Orissa High Court

Krushna Chandra Barik vs Hemalata Barik on 13 May, 2025

Author: Sashikanta Mishra

Bench: Sashikanta Mishra

                     IN THE HIGH COURT OF ORISSA AT CUTTACK

                                      RSA No.203 of 2023

            Krushna Chandra Barik                             ....          Appellant
                                                                     Represented by
                                                         Mr. P.C. Acharya, Advocate

                                            - Versus -

            Hemalata Barik                                     ....         Respondent
                                                                        Represented by
                                                                                 None

                  CORAM:
                       JUSTICE SASHIKANTA MISHRA

                                               ORDER

13.05.2025 Order No.

03. 1. This matter is taken up through hybrid mode. . 2. Defects are removed in the Court.

3. Heard Mr. P.C. Acharya, learned counsel for the appellant.

4. Perused the impugned judgment. Considering the submissions and the grounds raised, the second appeal is admitted on the following substantial questions of law.

"(i)Whether the suit for partition is maintainable when earlier suit filed by the same plaintiff has been dismissed for default and no restoration has been done and the properties are also same in the later suit?

(ii)Whether the provision of law as laid down in Order 9 Rule 9 shall be applicable for a suit for partition when the cause of action is same for the later suit?

(iii)Whether a subsequent fresh suit for partition is maintainable when an earlier suit for partition for the self-same properties and same cause of actions between self-same the plaintiff and defendant has been dismissed and the plaintiff has not taken steps for restoration of the previous suit?"

5. Issue notice to the respondents by registered post with AD, making it returnable within four weeks. Requisites be filed within three working days.

6. LCR be called for.

7. List this appeal for hearing in the week commencing 15th September, 2025.

(Sashikanta Mishra) Judge

Order No.

04.

1. This is an application for substitution of the sole appellant, who is said to have died on 26.04.2025 leaving behind his legal heirs as mentioned in the cause title of the petitioner.

2. It is stated that the right to sue survives in favour of the said LRs. In such view of the matter, the application is allowed. The LRs of the deceased-appellant be substituted as appellant Nos.1(a) to 1(b).

3. Consolidated cause title has already been filed in Court.

4. The I.A. is disposed of.

(Sashikanta Mishra) Judge

Order No.

05.

1. Operation of the impugned judgment and decree passed by the Trial Court as well as the First Appellate Court shall remain stayed till the next date.

2. Urgent certified copy of this order be granted in course of the day.

(Sashikanta Mishra) Judge

Puspanjali

Designation: Junior Stenographer

Location: High Court of Orissa, Cuttack. Date: 13-May-2025 19:09:24