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2017 DIGILAW 276 (ORI)

Bhramar @ Bhramarbar Pradhan v. Raj Kishore Sahoo

2017-03-15

A.K.RATH

body2017
JUDGMENT : DR. A.K. RATH, J. 1. By this application under Article 227 of the Constitution of India challenge is made to the order dated 2.1.2015 passed by the learned 3rd Additional District Judge, Puri in R.F.A. No.1/32 of 2013/2010. By the said order, learned lower appellate court rejected the application of the defendant no.1 to stay the further proceeding of the appeal till disposal of Consolidation Revision Case No.5 of 2014 pending before the Commissioner of Consolidation. 2. The opposite party nos.1 and 2 as plaintiffs instituted C.S. No.144 of 2007 in the court of the learned Civil Judge (Sr. Divn.), Puri for declaration of title, confirmation of possession and permanent injunction impleading the petitioner as well as opposite party no.3 as defendants. Pursuant to issuance of summons, the defendant no.1 entered appearance and filed a written statement denying the assertions made in the plaint. The suit was decreed. Assailing the judgment and decree of the learned trial court, the defendant no.1 preferred R.F.A. No.32/2010 before the learned District Judge, Puri, which is pending adjudication. While the matter stood thus, the defendant no.1 filed an application to stay the further proceeding of the appeal till disposal of Consolidation Revision Case No.5 of 2014 pending before the Commissioner of Consolidation. Learned appellate court rejected the application. 3. Heard Mr. N.C. Pati, learned counsel for the petitioner and Mr. A. Parida, learned counsel for the opposite parties. 4. The question does arise as to whether further proceeding in the appeal shall remain stayed till disposal of Consolidation Revision No.5 of 2014 on the file of the Commissioner of Consolidation? 5. In the case of Prahallad Bhol v. Shri Jagannath Mahaprabhu Bije Srikhetra Marfat Rajgoapl Ramanuj Das and another, (W.P.(C) No.4660 of 2005 disposed of on 28.8.2015), this Court held as follows:- “6. The subject-matter of dispute is no more res integra. In Jayadev Pradhan 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 recognized 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. Both the parties claimed tenancy rights over the suit schedule land under the Orissa Estates Abolition Act. The Estate Abolition Officer recognized 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 (II) 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 realization 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. 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.” 6. The ratio of the aforesaid decision applies with full force to the facts of the case. The property involved in the suit as well as consolidation revision is same. In view of the same, the petition is disposed of with a direction to the Commissioner of Consolidation to dispose of Consolidation Revision Case No.5 of 2014 within a period of three months from the date of production of a certified copy of the judgment. The further proceeding of the appeal shall remain stayed till disposal of the Consolidation Revision case. The further proceeding of the appeal shall remain stayed till disposal of the Consolidation Revision case. The petition is disposed of.