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2023 DIGILAW 125 (ORI)

Krupasindhu Panda v. Anadi Mallik

2023-01-24

K.R.MOHAPATRA

body2023
JUDGMENT K.R. Mohapatra, J. - This matter is taken up through Hybrid mode. 2. Order dated 11th November, 2022 (Annexure-3) passed by learned Additional District Judge, Balasore in RFA No.462 of 2014 is under challenged in this CMP, whereby an application filed by the Petitioner under Order XLI Rule 27 CPC has been rejected. 3. learned counsel for the Petitioner submits that CS No.685 of 2007-I was filed for declaration of right, title and interest over the Schedule 'Ka' property and to declare the MS ROR to be wrong and also for correction of the same along with permanent injunction. The suit was dismissed ex-parte on 16th August, 2014 with the following observations:- '.... But the sale deed basing upon which Shyamsudar Panda purchased the property in Ext.1 has not been filed in this case to reach at a conclusion that his name has been correctly recorded in Ext.3 has not clearly been proved by the plaintiffs. Although the plaintiffs filed the yadast of MS operation which has been proved vide Ext.7, but the same does not reveal the possession of the plaintiffs on the basis of sale deed of Shyamsudar Panda. So, in absence of the sale deed, it cannot be said that the plaintiffs have got right title, interest over Ac.0.63 decs. Of land as per the CS ROR which has been marked as Ext.1. Hence, the amalgamation of the land to defendant No.1 cannot be proved in this case even though the Amin has been examined and proved the relay map vide Ext.6. Hence, the order.' Assailing the same, the Petitioners filed RFA No.462 of 2014. During pendency of the appeal, an application under Order XLI Rule 27 CPC was filed to admit RSD dated 19th June, 1983 as an additional evidence. The said application was rejected on the ground that it does not satisfy requirements of Order XLI Rule 27 CPC. Hence, this CMP has been filed. 4. It is submitted by Mr. Swain, learned counsel for the Petitioner that the Appellants lay their claim on the basis of RSD dated 19th June, 1983, which could not be filed before learned trial Court as it was misplaced and could not be traced out in spite of thorough search. Hence, this CMP has been filed. 4. It is submitted by Mr. Swain, learned counsel for the Petitioner that the Appellants lay their claim on the basis of RSD dated 19th June, 1983, which could not be filed before learned trial Court as it was misplaced and could not be traced out in spite of thorough search. During pendency of the appeal, the Petitioner could trace out the same and filed it along with an application under Order XLI Rule 27 CPC to be admitted as additional evidence. It is his submission that an application under Order XLI Rule 27 CPC should have been considered at the time of hearing of the appeal and not before that. Learned appellate Court considering the petition independently before the appeal is ready for hearing, dismissed the same. He, therefore, prays for setting aside the impugned order and direct learned appellate Court to admit the RSD dated 19th June, 1983, as the additional evidence. 5. Upon hearing learned counsel for the Petitioner and on perusal of record, it appears that there is no averment either in the plaint or any evidence has been led before learned trial Court to the effect that the RSD dated 16th August, 1983 was lost and could not be traced out and in spite of thorough search by the Petitioner. It is also apparent that learned trial Court while adjudicating the matter, has categorically held that the aforesaid sale deed could have thrown light on the case of the Petitioner. It is, however, submitted by Mr. Swain, learned counsel that MS ROR has been published in the name of the father of the Petitioner. But MS ROR neither creates nor extinguishes any title of the party. When the Petitioner along with proforma Defendants/Opposite Party Nos.10 to 15 had come up with a specific case that they have right, title and interest over 'Ka' schedule property, the burden is on them to prove the same. But they failed to discharge the same, as a result the suit was dismissed ex-parte. During pendency of the appeal, an application under Order XLI Rule 27 CPC was filed with a plea that the ROR was misplaced and could not be traced out. Such a contention at the appellate stage appears to be an afterthought to get over the lacunae in case of the Plaintiff before learned trial Court. During pendency of the appeal, an application under Order XLI Rule 27 CPC was filed with a plea that the ROR was misplaced and could not be traced out. Such a contention at the appellate stage appears to be an afterthought to get over the lacunae in case of the Plaintiff before learned trial Court. The provision under Order XLI Rule 27 CPC is not meant for that. If the RSD dated 19th June, 1983 was lost then the Petitioner along with other Plaintiffs could have obtained certified copy of the same and produced it the before learned trial Court for consideration. Thus, it appears that the Petitioner had not exercised due diligence to file the RSD dated 19th June, 1983 before learned trial Court. As such, learned Additional District Judge, Balasore has committed no error in dismissing the petition under Order XLI rule 27 CPC. 6. Thus, the CMP being devoid of any merit stands dismissed.