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2017 DIGILAW 849 (ORI)

Sunil Kumar Pradhan v. Binaya Kumar Dash

2017-08-08

BISWANATH RATH

body2017
JUDGMENT : Biswanath Rath, J. 1. This Civil Revision involves challenge to an order dated 25.11.2014 passed by the learned Civil Judge (Senior Division), Angul in Civil Suit No.115 of 2009 rejecting an application under Order 14, Rule 2 of the Code of Civil Procedure. 2. Short background involved in the case is that the plaintiff-opposite party herein filed the suit against five defendants-petitioners herein for declaration of suit schedule property to be registered in the name of the plaintiff with other consequential reliefs indicated therein. During pendency of the suit, after filing the written statement, while the suit was being taken up for hearing, the defendants filed a petition under Order 14, Rule 2 of the Code of Civil Procedure asking for deciding the suit on preliminary issue on the ground of territorial and pecuniary jurisdiction as well as the suit being hit by provision of law created under the O.L.R. Act. Hearing the parties involved in the suit as well as in the application under Order 14, Rule 2 of the Code of Civil Procedure, the court below rejected the application on 25.11.2014 with the observation that the issues raised therein involves question of law and fact and such issues cannot be decided as preliminary issues. 3. Assailing the impugned order, Sri Pradhan, learned counsel appearing for the petitioners submitted that the question relating to the court trying the suit having no territorial jurisdiction being beyond the jurisdiction of the court for the facts situation involved herein is a purely question of law, the trial court failed in appreciating such aspect. Sri Pradhan, learned counsel for the petitioners also submitted that looking to the nature of pleadings and the prayer involved therein, the trial court failed to appreciate the provision of law prescribed under Section 16 of the Code of Civil Procedure requiring a suit to be tried where the immovable property situates. Further, the property since involved particularly. The petitioner no.5, being a member of Scheduled Caste, transfer or alienation of the property of a Scheduled Caste member in favour of the members of the other caste, compliance of provision at Section 22 (4) of the O.L.R. Act is mandatory. It is thus contended that the relief sought for in the suit is hit by provisions of the O.L.R. Act. Further, the trial court has also failed in appreciating the valuation of the suit. It is thus contended that the relief sought for in the suit is hit by provisions of the O.L.R. Act. Further, the trial court has also failed in appreciating the valuation of the suit. It is under the premises, Sri Pradhan, learned counsel appearing for the petitioners-defendants requested this Court for interfering in the impugned order. 4. Sri P.K. Rath, learned counsel appearing for the sole opposite party while strongly disputing the submissions made by learned counsel for the petitioners, taking this Court to the pleadings submitted that the suit involves declaration and injunction, for the clear admission in the written statement and in the counter, where the defendants have admitted to have taken money after execution of the sale agreement with further agreement to execute the sale deed after complying all formalities, the matter became clearly a dispute involving contract. Further, for the possession of the disputed property and the place of institution of the suit, the plaintiff has multiple places for initiating the suit. It is thus claimed that plaintiff prima facie satisfied that he had a cause of action at the place of institution of the suit and thus the question of Jurisdiction of the Court, if any, raised by the defendant can only be gone into in the trial of the suit. Similarly, on the question of application of provision of O.L.R. Act, Sri Rath, learned counsel for the opposite party submitted that the question as to whether defendant no.5 belongs to Scheduled Caste or not having not been disclosed in the agreement, the claim that the suit is hit by the provisions of the O.L.R. Act cannot be gone into in the preliminary stage. Sri Rath, learned counsel thus claimed that for the observations and the findings involved in the impugned order, there is no infirmity in the impugned order. 5. Considering the rival contention of the parties and looking to the plaint averments made in the Civil Suit No.115 of 2009, this Court finds in the suit, the plaintiff has the following pleadings: Paragraphs-2, 3, 6 and 8 read as follows: “That, the suit schedule properties are situated in mouza-Nabadeepapur under Athamallik Police Station. That the plaintiff is the Managing Director of Kansu Properties and Consultancy Pvt Ltd. For the development of this private company the plaintiff has negotiated with the defendants to purchase the suit schedule properties and accordingly on dtd. That the plaintiff is the Managing Director of Kansu Properties and Consultancy Pvt Ltd. For the development of this private company the plaintiff has negotiated with the defendants to purchase the suit schedule properties and accordingly on dtd. 08.11.2009 the talk between the parties reduced in writing and two numbers of agreements were executed in favour of the plaintiff in presence of witnesses. One is executed by Sunil Kumar Pradhan, Sushil Kumar Pradhan, Sanjib Kumar Pradhan and Saroj Kumar Pradhan and another was executed by Lambodar Behera. That, the parties have entered into the agreement at the office of the plaintiff situated at Angul and executed an agreement continuing the sale of the properties (immovable) and taken an advance of Rupees five lakhs and assured the plaintiff to register the property before the registering authority Angul/Athmallik after taking rest agreed amount. The agreement and receipt were duly signed by the parties and their responsible persons. That, the plaintiff by utilizing his JCP machine started clearing of the entire area and made further expences towards the development of the earth work along with the preparation of project expences paid to Beauidel Creation (Architect). Thereby the plaintiff has already made expenses for Rs.10,00,000.00/- (Rupees ten lakahs) only.” Reading of the pleadings involving the plaint quoted herein above leaves no doubt that the property involved therein though situates in MouzaNabadeepapur under Athamallik Tahasil but the transaction involving the disputed property all through was made at Angul. Therefore, the question as to whether suit was required to be instituted at Angul or Athamallik cannot be determined at the preliminary stage and can be determined only after entering into the trial. This Court therefore observes, the trial court did no wrong rejecting such claim while deciding the application under Order 14 Rule 2 of the Code of Civil Procedure and keeping it reserve to be decided along with other issues involving the suit in the ultimate trial of the suit. This Court therefore observes, the trial court did no wrong rejecting such claim while deciding the application under Order 14 Rule 2 of the Code of Civil Procedure and keeping it reserve to be decided along with other issues involving the suit in the ultimate trial of the suit. Similarly, looking to the other question raised as to application of the provision of O.L.R. Act to attract the provision contained in Order 14, Rule 2 (b) of the Code of Civil Procedure, this Court finds such a question though raised in the written statement, but from the agreement for sale of land appended as Annexure-1 to the Civil Revision, this Court nowhere finds that the vendor anywhere indicated in the agreement of sale that the defendant no.5 belongs to Scheduled Caste. For non-disclosure of such aspect in the agreement for sale of the disputed land involved herein, such question remains in dispute and therefore, could not have been gone into while deciding an application under Order 14, Rule 2 of the Code of Civil Procedure. Perusal of the impugned order, this Court finds the trial court proceeded in the matter in right perspective and there being no illegality or impropriety in the findings of the trial court in rejecting the application under Order 14, Rule 2 of the Code of Civil Procedure. There is no scope for this Court to interfere in the impugned order. 6. Now considering the citation cited by learned counsel for the petitioner rendered in the case of Harshad Chiman Lal Modi v. D.L.F. Universal Ltd. and another, AIR, 2005 Supreme Court 4446, this Court finds the fact situation involved in the case referred to being clearly different from the fact involved in the case at hand, the decision referred to hereinabove have no application to the case at hand. 7. While dismissing the revision, this Court makes it clear that since the question raised by way of Order 14, Rule 2 of the Code of Civil Procedure is kept open to be adjudicated in the ultimate trial, the issues indicated above, if framed, will be adjudicated upon independent of the observations made in the impugned order and the observations hereinabove. Further, as the suit is pending since long, this Court directs the trial court to close the suit within six months at the maximum. Both parties undertake not to resort to unnecessary adjournments. No cost.