Orissa High Court
Bata Krushna Nayak And Another vs Shyama Sundar Sahoo And Others on 9 March, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 609 OF 2015
Bata Krushna Nayak and another .... Petitioners
Ms. Mamata Mishra, Advocate
-versus-
Shyama Sundar Sahoo and others .... Opp. Parties
Mr. Omkar Panda, Advocate
on behalf of Mr. S. Mishra, Advocate
(For Opp. Party Nos.1 to 8)
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 09.03.2023
13. 1. This matter is taken up through hybrid mode.
2. Order dated 20th February, 2015 (Annexure-1) passed by
learned Civil Judge (Senior Division), Jajpur in C.S. No.195 of
2012 is under challenge in this CMP, whereby an application filed
by the Petitioners-Defendant Nos.9 and 10 under Order XV Rules
1 and 2 C.P.C., has been rejected.
3. Ms. Mishra, learned counsel for the Petitioner submits
that the matter in issue has already been decided in T.S. No.101 of
1930, which was disposed of on compromise. Thus, the parties
are not at issue in the present suit itself. Hence, after framing of
the issue, Defendant Nos.9 and 10 filed an application under
Order XV Rules 1 and 2 C.P.C. to dismiss the suit, as the parties
are not at issue. The said application was rejected on the ground
that since the issues have already been framed, an application
under Order XV Rules 1 and 2 C.P.C. is not maintainable. It was
further observed that the question involved in the petition under
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Order XV Rules 1 and 2 C.P.C. being a pure question of law,
Petitioners-Defendant Nos.9 and 10, if so advised, may file a
properly constituted application under Order XIV Rule 2 C.P.C. at
the appropriate stage.
4. It is her submission that in view of the judgment and
decree passed in T.S. No.101 of 1930, which was disposed of by
learned Munsif, Jajpur on compromise, nothing remains to be
adjudicated in the present suit. Thus, an application under Order
XV Rules 1 and 2 C.P.C. was filed to dismiss the suit, as the
parties are not at issue and in that process valuable judicial time
could have been saved. Learned trial Court without realizing the
same, dismissed the application vide order under Annexure-1.
Hence, this CMP has been filed.
5. Mr. Panda, learned counsel being authorized by Mr.
Mishra, learned counsel for the Opposite Party Nos.1 to 8 submits
that considering the rival contentions of the parties issues have
been framed in the suit. Thus, it cannot be said that parties are not
at issue. It is his submission that due to lapse of the interim
order, trial of the suit is continuing for last two years. Thus, at
this stage entertaining an application under Order XV Rules 1 and
2 C.P.C. does not arise at all. Further entertaining an application
under Order XIV Rules 1 and 2 C.P.C. will amount to a piecemeal
trial, which should not be undertaken in the facts and
circumstances of the case. Accordingly, the impugned order
under Annexure-1 warrants no interference.
6. Considering the rival contentions of the parties and on
perusal of the record, it appears that after the notice on the
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Defendants were made sufficient, an application was filed by
Petitioners-Defendant Nos.9 and 10 under Order XV Rules 1 and
2 C.P.C. to dismiss the suit on the ground that the parties are not
at issues. However, considering the rival contentions of the
parties, issues have been framed and as submitted by Mr. Panda,
learned counsel for the Plaintiffs-Opposite Party Nos.1 to 8, trial
has already commenced in the suit itself. Thus, question of
entertaining an application under Order XV Rules 1 and 2 C.P.C.
at this stage does not arise at all.
7. Accordingly, this CMP is disposed of with an observation
that learned trial Court should make all endeavour to dispose of
the suit expeditiously in accordance with law. Parties are directed
to co-operate with learned trial Court for early disposal of the suit.
8. Interim order dated 18th June, 2015 passed in Misc. Case
No.617 of 2015 stands vacated.
Urgent certified copy of this order be granted on proper
application.
(K.R. Mohapatra)
ms Judge
