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2013 DIGILAW 147 (ORI)

Harihar Jena v. Sulochana Sahoo

2013-05-14

B.K.MISRA

body2013
JUDGMENT B.K. MISHRA, J. 1. This Writ Petition has been filed challenging the order of the Learned Civil Judge (Sr. Divin.) 1st Court, Cuttack dated 17.12.2011 in C.S. No. 492 of 2005 (Annexure-1), wherein the Learned Trial Court disallowed the five petitions filed for marking of certain documents deputation of a Commissioner to make local inspection of the suit plot as well as to answer interrogatories to implead one Sashibhusan Mohanty & also to call for the Register from the officer of Sub-Registrar. 2. I have heard the Learned Counsel for the respective parties in the matter. It is seen that the present Petitioner as Plaintiff had instituted a suit in the Court of the Learned Civil Judge (Sr.Divn.), 1st Court, Cuttack for declaration of his right, interest & possession over the suit properties descried in Schedule-F-1 of the plaint with an alternate prayer that if no title would be found in favour of the Plaintiff over the suit land to declare that the Plaintiff had acquired such title by way of adverse possession. It was also prayed for a declaration that the Defendants have no exclusive right, title, interest & possession over the Schedule F-1 property & to permanently restrain them from making any extension by way of construction of their building appertaining to Plot No. 44/2123 described in Schedule F-2 & from making any construction on any portion of the Schedule F-1 land appertaining to Plot No.44 which is used as passage only etc & for removal such obstruction by issuing mandatory injunction of the unauthorized extended western side roof of ground floor of the Defendants towards Plaintiffs eastern side i.e. Hal Plot. No. 44/123 & the temporary obstruction wall which exists on the said schedule F-1 premises etc. 3. Admittedly, after completion of the pleadings & statement of issues evidence was led from both sides & after closure of the evidence argument was heard. After closure of argument from the side of the Defendants argument from the side of the Plaintiff commenced. In the midst of the argument on 24.11.2011 the Petitioner-Plaintiff (herein after, referred as 'Plaintiff') filed a petition praying to mark some documents which were left out inadvertently. After closure of argument from the side of the Defendants argument from the side of the Plaintiff commenced. In the midst of the argument on 24.11.2011 the Petitioner-Plaintiff (herein after, referred as 'Plaintiff') filed a petition praying to mark some documents which were left out inadvertently. On 25.11.2011, another petition was filed under Order 26 Rule 9 of the C.P.C. for appointment of one Survey Knowing Commissioner to demarcate the constructions made over the suit plot as well as for measurement of the suit plot & for answering the interrogatories to be submitted by the Plaintiff. Another petition was filed under Order 1 Rule, 10 of the C.P.C. read with Section 151 of the C.P.C. on 28.11.2011 for impleading one Sashibhusan Mohanty, who is the son of late Gunanidhi Mohanty, as the Plaintiff & the predecessors-in-interest of the Defendants Late Rasananda Sahu had purchased Ac. 0.05 decimals of land out of Sabik Plot No. 336 on the strength of two registered sale deeds from Gunanidhi Mohanty. It was prayed that in view of the conduct of the Defendants & their dealing with the suit plot, the suit should be tried in presence of Sashibhusan Mohanty the son of late Gundaidhi Mohanty with a view to give finality to the lis. Similarly, on 2.5.2011 another petition was filed from the side of the Plaintiff to call for the Register of the sale deeds of the year 1982 from the office of the Sub-Registrar as the Defendants have interpolated & tampered with the description of their purchased land. Another petition was also filed on 2.12.2011 from the side of the Plaintiff to call for the records in C.S. No. 276 of 2004 from the Court of the Civil Judge (Jr. Divin.), 1st Court, Cuttack as objection was raised from the side of the Defendants that the plaint is not a public document & cannot be marked as exhibit. 4. The Defendants who are the Opp. Parties in this Writ Petition they filed their objection to the each such petition filed from the side of Plaintiff during period from 24.11.2011 till 2.12.2011 & after hearing the Counsel for the respective parties, the Learned Civil Judge (Sr. Div.) 1st Court, Cuttack passed the impugned order at Annexure-1. 5. I have heard the Learned Counsel appearing for the respective parties. Div.) 1st Court, Cuttack passed the impugned order at Annexure-1. 5. I have heard the Learned Counsel appearing for the respective parties. With regard to the prayer of the Petitioner for admitting some documents & marking them as exhibits, it is seen from the impugned order that the order passed in C.C. Case No. CDD-2/192 of 2010 dated 19.2.2011 of the Grievance Redressal Forum CESU, Cuttack, the order passed by the Tahasildar in Mutation Case No. 2846/1998 dated 5.3.1999 along with the sketch map, certified copy of Amin's report have already been marked as Exhibits 19.20, 20/a & 20/b from the side of the Plaintiffs. With regard to the xerox copy of the documents in Demarcation Case No.107/2002, xerox copy of the Amin's report submitted in the aforesaid Demarcation Case along with four coloured photographs have been marked as x, x/1, x/2, x/3, x/4 & x/5 for the purpose of identification. The copy of the plaint in C.S. No. 276/2004 of the Court of the Civil Judge. (Sr. Divn), 1st Court, Cuttack also has been marked as x/6 for the purpose of identification as the question of admissibility of those documents would be considered at the time of Judgment which has been reflected in the impugned order. Similarly, the copy of the Judgment in Representation Case No.OM(I) of 17 of 2011 passed by the Ombudsman, Orissa Electricity Regulatory commission, Bhubaneswar dated 5.5.2011 has also been marked as Ext. N from the side of the Defendants. There is absolutely no controversy on the aforesaid admitted facts from the side of the Plaintiff. 6. Coming to the prayer of the present Petitioner-Plaintiff for deputation of a Commissioner under Order, 26, Rule 9 of the C.P.C. read with Section 151 of the C.P.C., perusal of the case record shows that such a prayer was made by the present Petitioner who was Plaintiff in C.S. No. 429 of 2005 on 25.11.2011 & that too at a stage when after Defendants concluded their argument & argument was being heard from the side of the Plaintiff. Objection was filed to such a prayer of the Plaintiff from the side of the Defendants. Admittedly, the Plaintiff-Petitioner had prayed the Court for deputation of a Commissioner under Order, 26, Rule, 9 of the C.P.C. earlier which the Learned Court below after hearing both parties had rejected. Objection was filed to such a prayer of the Plaintiff from the side of the Defendants. Admittedly, the Plaintiff-Petitioner had prayed the Court for deputation of a Commissioner under Order, 26, Rule, 9 of the C.P.C. earlier which the Learned Court below after hearing both parties had rejected. Against that order of rejection the Plaintiff had filed a Writ Petition, which was registered as W.P.(C) No. 18493 of 2010 & on 19.9.2011 this Court dismissed the said Writ Petition as the same was withdrawn by the Writ Petitioner i.e. the Plaintiff in C.S. No. 492 of 2005. 7. Learned Counsel appearing for the Opp. Party-Defendants contended that when the earlier petition under Order 26, Rule 9 of the C.P.C. was filed on behalf of the Plaintiff, the Advocate who was representing the Plaintiff was changed & a new Counsel was engaged by the Plaintiff-Petitioner & thereafter only to prolong the trial & to cause delay in disposal of the suit that too at the fag end of the trial different petitions have been filed on behalf of the Plaintiff & such actions of the Petitioner-Plaintiff amounts to abuse of the process of the Court. That the Plaintiff-Petitioner had earlier approached the Court below for appointment of a Commissioner for local inspection of the suit plot & especially when the same was rejected, the Plaintiff had approached this Court in the writ jurisdiction & the said Writ Petition was dismissed being withdrawn by the Writ Petitioner are all admitted facts. Therefore when the earlier order passed by the Court below in refusing to exercise the discretionary power for appointment of Survey Knowing Commissioner under Order, 26, Rule, 9 of the C.P.C. has attained its finality the same cannot be re-agitated time & again. Certainly the power vested on the Court under Order, 26, Rule, 9 of the C.P.C. with regard to the appointment of the Commissioner is the discretion of the Court but at the same time the settled position of law is that the object of local investigation is not to collect evidence for a party & such discretionary power cannot be exercised to assist a party by appointing Commissioner for local investigation. Such discretion can be used by the Court where the Court finds difficult to pass an effective decree on the existing evidence. Such discretion can be used by the Court where the Court finds difficult to pass an effective decree on the existing evidence. When in the instant case the Court refused to exercise its jurisdiction under Order, 26, Rule, 9 of the C.P.C. & when adequate reasonings have been assigned by the Court below, I do not find any illegality in the said order. 8. Now coming to the next prayer of the Plaintiff-Petitioner for impleading one Sashibhusan Mohanty the sole successor in interest of late Gunanidhi Mohanty from whom the Plaintiff & the predecessor interest of the Defendants had purchased the, suit land, such a prayer was disallowed by the Court below in the impugned order after hearing the Counsel for the respective parties. 9. The Learned Counsel appearing for the Plaintiff-Petitioner contended that since after purchase of the land by the predecessors interest of the Defendant from late Gunanidhi Mohanty, who is the father of Sashibhusan Mohanty & when after purchase the Defendants have not taken any step to get the land mutated nor in correcting the record of right, the said document is a sharn transactions & therefore impletion of Sashibhusan Mohanty would be helpful to the Court in arriving at the just decision of the case. 10. I have perused the copy of the plaint in C.S. No. 492 of 2005 as well as the written statement & it is seen that the Plaintiff claims as the owner in possession of AO.05 decimals of land appertaining to Mutation Plot No. 44/2123 & it is his positive case that the Defendants have no right, title, interest or possession over the Schedule F-1 property but they are making all effort to make construction over the Plaintiffs property for which the relief of permanent injunction besides declaration of their right, title, interest & possession over the suit property etc. has been sought for. 11. After going through the pleading of the parties & upon hearing the Learned Counsel for the respective parties. I do not find any reason for impletion of Sashibhusan Mohanty as a party in C.S. No. 492 of 2005 & rightly the Court has disallowed such prayer. 12. has been sought for. 11. After going through the pleading of the parties & upon hearing the Learned Counsel for the respective parties. I do not find any reason for impletion of Sashibhusan Mohanty as a party in C.S. No. 492 of 2005 & rightly the Court has disallowed such prayer. 12. I do not find any reason to interfere with the impugned order at Annexue-1 while exercising the jurisdiction under Article 227 of the Constitution of India as there is nothing on record to show that by the impugned order grave injustice has been caused or there has been caused or there has been failure of justice or that the Court below assumed a Jurisdiction which he does not have or have failed to exercise the Jurisdiction which it has & such failure has occasioned in failure of justice. There is nothing on record to show that the Learned Trial Court over stepped his jurisdiction by passing the impugned order (Annexure-1). (96 (2003) CLT 625 (SC), Surya Dev Rai v. Ram Chander Rai & others). 13. Thus, from the aforesaid discussion the only irresistible conclusion that can be arrived is that, the impugned order at Annexure-1 calls for no interference by this Court. Accordingly, the Writ Petition being devoid of merit stands dismissed. Writ Petition dismissed.