Orissa High Court
Lilima Patra vs Abinash Patra And Others .... Opp. ... on 24 March, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No.463 of 2019
Lilima Patra .... Petitioner(s)
Mr. A. K. Mohanty, Advocate
-versus-
Abinash Patra and others .... Opp. Party(s)
Mr. B. Baral, Advocate
CORAM: JUSTICE SIBO SANKAR MISHRA
ORDER
Order No. 24.03.2025
04. 1. Heard.
2. The petitioner is aggrieved by the order dated 20.02.2019
passed by the learned Civil Judge (Sr. Division), Banpur in C.S.
Case No.35 of 2015, whereby the application moved by the
petitioner under Section 10 of C.P.C. has been turned down. While
rejecting the application of the petitioner, the learned trial Court
inter alia observed as under:-
"Heard submission of both the sides, perused the case
record as well as the petitioner from which transpires
that the matter in issue of both the suit are different in
nature. The present suit is filed for partition whereas
the other suit is a Probate proceeding. Further the
parties in both the proceedings are different and also
both the parties are also not claim or litigating under
the said title. In the present suit the petitioner-
defendant No.2 appeared before the Court on dated
10.03.2017 but did not chose to file her W.S. The
other defendants have not yet appeared in the suit.
The defendant No.1 has not filed W.S. yet. Moreover,
neither the learned District Judge, Khurda nor the
Hon'ble High Court of Orissa has passed any order
to stay the further proceeding of the present suit.
Section 10 of the Code of the Civil Procedure reads
as follows:-
"No Court shall proceed with the trial of any
suit in which the matter in issue is also
directly and substantially in issue in a
previously instituted suit between the same
parties, or between parties under whom they
or any of them claim litigating under the
same title where such suit is pending in the
same or any other Court in India having
jurisdiction to grant the relief claimed, or in
any Court beyond the limits India of
established or continued by the Central
Government and having like jurisdiction, or
before the Supreme Court."
In order to vouch safe his contention, the learned
counsel for the petitioner-defendant No.2 relied one
judgment of the Hon'ble High Court of Orissa
reported in Charulata Panda and another versus
Upendra Kumar Mohapatra, 2017 (II) OLR-601. On
perusal of the said judgment, it is seen that the same
is quite different to the subject matter of present suit.
Considering the above facts and circumstances of
the case and Section 10 of the C.P.C., the petition
filed by the petitioner-defendant No.2 deserved no
merits stands rejected."
3. The petitioner moved an application seeking stay of the
proceeding in C.S. Case No.35 of 2015 (suit for partition) on the
ground that a probate petition being Probate (Test) Case No.9 of
2017 is already pending regarding one of the property included in
the schedule property in the partition suit.
4. Notice was issued to the opposite parties on 30.04.2019 in
the present petition and the further proceeding in C.S. No.35 of
2015 before the learned Civil Judge (Sr. Divn.), Banpur was stayed.
5. Learned counsel for the opposite parties has placed on
record the entire proceeding in the Probate (Test) Case No.09 of
2017 passed by the learned District Judge, Khurda, Bhubaneswar.
The proceeding sheet reveals that the Probate petition has now been
dismissed on 09.03.2022 by the learned District Judge, Khurda,
Bhubaneswar as the petitioner in the said petition had not taken any
step to cure the defects. The order dated 09.03.2022 passed by the
learned District Judge, Khurda, Bhubaneswar reads as under:-
"No step is taken by the petitioner and the
petitioner is absent on repeated calls. Defects are
not removed. The test case has not yet been
admitted. This is a test case of the year, 2017.
Hence, the present case is dismissed for default of
the petitioner.
6. Learned counsel for the opposite parties also submitted
that the said order of dismissal of probate test case has attained
finality as the petitioner has not taken any steps to restore the test
case. Since the probate test case has already been dismissed,
therefore, the application moved by the petitioner under Section 10
of the C.P.C., which has been turned down by the impugned order
dated 20.02.2019 is of no consequence.
7. In view of the aforementioned developments, the CMP has
become infructuous and disposed of. The C.S. Case No.35 of 2015
pending before learned Civil Judge (Sr. Divn.), Banpur is directed
to be proceeded in accordance with law.
(S.S. Mishra)
Judge
Swarna
Designation: Senior Stenographer
Location: High Court of Orissa
Date: 26-Mar-2025 19:17:38
