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2015 DIGILAW 580 (ORI)

GOPAL MALLIK & ANOTHER v. GHASI MALLIK & OTHERS

2015-10-08

A.K.RATH

body2015
JUDGMENT : Dr. A.K. Rath, J. - Assailing the order dated 4.2.2008 passed by the learned Civil Judge (Senior Division), Balangir in C.S No.29 of 2004, the instant petition has been filed under Article 227 of the Constitution of India. By the said order, the learned trial court rejected the application of the defendants to stay further proceeding of the suit till disposal of Jhankri Case No.51 of 1994 pending before the Tahasildar, Tusura. 2. Satya Mallik predecessor-in-interest of the opposite parties as plaintiffs laid C.S. No.29 of 2004 in the court of learned Civil Judge (Senior Division), Balangir for permanent injunction impleading the present petitioners as defendants. Pursuant to issuance of summons, defendants entered appearance and filed written statement denying the assertions made in the plaint. While the matter stood thus, the defendants filed an application to stay further proceedings of the suit till disposal of Jhankri Case No.51 of 1994 pending before the Tahasildar, Tusura. It is stated that the plaintiff has filed a case claiming Jhankar of village Chantimunda. He was performing Seva Puja of the deity. The suit land was allotted to him in Jhankri Case No.912 of 1965-66. Defendant no.1 was appointed as Marfatdar of the deity pursuant to the order of the Tahasildar, Tusura in Bebandobasta Case No.51/94. He was directed to perform Seva Puja of the deity. The plaintiff preferred an appeal being OLR Appeal No.11/03 before the A.D.M., Bolangir. By order dated 31.5.2005 the appeal was disposed of and the case was remanded to the Tahasildar for fresh disposal. With the factual scenario, the petition has been filed. 3. The plaintiff filed objection stating that the original plaintiff was performing Seva Puja of the deity. There is no need to stay the further proceeding of the suit since Jharnkari proceeding has no bearing on the result of the suit. 4. Learned trial court came to hold that the Jharnkari proceeding is pending before the Tahasildar, Tusura. Most of the witnesses in the suit have been examined. The decision cited by the defendant in the case of Chandrasekhar Mohanty v. State of Orissa, 2007 (2) CLR 649 is not applicable to the facts and circumstances of the case. Having held so the petition was rejected. 5. Most of the witnesses in the suit have been examined. The decision cited by the defendant in the case of Chandrasekhar Mohanty v. State of Orissa, 2007 (2) CLR 649 is not applicable to the facts and circumstances of the case. Having held so the petition was rejected. 5. The question thus arises as to whether further proceeding of C.S. No.29 of 2004 pending before the learned Civil Judge (Senior Division), Balangir shall be stayed till disposal of Jhankri Case No.51 of 1994 ? 6. An identical matter came up for consideration before this Court in the case of Prahallad Bhol v. Shri Jagannath Mahaprabhu Bije Srikhetra Marfat Rajgopal Ramanuj Das & another (WP (C) No. 4660 of 2005 disposed of on 28.8.2015). This Court in paragraphs 6, 7 and 8 held as follows : "6. The subject-matter of dispute is no more res integra. In Jayadev Padhan and others v. Managobinda Sathua, AIR 1967 Orissa 196, a suit was filed for declaration of title, confirmation of possession and permanent injunction. Both the parties claimed tenancy rights over the suit schedule land under the Orissa Estates Abolition Act. The Estate Abolition Officer recognised the title of the plaintiff. Assailing the same, the defendants had preferred an appeal, which was pending adjudication. An application was filed in the civil suit to stay the further proceeding till disposal of the O.E.A Appeal. The said petition having been rejected, the matter came to this Court. This Court held that for the ends of justice further proceeding in the suit should be stayed till disposal of the O.E.A. Appeal. The same view has been taken in Chandrasekhar Mohanty and others v. State of Orissa and others, 2007 (2) OLR 459 . 7. In P. Nirathilingam v. Annaya Nadar and others, AIR 2002 SC 42 there was a proceeding under the provision of the Tamil Nadu Debt Relief Act as well as civil suit for realisation of mortgage amount. Referring to Section 5 of the Tamil Nadu Debt Relief Act and Sections 9 and 10 of the Civil Procedure Code, the apex Court held that further proceeding in the suit should be stayed till the Tahasildar disposes of the application filed by the debtor under the Tamil Nadu Debt Relief Act. 8. In the instant case, the matter in issue is substantially the same in the suit as well as in the O.E.A. Appeal. 8. In the instant case, the matter in issue is substantially the same in the suit as well as in the O.E.A. Appeal. Though Section 10 CPC strictly has no application as held by the apex Court in the case of National Institute of Mental Health & Neuro Sciences v. C. Parameshwara, 2004 AIR SCW 6900, but in view of the nature of dispute and the prayer made in the suit, it will be appropriate to stay the further proceeding in the suit till disposal of O.E.A. Appeal No.5 of 2001 in exercise of the jurisdiction under Section 151 CPC." 9. Admittedly, the Tahasildar, Tusura is in seisin of Jhankri Case No.51 of 1994. In the said case, plaintiff has to establish his right of Seva Puja and Nitikranti of the deities. The result of Jhankri case has a direct bearing on the suit. The matter in issue is substantially the same in the suit as well as Jhankari case. 10. In view of the same, the order dated 4.2.2008 passed by the learned Civil Judge (Senior Division), Balangir in C.S No.29 of 2004 is quashed. Further proceeding of C.S. No.29 of 2004 shall remain stayed till disposal of Jhankri Case No.51 of 1994. The Tahasildar, Tusura is directed to conclude the hearing of Jhankri Case No.51 of 1994 within a period of three months from the date of receipt of the order. Registry is directed to communicate this order to the Tahasildar, Tusura immediately. 11. The petition is disposed of.