Orissa High Court
Laxminarayan Swain Mohapatra vs Priyalata Swain Mohapatra And ... on 24 April, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 110 of 2023
Laxminarayan Swain Mohapatra .... Petitioner
Mr.Surya Prasad Mishra, Senior Advocate
being assisted by N.Sarakar, Advocate
-versus-
Priyalata Swain Mohapatra and others .... Opp. Parties
Mr. Biswajit Moharana, Advocate
[For Opposite Party Nos.1(a) to1(d)]
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 24.04.2023
1. 1. This matter is taken up through Hybrid mode.
2. Order dated 17th January, 2023 (Annexure-5) passed by
learned Senior Civil Judge, Puri in OS No.245 of 1972 (FD) is
under challenge in this CMP, whereby an application filed by
the Petitioner to recall the order dated 30th August, 2022 has
been dismissed.
3. Mr. Mishra, learned Senior Advocate appearing for the
Petitioner submits that OS No.245 of 1972 was filed by one
Aparna Bewa, wife of late Jayakrushna Swain Mohapatra for
partition. The suit was preliminarily decreed vide judgment
dated 12th August, 1975 with the following order:-
"The suit be decreed preliminarily in part for
partition for the aforesaid reliefs. Costs be borne by the
parties in proportion to their interest in the suit properties.
In case, amicable partition is not reached within a month
hence, the parties be at liberty to make move and get the
decree made final to crave out their respective shares."
// 2 //
Aparana Bewa died in the 1989. Thereafter, the Petitioner being
the adopted son of Jayakrushna Swain Mohapatra and Aparna
Bewa, filed a petition to make the preliminary decree final. The
Opposite Parties, who are Defendants in the suit, file their
objection stating that the Petitioner is not the adopted son of
Aparna Bewa. He was all throughout known as son of
Gangadhar Das Mohapatra of Baseli Sahi and has received
compensation in that capacity under the Land Acquisition Act.
Thereafter, the matter was posted for leading evidence on behalf
of the Petitioner. After several adjournments at the instance of
the Petitioner, the matter was posted on 30th August, 2022 for
the said purpose. When the Petitioner sought for adjournment,
learned trial Court dismissing such application, closed the
evidence on behalf of the Petitioner. An application was also
filed under Order XVIII Rule 17 CPC to recall the said order
which was also dismissed vide order dated 2nd December, 2022.
Assailing the same, the Petitioner had filed CP No.1263 of
2022. Since the petition to recall the order dated 30th August,
2022 was not properly couched, learned counsel for the
Petitioner withdrew the CMP to enable the Petitioner to file a
better application. Accordingly, this Court, vide order dated 12th
December, 2022, disposed of the CMP with an observation that
'In view of such submission, this Court without expressing any
opinion on the submission made by learned counsel for the
Petitioner disposes of this CMP as withdrawn.'. Accordingly,
an application enclosing the medical certificate in support of
illness of the Petitioner was filed. Learned trial Court, without
taking the same into consideration, dismissed the application
holding that similar such application had already been dismissed
// 3 //
and this Court without granting any opportunity to file fresh
application, disposed of the CMP as withdrawn.
3.1 It is his submission that if an opportunity is given the
Petitioner can adduce his evidence in one day without wasting
further time of the Court. Mr. Mishra, learned Senior Advocate,
therefore, prays for setting aside the impugned order under
Annexure-5 with a direction to learned trial Court to accept the
evidence in affidavit of the Petitioner on terms and conditions as
may be fixed this Court.
4. Mr. Moharana, learned counsel for the contesting
Opposite Parties objects to the above submission and contends
that the Petitioner has no locus standi to initiate the final decree
proceeding. He (Petitioner) claims to be the adopted son of
Aparana Bewa. It is also claimed that he was adopted in the year
1988, just after one year before said Aparna Bewa breathed her
last. It is his submission that in spite of several opportunities
right from the year 2018 being given, the Petitioner did not
adduce evidence. As such, the evidence from the side of the
Petitioner was closed on 30th August, 2022. In the application
under Order XVIII Rule 17 CPC filed earlier, no plea to the
effect that the Petitioner was suffering from Dengue fever was
taken. The said application was rejected vide order dated 2nd
December, 2022 and the Petitioner had unsuccessfully
challenged the same before this Court. It is only after disposal of
the earlier CMP No.1263 of 2022, the Petitioner took the plea
that he was suffering from Dengue fever from 28th August, 2022
till 5th September, 2022 and was advised complete bed rest.
Such a plea is an afterthought and only to harass the Opposite
// 4 //
parties. As such, a subsequent application on a different plea is
not maintainable.
4.1 It is his submission that the Petitioner has other remedy to
get his grievance redressed by establishing that he is the son of
late Aparna Bewa. He, therefore, prays for dismissal of the CMP.
5. Considering the submissions of learned counsel for the
parties and on scrutiny of record, it appears that the Petitioner
initiated the final decree proceeding on the plea that he was the
adopted son of Aparna Bewa. Said Aparna Bewa died in the
year 1989. The Final Decree proceeding was initiated in the
year 2002 and there was serious objection by the Opposite
Parties to the locus standi of the Petitioner to initiate such final
decree proceeding. Although the Petitioner was given several
opportunities right from 2018 till 30th August, 2022 to adduce
evidence in support of his case, but he failed to do so and thus
the evidence from the side of the Petitioner was closed vide
order dated 30th August, 2022. An application under Order
XVIII Rule 17 CPC was filed, which was dismissed vide order
dated 2nd December, 2022. The Petitioner unsuccessfully
challenged the same in CMP No.1263 of 2022. Learned counsel
for the Petitioner prays for withdrawal of the said CMP to
enable the Petitioner to file a better application before learned
trial Court. This Court without expressing any opinion on the
merit of the said application made by the Petitioner, disposed of
the said CMP, vide order dated 12th December, 2022.
Thereafter, another application under Order XVIII Rule 17 CPC
was filed along with a medical certificate stating that the
Petitioner was suffering from Dengue from 28th August, 2022 to
// 5 //
5th September, 2022 and was advised complete bed rest. Said
plea was never taken by the Petitioner at any stage either at the
time of seeking for adjournment on 30th August, 2022 or in the
earlier petition filed under Order XVIII Rule 17 CPC.
6. It is, however, submitted by learned Senior Advocate
that although the nomenclature of the petition is not correct, but
learned trial Court ought to have looked into the averments and
prayer made in the petition filed under Order XVIII Rule 17
CPC to grant the relief. This submission of Mr. Mishra, learned
Senior Advocate is legally tenable, but in the facts and
circumstances of the case, more particularly the plea of the
Petitioner claiming himself to the adopted son, has filed the
Final Decree proceeding, which is yet to be established, this
Court feels that learned trial Court has committed no error in
dismissing the application.
7. Since right from 2018 till 30th August, 2022 the Petitioner
was only taking adjournments to adduce evidence in support of his
case, this Court is of the considered opinion that he is not entitled
to the relief sought for. As such, I am not inclined to interfere with
the order under Annexure-5 impugned herein.
8. Accordingly, the CMP being devoid of any merit stands
dismissed.
Issue urgent certified copy of the order on proper
application.
(K.R. Mohapatra)
Judge
s.s.satapathy
