Baijayanti Pradhan vs Biswanath Gauda And Others
2023 Latest Caselaw 4185 Ori

                    IN THE HIGH COURT OF ORISSA AT CUTTACK
                                 CMP NO.362 OF 2023
                 Baijayanti Pradhan                    ....        Petitioner
                                       Mr. Bibekananda Bhuyan, Advocate
                                        -versus-
                 Biswanath Gauda and others            .... Opp. Parties
                                               Mr. S.R. Pattnaik, Advocate
                                                     (For Opp. Party No.1)

                      CORAM:
                      JUSTICE K.R. MOHAPATRA
                                      ORDER

Order No.                            24.04.2023

   2.       1.      This matter is taken up through hybrid mode.

2. Mr. Smita Ranjan Patnaik, learned counsel enters appearance on behalf of Opposite Party No.1 by filing Vakalatnama in Court, which is taken on record.

3. Order dated 22nd March, 2023 (Annexure-6) passed by learned Senior Civil Judge, Balliguda in C.S. No.25 of 2018 is under challenge in this CMP, whereby an application filed by the Petitioner under Order XI Rule 12 C.P.C. to direct the Defendant No.1 to discover on oath the Power of Attorney executed by K. Mahammad Aman in favour of Pankaj Majhi and sale deed dated 29th December, 2001 has been rejected.

4. Mr. Bhuyan, learned counsel for the Petitioner submits that the suit has been filed by the Plaintiff-Petitioner for declaration of right, title and interest over the suit land. The Plaintiff claims that she has purchased the suit land by virtue of the registered sale deed dated 27th January, 2003 from the recorded owner, namely, Mukunda Kanhara. On the other hand, the Defendant No.1 in his written statement has stated that said

// 2 //

Mukunda Kanhara sold the suit land to K. Mahammad Aman vide registered sale deed and in turn, said K. Mahammad Aman sold the suit land to the Defendant No.1 through his Power of Attorney, namely, Pankaj Majhi, on 29th December, 2001. The Plaintiff has obtained the certified copy of the registered sale deed, but there is no mention about the details of Power of Attorney allegedly executed by K. Mahammad Aman in favour of Pankaj Majhi. When the suit became ready for adducing evidence, the Plaintiff filed an application under Order XI Rule 12 C.P.C. to direct the Defendant No.1 to discover on oath the aforesaid Power of Attorney and registered sale deed dated 29th December, 2001. Said application was rejected on a flimsy ground that the Plaintiff-Petitioner has taken several adjournments for adducing evidence.

4.1 Mr. Bhuyan, learned counsel for the Petitioner further submits that when the Defendant No.1 claims that he had purchased the property from Power of Attorney, namely, K. Mahammad Aman and the said fact was not reflected in detail in the certified copy of the sale deed dated 29th December, 2001, it is incumbent on the part of Defendant No.1 to discover on oath the registered Power of Attorney executed by K. Mahammad Aman in favour of Pankaj Majhi and also registered sale deed dated 29th December, 2001 for just adjudication of the suit. He also refers to Order XI Rule 21 C.P.C. and submits that in the event such document is not produced, the Defendant No.1 at the discretion of the Court may be non-suited. Since those two documents are vital for just adjudication of the suit, application under Order XI Rule 12 C.P.C. ought to have been allowed. He, therefore, prays for setting aside the impugned order under

// 3 //

Annexure-6 and to direct the Defendant No.1 to discover on oath the aforesaid documents.

5. Mr. Pattnaik, learned counsel for the Opposite Parties vehemently objects to the same and contends that the Defendant No.1 relies upon the sale deed dated 29th December, 2001 and the Plaintiff in her pleading has categorically stated that she claims title over the suit land by virtue of the registered sale deed dated 27th January, 2003, which has been executed by Mukunda Kanhara and it is specifically pleaded in the plaint that since there is no such Power of Attorney, burden lies on the Defendant No.1 to prove the same. In the event Defendant No.1 fails to prove the sale deed, he will lose in the suit. He further submits that in C.S. No.26 of 2018, right, title and interest of Defendant No.1 over the suit land has already been declared vide judgment dated 15th November, 2019. Thus, learned trial Court has committed no error in rejecting the petition under Order XI Rule 12 C.P.C.

6. Considering the rival contentions of the parties and on perusal of the record, it appears that application under Order XI Rule 12 C.P.C. has been filed to direct the Defendant No.1 to discover on oath the Power of Attorney executed by K. Mahammad Aman in favour of Pankaj Majhi and registered sale deed dated 29th December, 2001. Admittedly, the Plaintiff- Petitioner has obtained the certified copy of sale deed dated 29th December, 2001. It is alleged by the learned counsel for the Petitioner that details of the Power of Attorney is not there in the registered sale deed dated 29th December, 2001. It also appears that the Plaintiff at paragraph-8 of the plaint has categorically stated that "there was no registered Power of Attorney of K.

// 4 //

Mahammad in favour of Pankaj Majhi. The sale deed dated 29th December, 2001 does not indicate that the date of so-called Power of Attorney or its registration."

7. Admittedly, the Plaintiff has not yet adduced her evidence in the matter. Certified copy of the registered sale deed dated 29th December, 2001 obtained by the Plaintiff has not yet been admitted in evidence. Thus, learned trial Court has committed no error in refusing to entertain the petition under Order XI Rule 12 C.P.C.. If, at all, it is established by the Plaintiff that the sale deed dated 29th December, 2001 was executed by Pankaj Majhi without being properly authorized by K. Mahammad Aman, then the burden will shift to the Defendant No.1 to prove the same. Thus, this Court is of the considered opinion that it is not necessary at this stage to entertain an application under Order XI Rule 12 C.P.C. more particularly when the suit is posted for hearing and the Plaintiff has taken several adjournments to adduce evidence in the suit.

8. Accordingly, I find no infirmity in the impugned order. Hence, the CMP is dismissed.

Urgent certified copy of this order be granted on proper application.

                                           (K.R. Mohapatra)
bks                                              Judge