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2017 DIGILAW 748 (ORI)

Khetra Mohan Tripathy v. Basudev Acharya

2017-07-18

A.K.RATH

body2017
JUDGMENT : A.K. Rath, J. This petition challenges the order dated 7.1.2017 passed by the learned Civil Judge (Junior Division), Jagatsinghpur in Title Suit No. 435 of 2001 whereby and whereunder the learned trial court stayed the further proceeding of the suit till disposal of RRP Case No. 5585 of 2001 pending before the Consolidation Officer-cum-Addl. Sub-Collector, Jagatsinghpur. 2. Heard Mr. Pattnaik, learned counsel for the petitioners and Mrs. Jena, learned counsel for the opposite party. 3. Mr. Pattnaik, learned counsel for the petitioners, submits that the petitioners as plaintiffs instituted Title Suit No. 435 of 2001 in the court of learned Civil Judge (Junior Division), Jagatsinghpur for permanent injunction impleading the opposite party as defendant. The counter claim filed by the defendant has been rejected. Being unsuccessful, the defendant filed an application under Section 151 CPC before the learned trial court to stay further proceeding of the suit till disposal of RRP Case No. 5585 of 2001 pending before the Consolidation Officer-cum-Addl. Sub-Collector, Jagatsinghpur. He further submits that the revision petition filed before the Consolidation Officer is not maintainable. 4. Per contra, Mrs. Jena, learned counsel for the opposite party, submits that the defendant as petitioner filed RRP Case No. 5585 of 2001 under Section 37(2) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 before the Consolidation Officer-cum-Addl. Sub-Collector, Jagatsinghpur. The subject-matter of dispute is identical in both the maters. In view of the same, further proceeding of the suit may be stayed till disposal of RRP Case No. 5585 of 2001 pending before the Consolidation Officer-cum-Addl. Sub-Collector, Jagatsinghpur. 5. The question does arise as to whether further proceeding of the suit shall remain stayed till disposal of RRP Case No. 5585 of 2001 pending before the Consolidation Officer-cum-Addl. Sub-Collector, Jagatsinghpur ? 6. An identical matter came up for consideration before this Court in the case of Bijaya Kumar Prusty and others v. Harekrushna Prusty and others, 2016 (II) OLR 410. This Court in para-9 of the report 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. 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 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.” 7. The ratio in the case of Bijaya Kumar Prusty (supra) applies with full force to the facts of the case. The ratio in the case of Bijaya Kumar Prusty (supra) applies with full force to the facts of the case. This Court directs that further proceeding of the suit shall remain stayed till disposal RRP Case No. 5585 of 2001 pending before the Consolidation Officer-cum-Addl. Sub-Collector, Jagatsinghpur. The Consolidation Officer shall dispose of RRP Case No. 5585 of 2001 within a period of three months. Thereafter, the suit shall proceed. The petition is disposed of.