Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 705 (ORI)

Nabaghana Mohapatra v. Ramesh Chandra Bastia

2017-07-11

A.K.RATH

body2017
JUDGMENT : Dr. A.K. Rath, J. By this application under Article 227 of the Constitution of India, challenge is made to the order dated 17.11.2016 passed by the learned 2nd Additional Civil Judge (Sr. Divn.), Bhubaneswar in C.S. No.123 of 2013, whereby and whereunder, learned trial court rejected the application of the defendant-petitioner to stay the further proceeding of the suit till disposal of Consolidation Revision Case No.97 of 2016 pending before the Commissioner, Consolidation and Settlement, Odisha, Bhubaneswar. 2. Since the dispute lies in a narrow compass, it is not necessary to recount in detail the cases of the parties. Suffice it to say that the opposite parties as plaintiffs instituted the suit for permanent injunction impleading the petitioner as defendant. The defendant filed written statement. While the matter stood thus, the defendant filed an application to stay the further proceeding of the suit till disposal of Consolidation Revision Case No.97 of 2016 pending in the court of the Commissioner, Consolidation and Settlement, Odisha, Bhubaneswar. It is stated that in the consolidation as well as the suit, parties are same so also the property. The plaintiff filed objection to the same. Learned trial court having rejected the same, the instant petition has been field under Article 227 of the Constitution of India. 3. Heard Mr. Malaya Kumar Mishra, learned counsel for the petitioners and Mr. S.C. Acharya, learned counsel for the opposite parties. 4. The sole question that hinges for consideration is as to whether further proceeding of the suit shall remain stayed till disposal of the consolidation revision ? 5. The subject-matter of dispute is no more res integra. This Court in the case of Bijaya Kumar Prusty and others v. Harekrushna Prusty and others, 2016 (II) OLR 410 held thus: “9. 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 and another, (W.P.(C) No.4660 of 2005 disposed of on 28.8.2015). This Court in paragraphs 6, 7 and 8 of the said judgment 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 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 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 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. 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 in the case of Bijaya Kumar Prusty and others (supra) apply with full force to the facts of the case. In view of the same, order dated 17.11.2016 passed by the learned 2nd Additional Civil Judge (Sr. Divn.), Bhubaneswar in C.S. No.123 of 2013 is quashed. The ratio in the case of Bijaya Kumar Prusty and others (supra) apply with full force to the facts of the case. In view of the same, order dated 17.11.2016 passed by the learned 2nd Additional Civil Judge (Sr. Divn.), Bhubaneswar in C.S. No.123 of 2013 is quashed. The Commissioner, Consolidation and Settlement, Odisha, Bhubaneswar is directed to dispose of the Consolidation Revision Case No.97 of 2016 within a period of three weeks from today. Further proceeding in C.S. No.123 of 2013 shall remain stayed till disposal of Consolidation Revision Case No.97 of 2016. 7. The petition is disposed of.