Orissa High Court
Hiralal Patel vs Kamal Kumar Agrawal .... Opp. Party on 1 July, 2024
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
Signature Not Verified
Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Designation: AR-cum-Senior Secretary
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 02-Jul-2024 17:57:27
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 431 of 2024
Hiralal Patel .... Petitioner
Mr. Amit Prasad Bose, Advocate
-versus-
Kamal Kumar Agrawal .... Opp. Party
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 01.07.2024
1. 1. This matter is taken up through hybrid mode.
2. Order dated 11th April, 2024 (Annexure-1) passed by
learned Senior Civil Judge (LR & LTV), Bargarh in CS No.134
of 2005 is under challenge in this CMP, whereby an application
filed by the Petitioner to file additional written statement to the
counter-claim filed by the Defendant/Opposite Party, has been
rejected.
3. Mr. Bose, learned counsel for the Petitioner submits that
CS No.134 of 2005 was originally filed by one Prabhabati
Padhan for eviction of the Defendant. The Defendant claimed
the suit property by virtue of a sale deed. Thus, the Defendant
also filed counter-claim. The suit was decreed in favour of the
Plaintiff-Prabhabati Padhan and the counter-claim was
dismissed. Assailing the same, Defendant-Kamal Kumar
Agrawal filed two appeals bearing RFA Nos.17 and 18 of 2013,
which were heard analogously and were disposed of by a
common judgment dated 31st July, 2015 with the following
order:-
"7. In the result, the appeals under Section 96 read
with Order XLI Rule 1 of the Code, at the behest of
appellant stand allowed against the respondent No.1 on
Signed by: SASANKA SEKHAR SATAPATHY
Designation: AR-cum-Senior Secretary
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 02-Jul-2024 17:57:27
// 2 //
contest and others without contest. As a necessary
corollary, the impugned judgment and decree dated
05.04.2013 promulgated in Civil Suit No.134 of 2005 by
the learned Civil Judge (Senior Division), Bargarh is
hereby set aside. Consequentially, it is directed that the
learned Court below shall appoint and depute a Civil
Court Commissioner to ascertain whether the suit
schedule 'A' land is a part and parcel of H.S. Plot
No.106 and correspondingly of Ac.0.42 decimal sold
under Ext.A and on the receipt of record, considering the
material evidence on record and without being
influenced by the observations of the Court in appeal
shall dispose of the suit as well as cross suit covering all
the issues on merit and in accordance with law. In the
circumstances, however, parties to bear respective costs
throughout."
Petitioner is the lis pendens purchaser. During pendency of the
appeals, he filed an application to be impleaded as a party. The
said application was allowed and the Petitioner was impleaded
as a party to the appeals. After remand, learned trial Court
directed for measurement of the land by a Survey knowing
Commissioner, as directed by learned appellate Court. When
the matter was so pending, the Plaintiff died. The Petitioner
being the lis pendens purchaser, filed an application under
Order I Rule 10(2) CPC to be transposed as Plaintiff, which was
allowed. On being transposed, the Petitioner filed an application
to file an additional written statement to the counter-claim. The
said petition was rejected by the impugned order under
Annexure-1. Hence, this CMP has been filed.
4. It is submitted by Mr. Bose, learned counsel for the
Petitioner that there was no legal impediment to allow the
Petitioner to file an additional written statement to the counter-
claim. The appellate Court remanded the matter after setting
aside the judgment in CS No.134 of 2005 and directed learned
Signed by: SASANKA SEKHAR SATAPATHY
Designation: AR-cum-Senior Secretary
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 02-Jul-2024 17:57:27
// 3 //
Civil Judge (Senior Division), Bargarh to appoint and depute a
Civil Court Commissioner to ascertain whether the suit
Schedule 'A' land is a part and parcel of HS Plot No.106 and
correspondingly of Ac.0.42 decimal showed under Ext. 'A' and
on receipt of the report shall dispose of the suit taking into
consideration the report as well as material evidence on record
without being influenced by the observation made by the Court
made in the judgment of the appeals. In view of the fact that the
Petitioner is a purchaser of the selfsame land by virtue of a sale
deed from the true owner, rival claims of the Petitioner vis-à-vis
the Defendant with regard to right, title and interest over the suit
property, is to be considered by learned trial Court for just
adjudication of the case. Thus, the additional written statement
to the counter-claim was necessary to be filed by the present
Petitioner. Unless the Petitioner is permitted to file the
additional written statement to the counter-claim then it would
be difficult on his part to resist the claim of the Defendant
claiming right, title and interest over the suit property by virtue
of sale deed under Ext. 'A'. This aspect was not taken into
consideration by learned trial Court while adjudicating the
matter. Hence, this CMP has been filed for the aforesaid relief.
4. Considering the submission of learned counsel for the
Petitioner and on perusal of the record more particularly the
impugned order, it appears that the application for filing of the
additional written statement was filed at the stage when the suit
is posted for argument. Further, it appears that the Petitioner has
been transposed as Plaintiff on her death. Thus, he stepped into
Signed by: SASANKA SEKHAR SATAPATHY
Designation: AR-cum-Senior Secretary
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 02-Jul-2024 17:57:27
// 4 //
the shoes of the Plaintiff and cannot take a different stand or
expand the scope of adjudication of the suit or counter-claim by
filing an additional written statement making an independent
claim. It is true that the Petitioner was impleaded as a party to
the suit in exercise of power under Order I Rule 10 CPC, but he
was transposed as Plaintiff in exercise of Order I Rule 19(2)
CPC. Thus, he is precluded from taking a different stand than
the Plaintiff in her written statement to the counter-claim. She is
precluded from filing any additional written statement more
particularly at the time of argument of the suit making an
independent claim over the suit property. In that view of the
matter, this Court finds that learned trial Court has committed
no error in passing the impugned order under Annexure-1.
5. Accordingly, the CMP being devoid of any merit stands
dismissed.
(K.R. Mohapatra)
s.s.satapathy Judge
