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2017 DIGILAW 1152 (ORI)

Tapas Kumar Mahapatra v. Biswambar Mohapatra

2017-10-13

BISWANATH RATH

body2017
JUDGMENT : Biswanath Rath, J. 1. This civil miscellaneous petition involves rejection of an application under Order 18 Rule 1 of C.P.C seeking a direction to the D.1 to begin the hearing first. 2. Assailing the impugned order, learned counsel for the petitioner submitted that for the clear objection of the defendant in the written statement with regard to the existence of a previous partition, the fate of the suit will be dependent on the ultimate outcome involving the previous partition. Therefore, there arises a situation for asking the defendant No.1 to begin first. Referring to a decision of this Court in the case in between Babaji Behera versus Baishnaba Charan Behera as reported in 2016 (Supp.-I) OLR – 112, Sri Raju, learned counsel for the petitioner submitted that this decision has a direct application to the case at hand and for which, submitted that the impugned order should be interfered with and set aside. 3. Sri Bhaskar Chandra Panda, learned counsel for the opposite party No.1 on the other hand, while supporting the impugned order submitted that the plaintiff has to succeed on its own leg and there is no scope for the plaintiff to bank on the plea of the defendants. It is under the circumstance, Sri Panda, learned counsel for the opposite party no.1 claimed that there is a justified decision by the trial Court involving an application under Order 18 Rule 1 of C.P.C requiring no interference in the same. 4. Considering the rival contentions of the parties and on perusal of the specific averments made in the written statement, this Court finds, there is no denial to the existence of the fact at the instance of the particular defendant regarding existence of a previous partition. This Court thus observes, since the dispute involves a suit for partition, the dispute has a great bearing on the outcome on the claim of a previous partition. Therefore, this Court finds force in the submission of learned counsel for the petitioner. Further, looking to the decision of this Court referred to by Mr. S.P. Raju in the case of Babaji Behera versus Baishnaba Charan Behera as reported in 2016 (Supp.-I) OLR – 112 this Court finds, the decision has also direct application to the case of the petitioner. Further, looking to the decision of this Court referred to by Mr. S.P. Raju in the case of Babaji Behera versus Baishnaba Charan Behera as reported in 2016 (Supp.-I) OLR – 112 this Court finds, the decision has also direct application to the case of the petitioner. For the observations made hereinabove and for the settled position of law indicated hereinabove, this Court finds, the impugned order is not sustainable in the eye of law. As a consequence, while interfering with the impugned order, this Court sets aside the same and also while allowing the application under Order 18 Rule 1 of C.P.C, directs the defendant no.1 to begin the hearing first. 5. The civil miscellaneous petition succeeds and in the circumstances, there is no order as to cost.