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2017 DIGILAW 14 (ORI)

Bata Kishore Seth v. Kalarsing Meher

2017-01-02

D.DASH

body2017
JUDGMENT This application under Article-227 of the Constitution has been filed seeking quashment of an order dated 20.07.2009 passed by the learned Civil Judge (Sr. Division), Patnagarh in Civil Suit No. 29 of 2006. 2. The opposite party no. 1 as the plaintiff has filed the suit for declaration of right, title, interest and confirmation of possession over the suit land in the alternative for restoration of possession in case of his dispossion. The petitioner being defendant no. 1 has filed the petition under Order 7 Rule 11 of the Civil Procedure Code. By the above order, said petition has been rejected. 3. I have heard learned counsel for the petitioner and opposite parties, and have also perused the order in question. 4. The ground taken for rejection of the plaint is on account of pendency of the proceeding under Section 23 of OLR Act in relation to the subject matter of the suit urging that the civil Court has no jurisdiction in view of the provision of Section 67 of the OLR Act. The claim of opposite party no. 1 (plaintiff) is that he has purchased the suit land from one Chandra Kumbhar for consideration of Rs. 6,500/- by registered sale-deed obtaining necessary permission from the competent authority as required under Section 23 of the OLR Act. It is stated that the petitioner (defendant no. 1) and his brother had sold the suit land to Chandra Kumbhar through a prior sale-deed and accordingly the suit land had been recorded in the name of opposite party no. 1 (plaintiff). 5. The main reason assigned by the trial Court for rejection of the petition is for non-production of the revenue Misc. Case record and thus being not in a position to peruse the same to arrive at a definite conclusion as regards the rejection of the plaint on the ground of lack of jurisdiction of the Civil Court in view of Section 67 of the OLR Act. However, it appears that an issue to that effect has already been framed by a specific order of the trial Court upon the prayer of this petitioner (defendant no. 1) and other defendant. However, it appears that an issue to that effect has already been framed by a specific order of the trial Court upon the prayer of this petitioner (defendant no. 1) and other defendant. Therefore, the trial Court would necessarily be called upon to answer that issue and it is open to this petitioner (defendant no.1) then to produce all necessary documents in support of his defence on that score, in showing that the jurisdiction of the civil Court is ousted and consequentially to have the opportunity to thwart the suit on the ground of maintainability. In the factual settings as reveal from the rival case of the parties, the trial Court having dismissed the petition containing the prayer for rejection of the plaint at the threshold in the absence of documents in support of the said defence and thus being unable to arrive at a definite conclusion; this Court does not find that the order has caused miscarriage of justice particularly when the very same issue stands for decision in the suit on the basis of the pleadings and evidence as would be laid by the parties. 6. Accordingly, the application is hereby dismissed. No order as to cost. However, considering the submission of learned counsel for the parties while expressing concern over the pendency of the suit for long, this Court directs the trial Court to proceed with the hearing of the suit with expediency in order to see that the suit is finally disposed of in accordance with law as expeditiously as possible preferably within a period of six months from the communication of this order of production of the certified copy of this order whichever is earlier. Application dismissed.