GOPAL KRISHNA BADU MOHAPATRA v. GIRISH CHANDRA NAIK
2000-03-07
B.P.DAS, P.C.NAIK
body2000
DigiLaw.ai
JUDGMENT : B.P. Das, J. - This writ petition arises out of an order passed by the District Judge, Puri, in C. R. No. 56 of 1999 confirming the order of the Addl. Civil Judge (Senior Division), Puri, in O. S No. 90/211 of 1981/1977-1 in rejecting three petitions filed by the petitioners, namely, (1) to call for an unregistered will from the Court of the Civil Judge (S. D.). Puri, which has been kept in a sealed cover in the office of the District Judge, Puri, in Probate Case No. 1/85, re-numbered as O. S. No. 116/88; (2) to direct the Sub-Registrar, Puri, to cause production of the registered sale deeds bearing No. 4697 dated 18-11-1955 and No. 4698 dated 18-11-1973 and (3) to direct the plaintiffs to produce the registered sale deed bearing No 2578 dated 29-6-1923 executed by Rani Hemanta Kumari Devi, which is in possession of the plaintiffs. 2. The trial court after hearing parties rejected the first petition to call for the will on the ground that the same has no bearing on the subject-matter of the suit which is a suit for eviction of the first defendant from the room standing on the disputed property, The second petition was rejected with the finding that the parties have not relied upon the registered deeds anywhere in the pleadings and defendant Nos. 3 to 6 i. e., the present petitioners, are neither clear in their petition as to how the deeds are relevant to the present suit nor have they filed copies of the sale deeds to show that they are in any way necessary for the adjudication of the suit. The third petition filed by the petitioners to direct the plaintiffs, i. e., present O. p Nos. 1 and 2, to produce the registered sale deed dated 29-6-1923 on the ground defendant Nos. 3 to 6, i. e. the present petitioners, being aware of the aforesaid registered sale deed should have filed the certified copy of the same before the court to satisfy that the same is relevant and necessary for the suit. The trial court also observed that unless they satisfy the court by production of the certified copy, it cannot be held that the said registered sale deed is in any way relevant and material to the point at issue in the suit. 3.
The trial court also observed that unless they satisfy the court by production of the certified copy, it cannot be held that the said registered sale deed is in any way relevant and material to the point at issue in the suit. 3. Against the rejection of the aforesaid three petitions, the present petitioners moved the learned District Judge in C, R. No. 56 of 1999 wherein the revisional court having gone through the records held that the revisional power u/s 115, C. P. C. is available in respect of orders which suffer from jurisdictional error and not for any simple error of fact and law. The order rejecting the petitions of the petitioners as per the revisional court does not amount to a 'case decided' and the order with regard to calling for a document is an interlocutory older in the progress of the case and not order which can be said to be deciding right or obligations of the parties. Ultimately the revisional court came to the conclusion that "there is no illegality or irregularity on the face of the record in passing the impugned order and held that the order passed by the trial court is correct and the same does not suffer from any irregularity or jurisdictional error. Accordingly, the learned District Judge confirmed the order of the trial court and rejected the revision application. 4. In this writ petition, instead of going into the entire facts of the case, we have to see whether the impugned order rejecting the three petitions will come within the meaning of 'case decided' and whether there is any irregularity in the order including jurisdictional error which can be interfered in extraordinary jurisdiction of this Court. 5. So far as the application to call for the will is concerned, the fact remains that the will is an unregistered one and kept in a sealed cover and the same is yet to be probated. It is pertinent to mention here that by virtue of the said will the petitioners filed an application before the trial court under Order 1, Rule 10, C. P. C. praying to be impleaded as parties which was rejected by the trial court and the said order was challenged in C. R. No. 141 of 1985.
It is pertinent to mention here that by virtue of the said will the petitioners filed an application before the trial court under Order 1, Rule 10, C. P. C. praying to be impleaded as parties which was rejected by the trial court and the said order was challenged in C. R. No. 141 of 1985. From the photo-copy of the order so filed by the opposite parties it reveals that the aforesaid revision was disposed of as under ; "The grievance of the petitioners is that they have got a will in their favour in respect of the disputed property and they wanted to be added as parties which was not allowed on the ground that they do not acquire any right as the will has not been probated. In view of this, I do not see any reason to admit this revision. However, it is made clear that if during the pendency of the suit the will is probated, the petitions may renew their prayer to be added as parties which may be duly considered on its proper perspective. xx xx xx " It is needless to say that the will is yet to be probated, though the revisional order was passed on 15-3-1985. That apart, as per the trial court, the present petitioners, i.e., defendant Nos. 3 to 6, who were later on impleaded as defendants by virtue of the order of this Court passed in O.J.C. No. 2205 of 1996, never relied upon the will for the production of which petition has been filed. That apart, in our opinion, the will before it is probated and before its genuinesess or otherwise is established by the probate court, cannot be relied upon in another civil proceeding basing on which a judgment will be passed. It will rather be improper to call for the will which is yet to be probated and its genuineness is yet to be decided by the competent court. The suit has been filed in the year 1977 and this Court while disposing of O. J. C, No. 2205 of 1996 in its order dated 5-3-1999 observed that the trial court would do well to dispose of the proceedings within four months.
The suit has been filed in the year 1977 and this Court while disposing of O. J. C, No. 2205 of 1996 in its order dated 5-3-1999 observed that the trial court would do well to dispose of the proceedings within four months. It is stated by the learned counsel for the opposite parties that before commencement of evidence; the present petitioners filed the aforesaid petition and, therefore, the suit could not be disposed of within the target fixed by this Court. 6. So far as the order rejecting other two petitions filed for calling for registered sale deeds and production of another sale deed from the custody of the plaintiffs is concerned, we find that there is no irregularity or error in the decision of the trial court as well as the revisional court. If the petitioners were aware of the registered sale deeds, they could have filed the certified copies thereof and could have made out a case that the registered sale deeds are relevant and necessary for the adjudication of the point at issue. The deed being registered ones, there was no impediment on the part of the petitioners to get the certified copies and produce the same before the court. 7. In our considered opinion, there is absolutely no irregularity in the order passed by the trial court as well as the revisional court and as the petitions so rejected do not come within the meaning of 'case decided', interference by this Court under Article 227 of the Constitution of India is not warranted. 8. The writ petition merits no consideration and is accordingly dismissed. P.C. Naik, J. 9. I agree. 10. Petition dismissed. Final Result : Dismissed