Sabita Patra vs Sanjukta Patra
2023 Latest Caselaw 4188 Ori

                   IN THE HIGH COURT OF ORISSA AT CUTTACK
                             CMP NO. 735 OF 2019
                 Sabita Patra                           ....       Petitioner
                                          Mr. Dayanidhi Mohanty, Advocate
                                          -versus-
                 Sanjukta Patra                         ....     Opp. Party

                                                    Mr. P.K. Biswsal, Advocate

                      CORAM:
                      JUSTICE K.R. MOHAPATRA
                                       ORDER

Order No.                             24.04.2023

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

2. Order dated 24th June, 2019 (Annexure-4) passed by learned 5th Additional Senior Civil Judge, Cuttack in C.S. No. 888 of 2016 is under challenge in this CMP, whereby an application filed by the Defendant-Petitioner under Order VII Rule 11 C.P.C. has been rejected.

3. Learned counsel for the Petitioner submits that the suit has been filed for damages for malicious prosecution. It is his submission that parties to the suit are family members. In G.R. Case No. 283 of 2007, learned trial Court vide its judgment dated 15th September, 2015 acquitted the Plaintiff. On the request of the Plaintiff, the Defendant did not prefer any appeal challenging the judgment of acquittal. Hence, after lapse of the appeal period, the Plaintiff being not properly advised has filed the suit. Since there was amicable settlement between the parties, the suit is not maintainable. But, learned trial Court holding that the fact

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relating to criminal case can only be adjudicated by adducing evidence in the suit, rejected the petition. Hence, this CMP has been filed.

4. Learned counsel for the Opposite Party submits that after vacation of the interim order, as per the guidelines of the Hon'ble Supreme Court, learned trial Court has proceeded with trial of the suit and the Plaintiff's evidence has already been recorded. The suit is now posted for cross-examination of the Plaintiff. Hence, at this stage, the CMP should not be entertained.

5. Considering the rival contentions of the parties and on perusal of the record, it appears that the Defendant-Petitioner filed a petition under Order VII Rule 11 C.P.C. making some factual averments, which can only be adjudicated by receiving evidence from the parties. A petition under Order VII Rule 11 C.P.C. can be decided on the averments made in the plaint only. No extraneous material can be taken into consideration while adjudicating a petition under Order VII Rule 11 C.P.C.

6. In that view of the matter, this Court finds that learned trial Court has committed no error in dismissing the petition under Order VII Rule 11 C.P.C. Accordingly, the CMP being devoid of any merit stands dismissed.

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

                                          (K.R. Mohapatra)
bks                                             Judge