Suresh Chandra Rana vs Kampala Rana
2023 Latest Caselaw 14127 Ori

Signature Not Verified
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Senior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 13-Nov-2023 13:13:04




                                                  IN THE HIGH COURT OF ORISSA AT CUTTACK
                                                                W.P(C) No. 18109 OF 2013
                                                     (An application under Articles 226 & 227 of the
                                                                  Constitution of India)
                                                                          *****

                                          Suresh Chandra Rana
                                                                                     ......                  Petitioner
                                                                                     -Versus-
                                          Kampala Rana
                                                                                     .......                 Opp. Party

                                          Advocates appeared:
                                               For Petitioner     :   Mr. Samir Kumar Mishra, Senior Advocate
                                                                      being assisted by
                                                                      Ms. Sushrita Sahoo, Advocate

                                               For Opp. Party     :    Mr. Bibhuti Bhusan Mishra, Advocate

                                                  CORAM :
                                                  MR. JUSTICE K.R. MOHAPATRA

                                                       -----------------------------------------------
                                                       Heard and disposed of on 10.11.2023
                                                       ----------------------------------------------

                                                                      JUDGMENT

K.R. Mohapatra, J.

1. This matter is taken up through hybrid mode.

2. Order dated 22nd July, 2013 (Annexure-2) passed by learned Civil Judge (Junior Division), Boudh in C.S. No. 50 of 2012 is under challenge in this writ petition, whereby a petition filed by the Petitioner under Order XI Rule 14 CPC to call for two documents from the Baghiapada Outpost and Boudh Police Station, has been rejected.

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3. Mr. Mishra, learned Senior Advocate submits that the Defendant is the Petitioner in this writ petition. The suit has been filed by the Opposite Party for declaration of right, title and interest over Schedule-B property as well as for recovery of possession. He has further prayed for a declaration that R.S.D. bearing No.1089 dated 18th June, 2001 is void. After closure of the Plaintiff's evidence, an application under Order XI Rule 14 CPC was filed to call for the original agreement dated 1st April, 2011 from the A.S.I., Baghiapada Outpost and original agreement dated 25th July, 2011 from the Boudh Police Station. It is submitted that the sale deed has been acted upon and the Defendant is in possession of the suit property pursuant to the sale deed executed in his favour by the Plaintiff. When the Plaintiff created disturbance in peaceful possession of the Defendant, the matter was intimated to the Baghiapada Outpost. An agreement was also executed between the parties before the A.S.I., Baghiapada Police Station on 1st April, 2011. Likewise, another agreement was also executed before the IIC, Boudh Police Station on 25th July, 2011 between the parties to maintain peace and tranquility. It is also specifically averred in the written statement that in order to resolve the dispute, both the parties went to Baghiapada Outpost and subsequently to Boudh Police Station and agreed to maintain peace and tranquility. For identification of their respective land, the same was demarcated by the Amin. But, the Plaintiff without respecting the same has filed the suit with false allegations. In order to establish that the Registered Sale Deed has been acted upon, the aforesaid two

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documents are necessary to be called for, which will throw light for just adjudication of the suit. Learned trial Court rejected the application observing that the document sought to be called for are not admissible in evidence.

4. Mr. Mishra, learned Senior Advocate relied upon the case of Janakiballav Patnaik -v- Bennett Coleman and Co. Ltd. and others, reported in 1988 (I) OLR 427, wherein it is held that a document may not be admissible, but the said document may be called for at the discretion of the Court, which would throw light on the subject matter of dispute. The nomenclature of the petition filed under Order XI Rule 14 CPC under Annexure-1 may not be correct. It is indeed a petition under Order XVI Rules 6 and 7 read with 14 CPC, which gives ample power to the Court to summon a person to produce document or to lead evidence. These aspects were not taken into consideration while adjudicating the petition under Annexure-1. Hence, he prays for setting aside the impugned order under Annexure-2 and to direct learned trial Court to summon the Competent Officers of Baghiapada Outpost and Boudh Police Station to produce the aforesaid documents.

5. Mr. Mishra, learned counsel for the Plaintiff-Opposite Party vehemently objects to the same. It is his submission that there is no mention about the aforesaid documents in the written statement filed by the Defendant. The list of documents relied upon by the Defendant also does not reflect those documents. It is further submitted that during course of hearing, Mr. Mishra, learned Senior Advocate appearing for the Petitioner verily

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relied upon Paragraph-13 of the written statement, which reads as under;

"13. That, the astute and clever plaintiff after execution of the sale deed has taken a hazardous plea that the document is impersonated. Both parties came to police station at Baghiapada and subsequently to Boudh and agreed to maintain peace and tranquility and also to identify their respective land by Amin and accordingly the defendant demarcated the land through private Amin in which the plaintiff deliberately did not participate but after the measurement his wife started hurling abusive words to the defendant."

The averment, as aforesaid does not reflect that any agreement was indeed executed between the parties either in the Baghiapada Outpost or in the Boudh Police Station. It is his submission that at Paragraph-4 of the petition under Order XI Rule 14 CPC, the Defendant has categorically stated as under;

"4. That, during the examination of the defendant, the Xerox copies obtained by the defendant from the police were not traceable and after a meticulous search it were found today."

6. It is contended therein that they found the copy of those documents on the date of filing of the petition under Annexure- 1, i.e., on 9th July, 2013. But, the copies of those documents were not filed before the Court. Admittedly the documents are not admissible in evidence, as rightly held by learned trial Court.

7. Mr. Mishra, learned counsel for the Opposite Party also relied upon the case of Kshitish Chandra Mohanty -v- Umesh Chandra Behera and others, reported in 2016 SCC OnLine Ori 48, wherein at Paragraph-5, it is held as under:

"7. From perusal of the averments made in the written statement, this Court does not find any whisper on the material information as well as the documents called for

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in the application by the plaintiff either in the plaint or in the written statement. There is also no issue involving the documents sought for and the material information.

8.Further, looking to the position of the suit that the evidence from both the sides are already closed, this Court observes that calling for documents or material information after closure of evidence will have no relevancy as neither the information nor the documents will have any bearing in the ultimate decision of the suit. Particularly, keeping in view that there is totally absence of pleading either in the plaint or in the written statement involving the issues raised herein the request also becomes redundant."

8. Since a new story is intended to be introduced by the Defendant by filing a petition under Annexure-1, the same should not be entertained at such a belated stage. It is also his submission that the Defendant has already examined himself in the suit. But, he has not spelt out a single word about those documents in his evidence. He, therefore, submits that the impugned order under Annexure-2 warrants no interference.

9. Heard learned counsel for the parties. Perused the materials on record and case laws cited.

10. It is rightly submitted by Mr. Mishra, learned Senior Advocate that the nomenclature of the petition under Annexure- 1 is not correct, but the same cannot be stand as a bar to grant relief to the Defendant-Petitioner, if he is otherwise entitle to. Law is well settled that nomenclature of a petition is not the determining factor for consideration of the same. It is the subject matter of dispute and relief sought for, which should be taken into consideration for adjudication of the petition. In the

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petition under Annexure-1, the Defendant has sought to call for the following documents:

"Documents to be called for

(i) Original agreement dt.1.4.2011 mutually executed between the parties from the A.S.I., Baghiapada Outpost.

(ii) Original agreement dt.25.7.2011 mutually executed between the parties from Boudh P.S."

Those documents were to be called for from the Baghiapada Outpost and Boudh Police Station.

11. On perusal of the copy of the written statement filed by the learned counsel for the Petitioner in course of hearing, this Court finds that there is no mention about those documents in the written statement. Mr. Mishra, learned Senior Advocate refers to Paragraph-13 of the written statement stating that reference to the aforesaid documents is available in the written statement. But, on a close reading of Paragraph-13 of the written statement, it does not appear that any document/agreement was ever executed by the parties either before the Baghiapada Outpost or in the Boudh Police Station. It only states that both the parties agreed to maintain peace and tranquility before the Police and pursuant to the agreement their respective land were demarcated.

12. As submitted by Mr. Mishra, learned counsel for the Opposite Party in Paragraph-4 of the petition under Annexure-1, the Defendant has stated that after thorough search, he found the copy of the document on the date of filing of the petition, i.e., 9th July, 2013. But, copies of those documents were not produced along with the petition under Annexure-1. Although it is

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submitted by Mr. Mishra, learned Senior Advocate appearing for the Petitioner that in the objection, the Plaintiff has never disputed the existence of those documents, but that does not take away the burden of the Defendant-Petitioner to establish that those documents are, in fact, in existence. The suit has been filed for declaration of right, title, interest and to declare the sale deed executed by the Plaintiff in favour of the Defendant to be void. Thus, the burden is on the Plaintiff to prove his case.

13. Since there is no material available on record to come to a conclusion that the documents as alleged were ever executed between the parties, this Court is of the considered opinion that learned trial Court has committed no error in rejecting the petition under Annexure-1. Thus, the case law cited by Mr. Mishra, learned Senior Advocate appearing for the Petitioner in Janakiballav Patnaik (supra) is of no assistance to him in the instant case, as admissibility of the document can only be considered, if at all, the documents are in existence.

14. Considering the submission made by learned counsel for the parties, this Court finds that learned trial Court has committed no error in passing the impugned order under Annexure-2. Hence, the writ petition being devoid of any merit stands dismissed.

15. Since the suit is of the year, 2012, learned trial Court should make its best endeavour to see that it is disposed of at the earliest without granting unnecessary/long adjournment to any of the parties.

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16. Interim order dated 16th August, 2013 passed in Misc. Case No.16733 of 2013 stands vacated.

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

(K.R. Mohapatra) Judge

Orissa High Court, Cuttack, Dated 10th November, 2023/Madhu