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2009 DIGILAW 71 (ORI)

Mohammed Nasir v. Jadab Kumar Sahu

2009-01-29

B.N.MAHAPATRA, B.S.CHAUHAN

body2009
ORDER 29.01.2009 — This writ petition has been filed challenging the order dated 25.11.1997 passed by the learned Civil Judge (Junior Divi¬sion), Bhadrak (Annexure-1) by which the application filed by the writ petitioners for their transposition as plaintiff as the original plaintiff abandoned the suit by filing application for withdrawal which had been allowed and against the order of the revisional Court dated 15.4.2004. The facts and circumstances giving rise to this case are that T.S. No. 12 of 1997 was instituted on 10.1.1997 by one Nabakishore Sahu in the Court of learned Civil Judge (Junior Division), Bhadrak against the present writ petitioners seeking relief of permanent injunction and not to permit them to raise any construction over the suit property, i.e., mouza Kuans Khata No.759, plot No.1445. Subsequently as an interim order had been passed by the competent authority under the OPLE Act, the plain¬tiff filed an application on 25.11.1997 before the trial Court to withdraw the suit. The trial Court allowed the plaintiff to withdraw the suit. However, it rejected the application of the present petitioners for transposing them as plaintiffs. Being aggrieved, Civil Revision No.49 of 1997 was preferred by the present petitioners which has also been rejected. Hence this petition. Mr. Misra, learned counsel for the petitioners has submitted that the Civil Court as well as the revisional Court has erred in rejecting the application for transposition of the petitioners-defendants in the original suit once the original plaintiff was permitted to withdraw his suit for the simple reason that the petitioners-defendants were claiming relief against the State of Orissa which was a co-defendant along with petitioners. Both the trial Court and the revisional Court dismissed the application on the ground that transposition is permissible in view of the provisions of Order 23, Rule 1-A, CPC, but no application had ever been filed by these petitioners-defendants under Order 1, Rule 10 C.P.C. It is submitted by Mr. Mishra that the only application which could have been filed is one under Order 1, Rule 10, CPC and the application filed for transposition should have been treated as filed under Order 1, Rule 10, CPC. Therefore, both the orders are liable to be set aside. On the contrary it has been submitted by Mr. Chatterjee, learned counsel for the private opposite parties and Mr. Therefore, both the orders are liable to be set aside. On the contrary it has been submitted by Mr. Chatterjee, learned counsel for the private opposite parties and Mr. Swain, learned Additional Government Advocate that the application was totally misconceived for the simple reason that by application of the provisions of Section 16 of the OPLE Act the civil suit is barred. More so, the transposition was not permissible because the petitioner could not have claimed relief of injunction with¬out claiming the declaration of title. More so, petitioners could not be permitted to move any application for amendment of the plaint as it could have changed the nature of the suit itself. Petitioners could not file the suit against the State Government without serving notice under Section 80, CPC. Be that as it may, Section 16 of the OPLE Act bars the jurisdiction of the Civil Court, therefore, had the transposition been allowed, at a later stage the suit was bound to be dismissed as not maintainable. More so, if the proceedings under the OPLE Act had been initiated against the present petitioners and the order of eviction had been passed, and they have lost even before the appellate and revisional authority and also before this Court, we are not inclined to entertain the writ petition. The petition is accordingly dismissed. Petition dismissed.