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2014 DIGILAW 647 (ORI)

Alekh Sahoo v. Sudhansu Mohan Mishra

2014-09-26

S.PANDA

body2014
JUDGMENT S.PANDA, J. Petitioners in this petition have challenged the order dated 3.2.2014 passed by learned Civil Judge (Sr.Divn.), Athgarh in C.S.(I) 44 of 2009 allowing an application under Order 6, Rule 16 of the Code of Civil Procedure filed by the Plaintiffs to strikeout the pleadings made by the defendants in the written statement. 2. The defendants are the Petitioners. The Opp. Parties are the Plaintiffs filed the suit for declaration of right title & interest & for recovery of possession. They also claimed mandatory injunction along with other reliefs. The Plaintiffs pleaded inter alia that they are the successor in interest of one Lingaraj Khadenga. In O.L.R. Case No.1 of 1997 the defendants were evicted from the suit land & delivery of possession was given to the Plaintiffs on 18.12.2006 by the R.1. Sadar, Athgarh, From the said date they are in possession of the land uninterruptedly & constructed two rooms at the Western side of the suit land & construction was raised up to lintel level. Their construction was objected by defendant No.7 on the guise of ownership over the suit land. She claimed that she has purchased part of the property by Registered Sale Deed dated 19.5.2006 from the defendant Nos. 2 to 6 who have no right over the property they being evicted from the suit land in O.L.R Case NO.1 of 1997. In the plaint they have also disclosed I.C.C. No. 92 of 2008. As the defendants create cloud to the entitlement of the Plaintiffs the suit was filed with the aforesaid relief. The defendant Nos. 1 to 6 filed their written statement jointly traversing the plaint allegation. They have taken a stand that due to death of Golekh Sahoo on 20.10.2001 the O.L.R Case was abated for non-prosecution of his legal heirs. They have not received any notice for delivery of possession as claimed by the Plaintiffs through RI. & as the O.L.R case was abated the order passed in said case was not binding on them. White they are continuing in possession or the property, they have executed a sale deed in favour of defendant No.7 & the purchaser is in possession of the property from the date of sale deed. She has constructed two pucca rooms over her purchased land. White they are continuing in possession or the property, they have executed a sale deed in favour of defendant No.7 & the purchaser is in possession of the property from the date of sale deed. She has constructed two pucca rooms over her purchased land. They also averred that Plaintiff No.2 is a notorious & mischievous person ill the locality & Plaintiff No.3 in his accused statement in Sessions Case (S~T. Case No. 685 of 2002) stated so & created disturbance in the possession of defendants. They have filed O.L.R Appeal No.1 of 2009 which was pending therefore, the Plaintiffs are not entitled to any relief in the case & is liable to be dismissed. After receiving the copy of the written statement the Plaintiffs have filed an application under Order, 6 Rule, 16 of the C.P.C. to strikeout the pleadings of the defendants regarding Plaintiff No.2 as a notorious & mischievous person in the locality & Plaintiff NO.3’s accused statement in the aforesaid Sessions case as those pleadings are unnecessary, irrelevant & scandalous & no connection with the present dispute. The defendants have filed their objection denying the allegation made by the Plaintiffs & reiterated the said facts which was necessary for proper determination of the dispute between the parties. The criminal case is matter of record to show the conduct of the Plaintiffs to grab the property & those pleadings are necessary to ascertain the real intention of the Plaintiffs as such the pleadings need not be strikeout. 3. Learned counsel for the Petitioners submitted that as those pleadings are necessary & those are the matter of records there is no materials Of record to come to a conclusion that the said pleadings are unnecessary & vexatious or may prejudice the Plaintiffs therefore the impugned order need be interfered with & defendants are relying on those documents for their defence. In support of hi$ contention he has relied on the decisions reported in A.I.R. 1976 S.C.744, Udhav Singh V. Madhav rao Scindia, 1989 (I) OLR.165, S.M.N. Abdi V. Bennett Coleman & Co. Limited & Ors. In support of hi$ contention he has relied on the decisions reported in A.I.R. 1976 S.C.744, Udhav Singh V. Madhav rao Scindia, 1989 (I) OLR.165, S.M.N. Abdi V. Bennett Coleman & Co. Limited & Ors. In the case of Udhav Singh (supra) the Apex Court held that pleading to be read as a whole & pleading to be read as such to ascertain its true import & it is not permissible to cull out a sentence or a passage & to read it out of the context in isolation. This Court while considering the provision of Order, 6 Rule, 16 in the case of S.M.N. Abdi (supra) held that it is a serious matter & recourse should not be taken unless there are compelling reasons & the particulars which are necessary to be furnished & in absence of which the plea taken by the defendants in the written statement cannot be allowed to be sustained. If the defendants deliberately do not comply with the said direction of the Court to furnish the particulars, in such situation Court may strikeout those pleadings. 4. Learned counsel appearing for the Opp. Parties submitted that the defendants are no way connected with the Sessions case therefore the accused statement made by the Plaintiff No.3 in the said Sessions case has no relevancy to the present case. Therefore the pleadings of the defendants in that respect are scandalous ill nature & unnecessary hence rightly the court below directed to strikeout the said pleadings. in support of his contentio!1 he has relied on the decisions reported in A.I.R. 2007 Orissa 9, Sk. lllias v. Co-operative for American relief Everywhere, India & Ors (CARE), A.I.R. 1997 Orissa 115; Prasahna Kumar Patasani v. Janaki Ballav Pattnaik. 5. In the case of Sk. lllias (supra) this Court considered the application to strikeout the pleadings in a suit challenging the order of termination of service & the Plaintiff made scandalous allegation against the officers who were not parties to the suit & as the averments are unnecessary after reading the plaint as a whole if the allegations are stuck out from the plaint Plaintiff can still raise the question of mala fide on the basis of other averments made. 6. Considering the aforesaid position of law & as the defendants in their written statement taking a specific plea that the Plaintiffs are powerful & taking law into their hands. 6. Considering the aforesaid position of law & as the defendants in their written statement taking a specific plea that the Plaintiffs are powerful & taking law into their hands. They have created hindrances in the right of the defendants & those pleadings are necessary for effective adjudication of the dispute between the parties. In support of their plea they have also furnished the particulars which are matter of records. The court below has not considered the same & allowed the application striking out the pleadings of the defendants which is an error apparent on the face of the record. 7. In view of the above discussion this Court sets aside the impugned order in exercising the jurisdiction under Article 227 of the Constitution of India & directs the trial court to proceed with the matter in accordance with law. Accordingly the Civil Miscellaneous Petition is disposed of.