Orissa High Court
Chinanchitti Raj Kishore Subudhi vs Smt. M. Manjula Senapati And Ors. on 19 June, 2003
Equivalent citations: 96(2003)CLT68
Author: P.K. Tripathy
Bench: P.K. Tripathy
JUDGMENT P.K. Tripathy, J.
1. A short and simple legal issue is in dispute in this Civil Revision preferred by the defendant in Title Suit No. 40 of 2000 of the Court of Civil Judge (Sr. Division), Koraput.
2. This Civil Revision was filed on 29.9.2000. Hearing was concluded and judgment reserved on 18.3.2002. Therefore, the question of maintainability of the suit in accordance with the amended provision in Section 115, C.P.C. was neither advanced nor considered.
3. Admittedly, parties are at issue on the relief claimed by the plaintiffs in Title Suit No. 40 of 2000. As noted by the Court below and not disputed by the parties, two of the important issues arising from the pleadings are (1) whether there was a previous partition as claimed by the defendants ? and if not, (2) whether the defendants have perfected their title by adverse possession ?
4. On 7.9.2000, plaintiff sought for a direction from the trial Court to direct the defendants to lead the evidence on such issues on the ground that burden on the aforesaid issues rests with the defendants. That application was rejected by the trial Court on the ground that when the suit was posted for hearing, on the first date plaintiff did not pray in that manner. Application under Order 18, Rule 3, CPC filed by the plaintiff was allowed vide the impugned order. Accordingly, accepting the option availed by the plaintiff, learned Civil Judge directed the defendants to lead the evidence on the aforesaid two issues.
5. The stand of the defendant/ petitioner is that once the move of the plaintiff for directing the defendants to begin the evidence was rejected, thereafter the trial Court could not have issued such a direction by allowing the option under Order 18, Rule 3, CPC advanced by the plaintiff. The grievance is without any legal force. Order 18, Rule 1 and Order 18, Rule 3, CPC though lead to same consequence but they stand on different sequence. Therefore, rejection of the application under Order 18, Rule 1, C.P.C does not ipso facto operates res judicata or constructive, res judicata so as to preclude the plaintiff from exercising the option under Order 18, Rule 3, CPC, because application under Order 16, Rule 1, CPC was rejected on the ground of not filing that application in time and not otherwise.
6. The impugned order passed by the Court below being in conformity with the provision of law under Order 18, Rule 3, CPC and such principle having been propounded by this Court in the case of Aranya Kumar Panda v. Chintamani Panda and Ors., AIR 1977 Orissa 87, this Court finds no illegality in the impugned, order so as to interfere with the same. Accordingly, the Civil Revision is dismissed. No cost.