Maheswar Rout vs Union Of India & Ors
2023 Latest Caselaw 294 Ori

             IN THE HIGH COURT OF ORISSA AT CUTTACK

                                  SAO No.28 of 2012

           Maheswar Rout                         ....            Appellant

                                              -versus-

           Union of India & Ors.                 ....          Respondents


                               CORAM:
                  JUSTICE BIRAJA PRASANNA SATAPATHY

                                         ORDER

09.01.2023 Order No

09. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.

2. Heard Mr. S.K. Mishra, learned counsel for the Appellant and Mr. Chandrakanta Pradhan, learned Sr. Panel Counsel appearing for the Respondents.

3. This appeal has been filed challenging the Judgement dtd.16.10.2012 passed in RFA No. 19 of 2012 by the learned District Judge, Balasore, wherein learned District Judge while setting aside the ex parte Judgment and decree passed by the learned Civil Judge (Sr. Division), Soro, remitted the matter for fresh trial with certain observations.

4. Mr. Mishra, learned counsel for the Appellant contended that after filing their written statement since the Respondents herein did not participate in the suit, they were set ex parte and accordingly the ex parte judgment and decree was passed. It is also contended that the Respondents have no locus standi as well as no interest in the suit property and learned trial Court had rightly declared the right title interest vide Judgment and decree passed on 11.02.2012 and // 2 //

24.02.2012 in T.S. No. 517 of 1989-I. Accordingly, it is contended that learned 1st Appellate Court should not have remitted the matter by setting aside the Judgment and decree.

5. Mr. Pradhan, learned Sr. Panel Counsel appearing for the Respondents on the other hand submitted that the suit land in question was acquired in the year 1929 and construction over the suit land has been made in the year 1967 and the Respondents are in possession over the suit land by constructing the building, where the branch post office is functioning at present. It is also contended that the Respondents will be seriously prejudiced if the ex parte Judgment and decree will be allowed to stand. It is further contended that learned 1st Appellate Court after going through all the materials available has passed a reasoned order, which needs no interference.

6. In view of such rival submissions made by the learned counsel appearing for the Parties and taking into account the fact that the Appellant had obtained an ex parte judgment and decree with declaration of right title interest over the suit land, this Court is of the view that the Respondents will be seriously prejudiced if they are not given an opportunity to contest the matter before the learned trial Court.

7. Therefore, this Court finds no illegality or irregularity with regard to the Judgment passed by the learned 1st Appellate Court and the order of remand has been passed taking recourse to the provision contained under Order 41 Rule 23-A of the Code of Civil Procedure. While holding so when this Court is not inclined to interfere with the impugned Judgment dtd.16.10.2012 passed in RFA No. 19 of 2012 by the learned District Judge, Balasore and confirms the directions contained in the Judgment. However, taking

// 3 //

into account the submission made by the learned counsel appearing for the Appellant that a considerable time has passed in the meantime and the Appellant/Plaintiff be allowed to adduce further evidence in the matter, this Court observes that if any such application is filed by the Plaintiff to adduce any further evidence that be allowed with allowing the defendants to cross examine.

8. However, it is observed that the Respondents herein shall adduce their evidence after cross-examining the Plaintiff witnesses within a period of two (2) months from the date of their appearance before the learned trial Court. The Respondents are directed to appear before the trial Court along with a certified copy of this order by 30th January, 2023. Learned trial Court is directed to take up the suit by fixing the date of hearing and dispose of the matter within a period of four (4) months from the date of receipt of this order. It is also observed that if the Respondents fail to give their evidence within the time stipulated by this Court, learned trial Court will be at liberty to proceed with the suit and decide the same on its own merit.

9. The appeal is disposed of with the aforesaid observation and direction.

(Biraja Prasanna Satapathy) Judge Sneha