Orissa High Court
Aparna Bewa And Others vs Bijuli Kamila And Others on 30 November, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 1189 OF 2022
Aparna Bewa and others .... Petitioners
Mr. Prafulla Kumar Rath, Advocate
-versus-
Bijuli Kamila and others .... Opp. Parties
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 30.11.2022
01. 1. This matter is taken up through hybrid mode.
2. Order dated 29th September, 2022 (Annexure-1) passed by
learned 1st Additional Senior Civil Judge, Balasore in F.D.O.S.
No.213 of 1980-I is under challenge in this CMP, whereby an
application under Section 152 C.P.C. filed by the Petitioners has
been rejected.
3. Mr. Rath, learned counsel for the Petitioners submits that
O.S. No.213 of 1980-I was filed for partition and preliminary
decree was passed. During final decree proceeding, some
developments took place. Since learned trial Court refused to
take into consideration the contention of the Petitioners with
regard to adjustment of the property purchased before making the
preliminary decree final vide his order dated 4th July, 2014, the
Petitioners moved this Court in CMP No.866 of 2014 disposed of
on 8th December, 2015 with the following direction:
"7. From the facts narrated hereinabove and
keeping in view the dispute involved in the case
specifically keeping in mind the prayer made in the
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application at the instance of present petitioners and
further following the decision of this Court as well as
the Hon'ble Apex Court, as discussed herein above,
this Court observes that before sending the Civil
Court Commissioner to decide the suit land in respect
the possession of the co-sharers, the court taking up
the final decree proceeding ought to have decided the
merit of the application filed by the present
petitioners and in the event it would have agreed that
the claim of the present petitioners with regard to
their right devolving upon death of some of the
coparceners and by virtue of the subsequent sale
deeds at the instance of some of the coparceners, in
such event could have gone for a second preliminary
decree and thereafter gone for the final decree of the
proceeding. Consequently, while interfering in the
impugned order, this Court remits back the matter to
the trial court to take a decision on the application of
the petitioner in the light of the observation made
hereinabove and giving opportunity of hearing to the
opposite parties and pass an order afresh. Till such
period, deputation of Civil Court Commissioner for
dividing the suit property respecting the possession of
co-sharers of the suit land shall remain stayed."
Accordingly, the Petitioners produced documents, which
were marked as Exts.A-2 to W-2/3 which included Exts.G/2 &
K/2. But, while passing the preliminary decree on 9th March,
2018, learned trial Court omitted to take into consideration the
land purchased in under the Ext.G/2 & K/2.
4. Since it was an inadvertent omission, the Petitioners filed
an application under Section 152 C.P.C. for amendment of the
final decree proceeding and to incorporate Exts.G/2 & K/2 in the
final decree proceeding. The said application has been rejected
vide order dated 29th September, 2022 under Annexure-1. Hence,
this CMP has been filed.
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5. Mr. Rath, learned counsel for the Petitioners referring to
the order passed in CMP No.866 of 2014, Exhibits annexed to
the CMP as Annexure-12 and observation of learned trial Court
in the penultimate paragraph of the judgment dated 9th March,
2018, submitted that learned trial Court has taken into
consideration Exts.G/2 & K/2 in the said judgment wherein it is
observed as under:
"Furthr the OP Nos.1 to 7 have contended that
the OP Nos.2,3 & 6 have purchased land from OP
Nos.12,13,14 & 17. In respect of purchase by OP No.2
certain documents has been provided vide Exts.A-2 to W-
2/3."
6. Thus, it is apparent that omission of Exts.G/2 & K/2 in the
said judgment was an accidental slip and inadvertent omission
and squarely falls under Section 152 C.P.C. In order to avoid
multiplicity of litigation, learned trial Court ought to have
allowed the said petition and incorporated Exts.G/2 & K/2 in the
subsequent preliminary decree. However, learned trial Court
relying upon the case law in Punjab -v- Darshan Singh,
reported in AIR 2003 SC 4179 and Civil Appeal No.4876 of
2007 dated 12th October, 2007 held that only accidental omission
and mistake is permissible to be corrected under Section 152
C.P.C. and rejected the petition. It is also submitted that the
impugned order under Annexure-1 is cryptic and non-speaking
one. Hence, the impugned order under Annexure-1 is liable to be
set aside and the matter be remitted back to learned trial Court for
fresh adjudication of the petition under Section 152 C.P.C..
7. Considering the submission made by learned counsel for
the Petitioners, this Court finds that although learned trial Court
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has referred to Exts.A-2 to W-2/3, but, subsequently while
discussing the matter did not refer to the Exts.G/2 & K/2 in the
said paragraph. As such, incorporation of said Exts.G/2 & K/2
in the said judgment as well as preliminary decree, will require
adjudication, which is not permissible under Section 152 C.P.C..
In that view of the matter, the Petitioners have remedy either to
file a review or file an appeal against the said judgment and
decree.
8. At this stage, Mr. Rath, learned counsel submits that
interest of justice will be best served, if the Petitioners prefer an
appeal, if so advised. But, there is a delay of more than four years
in preferring the appeal. Hence, he prays for a direction to
consider the application for condonation of delay liberally.
9. In view of the above, this Court without interfering with
the impugned order under Annexure-1, disposes of the CMP with
an observation that, if the Petitioners file an appeal against the
judgment and decree in question within a period of two weeks
hence, delay in filing the appeal may be considered liberally
keeping in mind that the CMP was pending before this Court
from 24th November, 2022 till date along with other grounds.
Urgent certified copy of this order be granted on proper
application.
(K.R. Mohapatra)
Judge
ms
