Sapneswar Mahadev vs Damodar Nanda And Others
2023 Latest Caselaw 10495 Ori

Signature Not Verified
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 01-Sep-2023 10:23:39


                                                 IN THE HIGH COURT OF ORISSA AT CUTTACK
                                                               W.P.(C) No. 9539 OF 2012
                                               Sapneswar Mahadev, Jagatsinghpur     ....        Petitioner
                                                                              Mr. N.P. Parija, Advocate
                                                                     -versus-
                                               Damodar Nanda and others             .... Opp. Parties
                                                                          Mr. Gurudutta Kar, Advocate
                                                                           (For Opp. Party Nos.1 and 2)

                                                    CORAM:
                                                    JUSTICE K.R. MOHAPATRA
                                                                     ORDER

                        Order No.                                   31.08.2023
                              7.          1.      This matter is taken up through hybrid mode.

2. Order dated 2nd May, 2012 (Annexure-5) passed by learned Civil Judge (Junior Division), Kujang in C.S. No.122 of 2010 is under challenge in this writ petition, whereby further proceeding of the suit has been stayed till disposal of R.S.A. No.228 of 2009 pending before this Court.

3. Mr. Parija, learned counsel for the Petitioner submits that the suit has been filed for eviction of the Defendants-Opposite Party Nos.1 to 3. The Plaintiff-Petitioner is a deity, which is a perpetual minor. During pendency of the suit, an application was filed by the Defendants-Opposite Party Nos.1 to 3 to stay further proceeding of the suit till disposal of R.S.A. No.228 of 2009 pending before this Court, which has been allowed.

4. It is his submission that the Defendants herein had filed T.S. No.168 of 1999 for declaration of their right, title and interest over the self-same subject matter of dispute. The suit being dismissed, they preferred R.F.A. No.19 of 2005, which was also dismissed. Assailing the judgment and decree passed

Signature Not Verified // 2 // Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Sep-2023 10:23:39

in R.F.A. No.19 of 2005 was filed, which was also dismissed. Hence, they preferred R.S.A. No.228 of 2009, which is pending before this Court for adjudication. He submits that an appeal under Section 100 CPC is not a continuation of a suit. Hence, there is no legal impediment to proceed with the suit for eviction filed by the Plaintiff-Petitioner. Learned trial Court without appreciating the same has passed the impugned order under Annexure-5. Hence, this writ petition has been filed.

5. Mr. Kar, learned counsel for the Opposite Party Nos.1 and 2 submits that R.S.A. No.228 of 2009 has already been admitted framing substantial questions of law. In the event, the suit is allowed to continue, there is every likelihood of conflict of decision and the Defendants-Opposite Party Nos.1 to 3 will be highly prejudiced. It is the admitted case of the Plaintiff- Petitioner that Defendant No.1 is in possession over the suit property. In that view of the matter, learned trial Court has committed no error in allowing the prayer to stay further proceeding of the suit till disposal of R.S.A. No.228 of 2009.

6. Taking note of the submissions made by learned counsel for the parties, this Court is of the considered opinion that when the controversy with regard to subject matter of dispute is pending for adjudication before this Court in R.S.A. No.228 of 2009 and the appeal is stated to have been admitted framing substantial questions of law, learned trial Court has committed no error in staying further proceeding of C.S. No.122 of 2010 till disposal of the said appeal.

7. It is alleged by Mr. Parija, learned counsel for the Petitioner that the Opposite Parties, who are appellants in the

Signature Not Verified // 3 // Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Sep-2023 10:23:39

said R.S.A. are not taking steps for early disposal of the said appeal. Mr. Kar, learned counsel for the Opposite Party Nos.1 and 2 submits that he will take steps to get the matter listed within a fortnight.

8. In view of the above, this Court disposes of the writ petition without interfering with the impugned order under Annexure-5 with an expectation that steps shall be taken for early disposal of R.S.A. No.228 of 2009.

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

                                                                            (K.R. Mohapatra)
                ms                                                                Judge