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2014 DIGILAW 287 (ORI)

Raghunath Mudra v. Nilakantha Mudra

2014-04-23

S.PANDA

body2014
JUDGMENT S. PANDA, J. : This Writ Petition has been filed by the petitioner challenging the order dated 23.4.2013 passed by the learned Civil Judge (Junior Division), Puri in C.S. No.81 of 2004 allowing the application filed by defendant Nos.1 to 3 under Order 16, Rule 1 of C.P.C. to issue summon to one Radhamani Dibya @ Panda as a witness. 2.The brief facts of the case are that the petitioner as plaintiff filed C.S. No.81 of 2004 before the learned Civil Judge (Senior Division), Puri for declaration of his right, title and interest to perform ‘Murda Seva Pali’ in Lord Jagannath Temple, Puri as successor of one Jagannath Mudra and for declaration and for declaration that the order passed in Sadhibandha Case No.4 of 1995 by the Administrator, Shree Jagannath Temple, Puri is illegal, contrary to the evidence on record and inoperative. He also prayed for permanent injunction restraining defendant Nos.1 to 5 from preventing or obstructing the plaintiff from performing ‘Mudra Seva Pali’ as per his turn. The plaintiff claimed that he is the son of Jagannath Mudra. Being the successor he claimed for ten days of ‘Mudra Seva Pali’ in the temple of Lord Jagannath prior to filing of T.S. No.89/410 of 2006/1995 by one Nilakantha Mudra against Jaya Krushna Mudra claiming the entire ‘Mudra Seva Pali’ as Lokanath Mudra, the father of Nilakantha Mudra, was only rendering the said Sevapli excluding his two brothers Chinmanani, the father of Jayakrushna Mudra and Jagannath Mudra. It is stated that Jagannath Mudra died issueless as bachelor. As per Records of Right of Shree Jagannath Temple published in the year 1951-52 ‘Mudra Seva Pali’ is a ‘Sadhibandha Seva’. Unless a person ties the saree, he cannot do ‘Mudra Seva Pali’. Jagannath had not tied saree though Lokanath and Chintamani tied sarees. Lokanat was performing ‘Mudra Seva Pali’ and Chintamani was not performing the ‘Mudra Seva Pali’, as such the plaintiff has claimed the entire Sevapali as in both the suits the dispute relates to ‘Mudra Seva Pali’. Earlier in W.P.(C) No.16370 of 2005 disposed of on 21.7.2006 this Court directed for analogous hearing of C.S. No.81 of 2004 with T.S.No.89/410 of 1995/2002 as some of the parties as well as issues are common. Earlier in W.P.(C) No.16370 of 2005 disposed of on 21.7.2006 this Court directed for analogous hearing of C.S. No.81 of 2004 with T.S.No.89/410 of 1995/2002 as some of the parties as well as issues are common. This Court further directed that it is open to the trial Court, if it comes to a finding that the decision of subsequent suit will depend upon the result in the earlier suit, it will proceed with the trial of the suits one after another as the law is well settled that by consolidation it cannot be inferred that Court after consolidation ceases to have jurisdiction to dispose of the suit separately. 2.1The defendants are sons of Loknath, Jayakrushna and Chintamani. They have appeared in C.S. No.81 of 2004 and while traversing the pleadings of the plaintiff made in the plaint taken the similar stand that Jagannath Mudra died issueless leaving behind the defendants Nos.1 to 4 as his legal heirs. They have also specifically stated at paragraph-11 of the Written Statement that it is false to say that Jagannath Mudra was the father of plaintiff. Jagannath Mudra died as a bachelor and he has never adopted the plaintiff as his son. The plaintiff is an outsider to the family of the defendants. Therefore, it is false to say that the plaintiff stepped into the shoes of Jagannath are entitled to ‘Mudra Seva Pali’. They have also denied that as per Shree Jagannath Temple Records of Right the Patajoshi Mahapatra Sevak is competent to submit report of surviving successor of deceased sevak and said Pattajoshi Mahapatra had submitted report before defendant No.5, the Temple Administrator admitting plaintiff is the successor of Jagannath Mudra rather the plaintiff has captured the said Pattajoshi Mahapatra who was not pulling well with the defendant Nos.1 to 3 and gained over by the plaintiff. They have also denied regarding the decision made in Sadhibandha Case No.16 of 1981 wherein the plaintiff had not a party and the said case was a nullity. They have stated that the plaintiff has never treated in the locality amongst the public at large and in all the official record as son of Jagannath Mudra. He is a prompt litigant and manufactured false document for his case. They have stated that the plaintiff has never treated in the locality amongst the public at large and in all the official record as son of Jagannath Mudra. He is a prompt litigant and manufactured false document for his case. They also stated that the plaintiff impleaded himself as a party to T.S. No.89/410 of 1995/2002 and defendant No.4 was not the exclusive sevak of ‘Mudra Seva Pali’ as claimed in the earlier suit. They have stated the real fact at paragraph-13 that they claimed the ancestral seva right of defendant Nos.1 to 3 to render the ‘Mudra Seva Pali’ as per the Records of Rights of Shree Jagannath Temple wherein it was recorded in the remark column that the incumbents of the said Seva are Lokanath Mudra, the father of defendant Nos.1 to 3, Chintamani Mudra and Jagannath Mudra. Jgannath Mudra died about 14 years back as issueless. Chintamani Mudra died about 39 years back and Lokanath Mudra died about 27 years back. They also pleaded that Lokanath was performing ‘Mudra Seva Pali’ in the temple of Lord Jagannath Temple till his death peacefully, continuously and uninterruptedly for more than 12 years. He was also receiving ‘Khei’ as per the Records of Right excluding Jagannath and Chintamani. In the day to day duty chart also known as Palia Register, the attendance of Lokanath and defendant Nos.1 to 3 were also mentioned by the Temple Authority in respect of ‘Mudra Seva Pali’ in alternative defendant Nos.1 to 3 and their father perfected their title over the ‘Mudra Seva Pali’ by way of adverse possession. During life time Jagannath and Chintamani have not raised any objection or challenged the exclusive seva of Lokanath Mudra. Therefore, the exclusive seva of Lokanath is adverse to the Chintamani and Jagannath as they have inherited the ‘Mudra Seva Pali’ after death of Lokanath. 2.2Parties have adduced their evidence on affidavit. The documents were marked as exhibits. Plaintiff was examined as P.W.9. At that stage defendant Nos.1 to 3 have filed an application under Order 16, Rule 1 (2) of C.P.C. to issue summon one Radhamani Dibya @ Panda @ Mudra to give evidence. It was stated that she is the wife of one Das Panda residing at Goudabadi Sahi of Puri Town. She is the natural mother of plaintiff as plaintiff in his cross-examination at paragraph-13 has disclosed that his natural mother. It was stated that she is the wife of one Das Panda residing at Goudabadi Sahi of Puri Town. She is the natural mother of plaintiff as plaintiff in his cross-examination at paragraph-13 has disclosed that his natural mother. Is Radhamani and she died 50 years back. However, said Radhamani is very much alive and she has another son namely Ramakrushna and one daughter Mira. To find out the truth the said Radhamani may be summoned for examination as witness. The plaintiff filed objection stating that the defendants attempted to adduce evidence through close acquaintance of their own person i.e. to say Radhamani @ Panda @ Mudra who is the wife of Das Panda against the plaintiff and they have falsely described as wife of Jagannath Mudra residing at Suranga Matha of Manikanika Sahi. The plaintiff further stated that the said person should not be summoned to give evidence in Court which is beyond the pleadings and the evidence on affidavit filed by the parties. 2.3After hearing the parties the trial Court held that the important issue in the suit is to decide as to whether the plaintiff is the successor of late Jagannath Mudra being his son and can perform ‘Mudra Seva Pali’. The documents relied on by him vide Ext.30 which goes to show that Jagannath had given statement before Temple authority that Radhamani is his wife, who claimed to be the wife of one Dasarathi panda to grab his property. The plaintiff in his cross examination has stated that Radhamani is his natural mother. The real truth will be revealed after taking evidence from said Radhamani and accordingly by the impugned order allowed the application. 3.Learned counsel appearing for the petitioner submitted that the evidence beyond the pleadings should not have been considered by the Court therefore, the Court below while allowing the application of defendant Nos.1 to 3 under Order 16, Rule 1(2) of C.P.C. has not applied its mind to the pleadings and evidence on affidavit filed by the parties which are already part of the record. He has further submitted that there is no material that Radhamani to who the defendants want to examine is the same person, who is the wife of Jagannath Mudra. He has further submitted that there is no material that Radhamani to who the defendants want to examine is the same person, who is the wife of Jagannath Mudra. He also stated that the plaintiff himself has already stated that his mother died 50 years back and there is no material that the plaintiff has stated a false statement regarding death of his natural mother. In support of his contention he has relied on the decisions reported in 64 (1987) C.L.T. 102, AIR 1953 SC 235 , AIR 1959 SC 504 , (2009) 1 CLR 1 and AIR 1978 ORISSA 172. 4.Learned counsel appearing for opposite parties submitted that Jagannath died issue less and a bachelor therefore the claim of the plaintiff to be son of Jagannath is not tenable as he himself has admitted that his mother name is Radhamani. Therefore, Radhamani is to be summoned so that the real truth can be revealed. He further submitted that the trial Court has rightly allowed the application under Order 16, Rule 1(2) of C.P.C. which need not be interfered with. He also stated that the plaintiff has filed documents vide Ext.28 the Voters’ list of 2004 excluding the name of Rahdamani whereas the Voters’ list vide Ext.T (Voters’ list of 2004) showing the name of Radhamani in Holding No.87 which is similar to Ext.28. P.W.2, Sudhansu Sekhar Pattnaik stated at paragraph-29 of his cross-examination that Delua Karan, Tadhau Karan, Patajoshi Mohapatra and Bhitarachhu Mahapatra gave reports to the Temple administration that Jagannath Mudra died issueless. Ext.30 statement of Jagannath Mudra given in Sadhibandha Case No.16 of 1981, which was marked as objection and the said statement was discussed in Ext.A was the final decision as the same has not been challenged before any higher forum and has reached its finality. He has also submitted that summon was issued to Radhamani in C.S. No.81 of 2004 and the service report of the said summon reveals that she has received the same. However, she being an aged lady put her L.T.I., therefore, she needs to be examined as a witness. He has also submitted that summon was issued to Radhamani in C.S. No.81 of 2004 and the service report of the said summon reveals that she has received the same. However, she being an aged lady put her L.T.I., therefore, she needs to be examined as a witness. He further submitted in O.S. No.270 of 1983 filed by Jagannath Mudra, Radhamani filed an application to be substituted in place of Jagannath Mudra, who died on 21.9.1987 wherein the defendants in the said suit have objected to the said application for substitution stating that said Rahdamani is not the legally married wife of the original plaintiff, she is mistress of Jagannath Mudra. She left the house of her real husband Das Panda and being a mistress she has gave birth to Ramakrushna, Raghu and Mira, who are not the legal heirs of Jagannath. However, the said suit was dismissed for non prosecution. Hence examination of said Radhamani is necessary. In support his contention he has relied on the decisions reported in AIR 1987 ORISSA 179 and AIR 1966 SC 735 . 5.Considering the rival submission of the parties and after going through the materials available on record, it appears that the plaintiff claims to be the successor of one Jagannath Mudra. The pleadings of the parties are completed. They have also adduced their evidence on affidavit which forms part of the record. Whether Radhamani as stated by P.W.9-plaintiff in his cross examination is the one and same person as stated by defendant Nos.1 to 3 in their application under Order 16, Rule 1(2) of C.P.C. is in doubt as no materials available on record. Plaintiff has categorically stated in his cross examination that his natural mother is Radhamani who died 50 years back. There is no material available on record to show that Radhamani as claimed by defendant Nos.1 to 3 is the wife of Jagannath Mudra either in the pleadings or a specific issue was settled to that effect in the suit. However, the document relating to O.S. No.270 of 1983 appears that the said application was filed to substitute the plaintiff. In the said suit the Court has not yet enquired into the legal heirs of Jagannath as required under Order 22, Rule 5 of C.P.C. Therefore, the document does not conclusively reveal that Jagannath’s wife was Radhamani. However, the document relating to O.S. No.270 of 1983 appears that the said application was filed to substitute the plaintiff. In the said suit the Court has not yet enquired into the legal heirs of Jagannath as required under Order 22, Rule 5 of C.P.C. Therefore, the document does not conclusively reveal that Jagannath’s wife was Radhamani. Those documents are of no consequences to the present suit rather it appears that defendant Nos.1 to 3 in the present suit tried to examine a lady and taking a plea that the application filed in O.S. No.270 of 1983 trying to tarnish the character of a lady in Court. The trial Court without visualizing the consequences of all those materials allowed the application. 5.1In the case of Radhashyam Mohanty and another v. Narayan Chandra Nath and others reported in 64 (1987) C.L.T. 102 this Court held that the Court should not permit evidence to be led on matters which are beyond the pleadings of the parties and even if such evidence finds place in record the Court is not entitled to look into it for any purpose whatsoever. 5.2In the case of M/s. Trojan & Co. Ltd. v. Rm. N.N. Nagappa Chettiar reported in AIR 1953 SC 235 the Apex Court held that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. 5.3In the case of Shri Kishori Lal v. Mst. Chaltibai reported in AIR 1959 SC 504 the apex Court held that a party cannot be allowed to set up a case different to his case in the written statement nor can he be allowed to prove his title as an adopted son on such different case. 5.4In the case of Kailash Chandra Jain v. State of Odisha and others reported in (2009) 1 CLR 1 this Court held that the Court is not permitted to decide a case going out of the pleadings of the parties nor the evidence led on a non-existing plea is permitted to be taken into consideration. 5.4In the case of Kailash Chandra Jain v. State of Odisha and others reported in (2009) 1 CLR 1 this Court held that the Court is not permitted to decide a case going out of the pleadings of the parties nor the evidence led on a non-existing plea is permitted to be taken into consideration. 5.5In the case of Ramchandra Das v. Hiralal Modi reported in AIR 1978 ORISSA 172 this Court referring to the decision reported in AIR 1974 Orissa 85 held that where a part has failed to set up a case in his pleadings he is debarred from leading evidence in its support at the state of trial. 5.6In the case of Achutananda Sahoo v. Dhruba Ch. Sahoo and others reported in AIR 1987 ORISSA 179 this Court held that in case permission is given at the last moment to examine witnesses, there is every chance of the parties playing hide and seek resulting in the real truth being suppressed. That however, does not mean that a party submitting the list of witnesses at a belated stage should be prohibited from adducing any evidence. The procedure is not be utilized to obstruct the free flow of justice and proper adjudication. Formality, no doubt is a hallmark of authenticity. That does not mean that a party should suffer merely because he has not adhered to the formalities. Procedure is never mandatory in nature. 5.7In the case of Bhagawati Prasad v. Chandramaul reported in AIR 1966 SC 735 the Apex Court in held that if a plea is not specifically made and yet it is covered by an issue by implication and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely, in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely, in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is did the parties know that the matter in question was involved in the trial, and did they lead evidence about it ? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another. There is no dispute regarding the aforesaid proposition of law. In the aforesaid case the parties have proved their case by adducing evidence satisfactorily on the implied issue though not covered by a specific issue. Since evidence was led knowing fully well that the said evidence is beyond the pleadings and the issue involved impliedly. In such situation it cannot be said that such evidence will not be looked into as beyond the pleadings. In the present case the facts and circumstances are different as parties have not adduced evidence beyond pleadings rather the defendants want to examine a witness beyond the pleadings of the parties. 5.8The parties have not pleaded that Radhamani is the wife of Jagannath nor any evidence was adduced to that effect. Therefore, those facts are beyond the pleadings of the parties. In the present case defendant Nos.1 to 3 rather wants to examine a witness to adduce evidence beyond pleadings. In such a situation the application under Order 16, Rule 1(2) of C.P.C. is not tenable to examine a person as witness and to tarnish the character of such witness in Court. Further law is well settled that plaintiff will succeed on its own strength and he cannot succeed on the witnesses of defendants in a Civil Suit. In such a situation the application under Order 16, Rule 1(2) of C.P.C. is not tenable to examine a person as witness and to tarnish the character of such witness in Court. Further law is well settled that plaintiff will succeed on its own strength and he cannot succeed on the witnesses of defendants in a Civil Suit. 6.In view of the above and as there is error apparent on the face of the record, this Court in exercise of the jurisdiction under Article 227 of the Constitution of India while quashing the impugned order dated 23.4.2013 passed by the learned Civil Judge (Junior Division), Puri in C.S. No.81 of 2004 directs the Court below to dispose of the suit in accordance with law, as expeditiously as possible, preferably by end of October, 2014. Parties are directed to cooperate with the Court below for early disposal of the suit. Accordingly, this Writ Petition along with Misc. Case is disposed of. The interim order dated 14.05.2013 passed by this Court in Misc. Case No.10721 of 2013 stands vacated. Petition disposed of.