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2007 DIGILAW 456 (ORI)

Geeta Patra v. Birakishore Mohapatrav

2007-06-20

P.K.TRIPATHY

body2007
JUDGMENT Petitioner-husband filed Title Suit No.44 of 1993 in the Court of Subordinate Judge (Civil Judge, Senior Division) Puri, seeking the relief of specific performance of contract by defend¬ants (two in numbers). After the suit was transferred to the Court of Addl. Civil Judge (Senior Division), Puri, it has been renumbered as T.S. Case No.143 of 1997 (i.e. Title Suit No.44/143 of 1993-97). 2. According to the petitioner suit land is part of Balu Khand Khasmal in Puri township and late Ajit Kumar Mitra, father of Manojit Kumar Mitra (defendant No.2) and late Ranjit Kumar Mitra, father of Ranjan Kumar Mitra (defendant No.3) were the lessee for a period of 30 years commencing from 19.08.1939 as per the lease deed dated 29.1.1940. When application for renewal of the lease was pending, some other litigations came up and to overcome the same above named Ajit Mitra and Ranjan Mitra entered into agreement with plaintiff on 31.7.1981, inter alia, as the terms and conditions that they would sell the suit property to the plaintiff for a consideration of Rs.1,00,000/- (rupees one lakh) and in furtherance thereof received an advance of Rs.10,000/- (rupees ten thousand) and necessary document would be executed after renewal of the lease and on obtaining permission from the Collector for sale and further that plaintiff would take care of all litigations including pending disputes raised against the title of the aforesaid two persons by any other person. During pendency of the renewal application Ajit Kumar Mitra died and in his place Manojit Kumar Mitra (defendant No.2) was substi¬tuted and the renewal application was again moved. After order of renewal of the lease, plaintiff wrote to the defendants on 15.10.1991 to take steps for seeking permission of the Collector to transfer the property in favour of the plaintiff. When the defendants did not respond plaintiff instituted the suit in the year 1993 for specific performance of contract. Petitioner fur¬ther stated that opposite party No.1,viz., Birakishore Mohapatra filed application to be added as a defendant in the title suit on the ground that he purchased a portion of the suit land (to the extent of the share of the vendor) from Gita Rani Mitra, widow of Ajit Kumar Mitra. Petitioner also stated that plaintiff resisted that application, inter alia, on the ground of ‘Lis Pendence’ being hit by Section 52 of the Transfer of Property Act, 1882 (in short the “T.P.Act”). Petitioner also stated that plaintiff resisted that application, inter alia, on the ground of ‘Lis Pendence’ being hit by Section 52 of the Transfer of Property Act, 1882 (in short the “T.P.Act”). 3. Learned Addl. Civil Judge, Puri on 3.11.1998 allowed the application under Order-1 Rule-10 CPC on the ground that Gita Rani Mitra is not a party to the title suit and therefore provi¬sion under Section 52 of the T.P. Act is not applicable and that said Gita Rani having succeeded to 1/3 interest of her husband’s estate and out of that Bira Kishore Mohapatra having purchased suit land, therefore, he should be allowed to be added as defend¬ant No.3. Plaintiff challenged that order in Civil Revision No.77 of 1998 and on being transferred from the Court of District Judge, Puri, the same was registered as Civil Revision No.12/77 of 2002/1998 in the Court of Ad hoc Addl. District Judge (1st Track Court). More or less, on the similar analysis of the facts and provision of law learned Ad hoc Addl. Sessions Judge recorded concurrent finding and at the same time observed against main¬tainability of civil revision against interlocutory order in view of amendment of Section 115 CPC in the year 2002. Plaintiff/petitioner died during pendency of civil revision and present petitioner was substituted in his place. 4. Both the parties advanced argument in support of their respective stand and reiterated the same contention, which has been discussed and considered by the Courts below. 5. On Perusal of the provision of law under Order-1 Rule-3 read with Order-1 Rule-10 CPC and Sections 10 to 13 and 15 of the Specific Relief Act, 1963 (in short the Act, 1963) and the afore¬said factual statement, this Court finds that the jurisdiction vested in the Courts below was not properly exercised by taking into account the above noted relevant provision of law but on consideration of irrelevant provision the impugned decision was taken. 6. The fact situation stated by the petitioner and not disputed by the opposite party does not indicate as to in whose favour the lease was renewed/granted and whether that includes name of the husband of Gita Rani. Apart from that, who are the persons against whom the agreement for sale, i.e, the specific performance of the contract is enforceable in accordance with Section 15 of the Act, 1963 was not considered. Apart from that, who are the persons against whom the agreement for sale, i.e, the specific performance of the contract is enforceable in accordance with Section 15 of the Act, 1963 was not considered. On perusal of documents on record and taking a prima facie view, if it would be found that Gita Rani should have been added as a defendant, be it as necessary or proper party in terms of Order 1 Rule 3 CPC, then the person claiming right, title and interest over a part of the suit property would step into her share. In that case it is also required to be considered by the Court whether Gita Rani should also be added as a defendant. While considering that aspect the Court is also required to consider the relevant provision from Sections 10 to 13 and 15 of the Act, 1963. Order 1 Rule 10(2) CPC vests power and jurisdiction to determine such aspects and to pass appropriate order. Application of Birakishore Mohapatra should have been considered in that manner to arrive at a proper conclusion. 7. When the civil revision was heard, learned Ad hoc Addl. District Judge should have refrained from examining legality and propriety of the order of the trial Court, when he was of the opinion that the civil revision was not maintainable. For the reasons indicated above impugned orders are quashed and learned Addl. Civil Judge (Sr. Division), Puri is directed to consider the application of Birakishore Mohapatra afresh. He should bear in mind that this Court has expressed no opinion on the merit of the case of either of the parties and he is free to take a decision in accordance with law. Keeping in view oldness of the litigation, he is directed to dispose of that application within two months from the date of receipt of copy of this order. The Writ Petition is accordingly allowed. No cost. Petition allowed.