Orissa High Court
Santana Santara vs David Simons And Others on 25 August, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP NO.1407 OF 2015
Santana Santara .... Petitioner
Mr. Abhilash Mishra, Advocate
-versus-
David Simons and others .... Opp. Parties
None
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 25.08.2023
9. 1. This matter is taken up through hybrid mode.
2. Petitioner in this CMP seeks to assail the order dated
28th August, 2015 (Annexure-5) passed by learned District
Judge, Balasore in CMA No.132 of 2011, whereby he refused to
recall the order dated 6th July, 2011 passed in RFA No.170 of
2010 allowing withdrawal of the appeal.
3. Mr. Mishra, learned counsel for the Petitioner submits
that Title Suit No.9 of 1997 was filed in the Court of learned
Civil Judge (Senior Division), Balasore with a prayer for
partition and permanent injunction. Opposite Party Nos. 1 and 2
claimed that the property in question has been bequeathed in
their favour by way of a Will and probate of the same has been
granted in C.S. No.1165 of 2008. Assailing the said judgment,
the Petitioner preferred FAO No.550 of 2010 before this Court.
Although the suit was decreed but challenging the allotment of
share in the preliminary decree, the Petitioner preferred RFA
No.170 of 2010. During pendency of the suit, the Respondent-
Opposite Party by practicing fraud obtained signature of the
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Petitioner on a plain paper and managed to file application under
Order XXIII Rule 1 CPC for withdrawal of the suit. On the same
date, an application under Order XXIII Rule 3 CPC was also
filed allegedly signed by the Petitioner along with Respondent-
Opposite Party Nos. 1, 2 and 6 to 10. Both the applications were
taken up together and vide order dated 6 th July, 2011 the Petition
under Order XXIII Rule 1 CPC was allowed thereby permitting
the Petitioner to withdraw the appeal. Accordingly, the appeal
was dismissed as withdrawn. Immediately, thereafter, the
Petitioner filed an application under Section 151 CPC in CMA
No.132 of 2011 for recalling the order dated 6 th July, 2011
dismissing the suit for withdrawal of the appeal and 25 th
November, 2011 for recording the compromise. The said
application was taken up for consideration on 6 th August, 2015
and the impugned order was passed on 28th August,
2015(Annexure-5).
4. It is his submission that in the Petition under Section 151
CPC, the Petitioner has elaborately discussed the act of fraud
played on her by the Respondent Nos. 1, 2 and 6 to 10. The
Petitioner although signed on the petition and nodded her head
to the query of the Court for withdrawal of the appeal, but she
could not hear what the Court said. As instructed by Respondent
No.6, she only said nodded her head in the affirmative to the
query of the Court. The Respondent No.6 managed to obtain the
signature plain paper and converted to a petition under Order
XXIII Rule 1 CPC for withdrawal of the appeal. Those aspects
were not taken into consideration by learned appellate Court.
Although a compromise has been recorded, but as yet no decree
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has been drawn up. When an allegation of fraud has been made,
learned appellate Court ought to have given the Petitioner an
opportunity to prove the same. But without adhering to the said
procedure, the impugned order under Annexure-5 was passed.
Hence, this CMP has been filed.
5. None appears for the Opposite Parties at the time of call,
although they are represented through learned counsel.
6. Considering the submission of Mr. Mishra, learned
counsel for the Petitioner and on perusal of the record more
particularly, order dated 20th May, 2011, on which date the
petition under Order XXIII Rule 1 CPC was taken up for
consideration, the Appellant herself along with Respondent Nos.
1, 2 and 6 to 10, were present in the Court. Learned appellate
Court has categorically recorded that the contents of the Petition
was read over and explained to the parties in presence of their
advocates including the Petitioner, to which they admitted to be
correct. The Petitioner in her petition under Section 151 CPC
also stated that she was present in Court in person and nodded to
the query of the Court in the affirmative. But she explained that
she could not understand what the Court said to her and only
acted as per instruction of the Respondent No.6. In view of the
fact that the contents of petition under Order XXIII Rule 1 CPC
was read over and explained to the Petitioner along with
Respondents present in the Court along with their advocates and
they admit such contents to be true and correct, there remains no
doubt that the Petitioner was aware of the contents of the petition
under Order XXIII Rule 1 CPC.
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7. It further appears that the Petitioner had signed on the
order sheet of the Court after giving consent to the petition under
Order XXIII Rule 1 CPC. Thus, the story developed by the
Petitioner in the petition for recall is not believable. The contents
of the petition also disclose that the Petitioner had consented the
contents of the petition under Order XXIII Rule 1 CPC.
8. As a consequence of withdrawal of the suit, the
Petitioner also withdrew the appeal i.e., FAO No.550 of 2010
pending before this Court. Thus, it appears that the petition
under Order XXIII Rule 1 CPC is nothing but an afterthought to
protract the litigation and harass the Opposite Parties.
9. Accordingly, the CMP is dismissed.
Urgent certified copy of this order be granted on proper
application.
(K.R. Mohapatra)
Rojalin Judge
Signature Not Verified
Digitally Signed
Signed by: ROJALIN NAYAK
Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 29-Aug-2023 19:56:18
