr. Samir Kumar Mishra, Advocate
-versus-
Gaya Prasad Dutta and others .... Opp. Parties
None
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 10.11.2022
IA No.34 of 2022 & CMP NO. 219 of 2017
6. 1. This matter is taken up through hybrid mode.
2. The CMP is listed today for consideration of IA No.344
of 2022 for extension of interim order dated 27th February, 2017
passed in Misc. Case No.249 of 2017.
3. In course of hearing, this Court feels that merits of the
CMP has to be gone into. Hence, on consent of learned counsel
for the Petitioners, the matter is taken up for final disposal, as
the notice being sufficient on the contesting Opposite Parties
and they are being represented by learned counsel; but, none
appears today on their behalf.
4. This CMP has been filed assailing order dated 13th July,
2017 (Annexure-2) passed by learned Civil Judge (Senior
Division), Baripada in CS No.107 of 2011, whereby it directed
to transpose Defendant Nos.19 to 24 as Plaintiffs and to pay ad
valorem court fee.
5. Mr. Mishra, learned counsel for the Petitioner submits
that the Petitioner is the wife of late Pitambar Dutta and
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Defendant Nos.19 and 24 are his children. The suit has been
filed to declare the sale deed executed by Defendant No.18 in
favour of Defendant Nos.25 to 30 as illegal and void and hence
the same is not binding on the Plaintiff. In the alternative, the
Plaintiff also prayed for partition and permanent injunction. A
prayer for preemption was also made in the said suit. After
closure of the argument, the matter was reserved for
pronouncement of judgment. But instead of pronouncing the
judgment, the impugned order has been passed. It is submitted
by Mr. Mishra, learned counsel for the Petitioner that no
application was ever filed by any party to transpose Defendant
Nos.19 to 24 as Plaintiffs. When the Defendant Nos.19 to 24
have never sought to prosecute the suit along with the Plaintiff,
the Court should not compel them to prosecute the suit. If the
suit is not maintainable in law, the Plaintiff will fail in her suit.
But, the Court could not have passed the impugned order as it is
against the settled position of law. Hence, he prays for setting
aside the impugned order and direct learned trial Court for
hearing the matter afresh and pronounce the judgment.
6. None appears for the contesting Opposite Parties,
although they are represented by learned counsel. On perusal of
the impugned order, it appears that after closure of the
argument, the suit was posted to 28th February, 2022 for
pronouncement of judgment. But, while preparing the judgment,
learned Court on perusal of record, observed that the widow of
late Pitambar Dutta could not have filed the suit. Although the
Petitioner valued the suit at Rs.49,50,000/-, she being a lady was
exempted from payment of ad valorem court fee. Learned trial
Court expressing his astonishment for joining the children of
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late Pitambar Dutta, as Defendant Nos.19 to 24, has passed the
impugned order, as aforesaid.
7. Admittedly, none of the parties to the suit had prayed for
impletion of Defendant Nos.19 to 24 as Plaintiffs to the suit.
Hence, the Court could not have compelled Defendant Nos.19
to 24 to be transposed as Plaintiffs to prosecute the suit, when
they preferred to defend their case as Defendants. Only because
ad valorem court fee has not been paid, Defendant Nos.19 to 24
could not have been directed to be transposed as Plaintiffs.
Further, the Court cannot compel a party to prosecute suit, until
and unless she/he shows interest for the same. The Plaintiff has
to prove his case both facts and law to succeed in the suit. In
that view of the matter, the impugned order is not sustainable.
8. Accordingly, the impugned order 13th July, 2017
(Annexure-2) is set aside and the matter is remitted back to
learned trial Court to proceed with the suit from the stage of
argument and pronounce judgment at an early date giving
opportunity of hearing to the parties concerned.
9. The CMP is disposed of with the observation and
direction, as made above.
10. Interim order dated 27th February, 2017 passed in Misc.
Case No.249 of 2017
Issue urgent certified copy of the order on proper
application.
(K.R. Mohapatra)
Judge
s.s.satapathy
