Orissa High Court
Gourav Naik @ Gourav Nayak vs Rama Majhi & Others .... Opposite ... on 21 April, 2025
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No.467 of 2025
Gourav Naik @ Gourav Nayak .... Petitioner
Mr. R.K. Sahoo, Advocate
-Versus-
Rama Majhi & others .... Opposite Parties
None
CORAM:
MR. JUSTICE R.K. PATTANAIK
ORDER
21.04.2025
Order No.
01. 1. Heard Mr. Sahoo, learned counsel for the petitioner.
2. No notices are issued to the opposite parties as the matter is
disposed of at the stage of admission.
3. Instant petition is filed by the petitioner challenging the
correctness of the impugned order dated 30th January, 2025 passed
in connection with C.M.A. No.26 of 2022 as at Annexure-1 by
learned District Judge, Bolangir on the grounds stated therein.
4. Mr. Sahoo, learned counsel for the petitioner submits that
the petitioner as the sole defendant filed the W.S.-cum- Counter
Claim in the suit and in so far as the suit instituted against him, it
was dismissed. The further submission is that the counter claim was
allowed by learned Court below, as against which, the opposite
parties filed an appeal before learned Court below in R.F.A. No.38
of 2017. It is further submitted by Mr. Sahoo, learned counsel that
an objection as per Annexure-5 was filed challenging the
maintainability of the appeal in absence of a separate appeal against
the decree vis-à-vis the counter claim, however, it was followed by
the impugned order i.e. Annexure-1 for considering such plea at the
time of disposal of the appeal filed against the dismissal of the suit.
Mr. Sahoo, learned counsel claims that a decisions of this Court in
Smt. Rama Deo Vrs. State of Orissa and others 2019 (1) CLR 674
and the Apex Court in Rajni Rani and another Vrs. Khairati Lal and
others were referred to but it has not been discussed by the learned
Court below and hence, therefore, the impugned order i.e.
Annexure-1 is liable to be set aside.
5. A copy of the W.S. is at Annexure-2 filed by the petitioner.
In fact, the suit and the counter claim have been disposed of by a
judgment dated 30th September, 2015 in C.S. No.68 of 2015 by the
Court of learned Civil Judge (Jr. Division), Bolangir. In fact, the suit
of the opposite parties was dismissed, whereas, the counter claim of
the petitioner was allowed. As against such dismissal of the suit, the
opposite parties filed the appeal before the learned Court below.
The petitioner opposing the maintainability of the appeal in absence
of a separate appeal against the decree of counter claim filed an
application as per Annexure-4 dated 14th November, 2024 and
upon receiving the objection dated 8th January, 2025 as at
Annexure-5, the impugned order i.e. Annexure-1 was passed to
consider such plea at a later stage. Since it is claimed that the
citations were pressed in to service and it was not taken cognizance
of by the learned Court below and the fact that there was no
separate appeal against the decree vis-à-vis the counter claim,
recording the submission of Mr. Sahoo, learned counsel for the
petitioner that the law demands such an appeal to be filed
otherwise it would be a res judicata, the Court is of the view that
the impugned order as at Annexure-1 is to be set aside with a
direction to reconsider such plea, discussing the citations referred to
hereinabove. In fact, such is the view of the Court for the reason
that the impugned order as at Annexure-1 does not reveal any such
discussion of the case laws cited from the side of the petitioner. Mr.
Sahoo, learned counsel vouchsafes filing of the citations before the
learned Court below and in support of such claim, he refers to
acertified copy of the memo filed by the petitioner before learned
court below. So therefore, the conclusion is that a fresh decision is
required to be taken on Annexure-4 by learned Court below with
regard to maintainability of the appeal filed by the opposite parties
in absence of a separate appeal against the decree of counter claim.
6. Accordingly, it is ordered.
7. In the result, the CMP stands allowed. As a necessary
corollary, the impugned order i.e. Annexure-1 is hereby set aside
with a direction to learned District Judge, Bolangir to consider
Annexure-4 in connection with R.F.A. No.38 of 2017 with reference
to the citations referred to hereinbefore and thereafter, to pass
necessary order as per and in accordance with law disposing it of at
the earliest preferably within a period of six weeks from the date of
receipt of a copy of this order.
8. In the circumstances, however, there is no order as to costs.
9. Urgent certified copy of this order be issued as per rules.
(R.K. Pattanaik)
Signature NotBalaram
Verified Judge
Digitally Signed
Signed by: BALARAM BEHERA
Reason: Authentication
Date: 22-Apr-2025 13:09:47
