Orissa High Court
Sarat Kumar Badajena vs Satyaban Chhotray And Others .... ... on 21 February, 2025
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No.850 of 2022
Sarat Kumar Badajena .... Petitioner
Mr. B. Tripathy, Advocate
-Versus-
Satyaban Chhotray and others .... Opposite Parties
Mr. P.K. Jena, Advocate for O.P. No.1
CORAM:
MR. JUSTICE R.K. PATTANAIK
ORDER
Order 21.02.2025
No.
03. 1. Heard Mr. Tripathy, learned counsel for the petitioner and
Mr. Jena, learned counsel for opposite party No.1.
2. No notices have been issued to opposite party Nos.2 and 3
earlier.
3. Instant petition is filed by the petitioner challenging the
impugned orders dated 10th August, 2022 under Annexure-7 passed
in connection with C.S. No.325 of 2018 by learned Civil Judge,
Senior Division, Bhubaneswar on the grounds stated therein.
4. Mr. Tripathy, learned counsel for the petitioner submits that
the petitioner should be allowed to file the WS in suit for partition.
It is submitted that WS is already filed on record and the same is
needed to be accepted by the learned court below for disposal of
the suit on merit but instead, it has resulted in passing the impugned
order i.e. Annexure-7.
5. Mr. Jena, learned counsel for opposite party No.1 submits
that with 19 months delay, the application to accept the WS was
filed by the petitioner, hence, it could not have been condoned by
learned court below and rightly, therefore, the application in that
behalf was rejected followed by Annexure-7. In support of such
contention, with a submission that illness of the petitioner has not
been duly explained, Mr. Jena, learned counsel cites a decision of
this Court in Laxmipriya Samantray Vrs. Sri Jagannath Jew, Bije
Jayabada, Jagatsinghpur 2019 (Supp.-II) OLR 536 to contend that
beyond the statutory period since the WS was filed, it was,
therefore, not accepted. In reply and response to the above, Mr.
Tripathy, learned counsel for the petitioner refers to a decision in
Bharat Kalra Vrs. Raj Kishan Chabra in Civil Appeal No.3788 of
2022 corresponding to SLP (C) No.63 of 2022 to contend that
interest of justice demands acceptance of WS, hence, it should be
directed.
6. In course of hearing, it is brought to the notice of the Court
that ex parte evidence has already been received with one witness
examined from the side of the plaintiff. Since such is the position,
the Court is of the view that the suit is for partition, the WS which is
already filed by the petitioner should be directed to be accepted by
the learned court below. The Court is of the further view that as the
suit is pending since 2018, a time line is required to be fixed for its
early disposal. In fact, in Bharat Kalra (supra), the Apex Court
referring to an earlier judgment in Kailash Vrs. Nankhu and others
(2005) 4 SCC 480 held and observed that the time limit for filing of
WS under Order 8 Rule 9 CPC is not mandatory. The legal position
discussed herein before and recording submission of learned counsel
for the respective parties, it is a fit case, where the WS of the
petitioner, should be directed to be accepted for a decision on
merit, however, with a cost imposed.
7. Accordingly, it is ordered.
8. In the result, the CMP stands allowed. As a necessary
corollary, the impugned order passed in C.S. No.325 of 2018 by
learned Civil Judge, Senior Division, Bhubaneswar is hereby set aside
upon payment of cost of Rs.2000/- payable to opposite party No.1
with a direction to accept the WS from the petitioner which is
already on record and thereafter, to proceed and to dispose of the
suit as per and in accordance with law as expeditiously as possible
preferably within a period of three months from the date of receipt
of a copy of this order.
9. Urgent certified copy of this order be issued as per rules.
(R.K. Pattanaik)
Judge
TUDU
