Orissa High Court
Hiralal Patel vs Kamal Kumar Agrawal .... Opp. Party on 4 July, 2024
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
Signature Not Verified
Digitally Signed
Signed by: ROJALIN NAYAK
Designation: JUNIOR STENOGRAPHER
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 04-Jul-2024 16:07:41
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP NO.432 OF 2024
Hiralal Patel .... Petitioner
Mr. Amit Prasad Bose, Advocate
-versus-
Kamal Kumar Agrawal .... Opp. Party
Mr. Ramankanta Mohanty, Senior Advocate
being assisted by Mr. Kalyan Mohapatra, Advocate
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 04.07.2024
01. 1. This matter is taken up through hybrid mode.
2. Order dated 11th April, 2024 (Annexure-1) passed by learned Civil Judge, (Senior Division), LR and LTV, Bargarh in Civil Suit No.134 of 2005 is under challenge in this CMP, whereby an application filed by the Petitioner for adducing further evidence in the suit, has been dismissed.
3. Mr. Bose, learned counsel for the Petitioner submits that CS No.134 of 2005 was originally filed by one Prabhabati Padhan for eviction of the Defendant. The Defendant claimed the suit property by virtue of a sale deed. Thus, the Defendant also filed the counter claim. The suit was decreed in favour of the Plaintiff- Prabhabati Padhan and the counter claim was dismissed. Assailing the same, the Defendant-Kamal Kumar Agrawal filed two appeals in RFA Nos.17 and 18 of 2013. The said appeals were heard analogously and were disposed of on 31st July, 2015 with the following order:
"7. In the result, the appeals under Section 96 read with Order XLI Rule 1 of the Code, at the behest of appellant stand allowed against the respondent No.1 on contest and others without contest. As a necessary corollary, the impugned judgment and decree dated 05.04.2013 promulgated in Civil Page 1 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 04-Jul-2024 16:07:41 Suit No. 134 of 2005 by the learned Civil Judge (Senior Division), Bargarh is hereby set aside. Consequentially, it is directed that the learned Court below shall appoint and depute a Civil Court Commissioner to ascertain whether the suit schedule 'A' land is a part and parcel of H.S. Plot No.106 and correspondingly of Ac.0.42 decimal sold under Ext.A and on the receipt of record, considering the material evidence on record and without being influenced by the observations of the Court in appeal shall dispose of the suit as well as cross suit covering all the issues on merit and in accordance with law. In the circumstances, however, parties to bear respective costs throughout."
4. The Petitioner is a lis pendens purchaser. During pendency of the appeal he filed an application to be impleaded as a party which was allowed and the Petitioner was impleaded as a party to the appeal. After remand, learned trial Court directed for measurement of the land by a Survey Knowing Commissioner, as directed by learned appellate Court. When the matter was so pending, the Plaintiff died. The Petitioner, being the lis pendens purchaser having purchased the land from the original Plaintiff, namely, Pravabati Padhan, filed an application under Order I Rule 10 (2) CPC to be transposed as Plaintiff. On being transposed, the Petitioner filed two applications, i.e., one for filing an additional written statement to the counter claim filed by the Defendant and another to adduce further evidence in the suit. Both the applications were rejected. Assailing the order of rejection to file additional written statement, the Petitioner filed CMP No.431 of 2024 which was dismissed vide order dated 1st July, 2024. The present application has been filed assailing the order refusing the Petitioner (transposed Plaintiff) to adduce further evidence.
5. Mr. Bose, learned counsel for the Petitioner submits that although the prayer for filing additional written statement to the counter claim was not entertained, but, the Petitioner is otherwise Page 2 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 04-Jul-2024 16:07:41 entitled to further evidence in the matter. This aspect was not looked into by learned trial Court while adjudicating the matter.
6. Mr. Mohanty, learned Senior Advocate appearing for the Defendant-Opposite Party vehemently objects to the same. He drew attention of this Court to the observation made by this Court while disposing of CMP No.431 of 2023. Para-4 of the order dated 1st July, 2024, by which CMP No.431 of 2023 was disposed of, reads as under:
"4. Considering the submission of learned counsel for the Petitioner and on perusal of the record more particularly the impugned order, it appears that the application for filing of the additional written statement was filed at the stage when the suit is posted for argument. Further, it appears that the Petitioner has been transposed as Plaintiff on her death. Thus, he stepped into the shoes of the Plaintiff and cannot take a different stand or expand the scope of adjudication of the suit or counter-claim by filing an additional written statement making claim. It is true that the Petitioner was impleaded party to the suit in exercise of power under Order I Rule 10 CPC, but he was transposed as Plaintiff in exercise of Order I Rule 10(2) CPC. Thus, he is precluded from taking a different stand than the Plaintiff in her written statement to the counter-claim. She is precluded from filing any additional written statement more particularly at the time of argument of the suit making an independent claim over the suit property. In that view of the matter, this Court finds that learned trial Court has committed no error in passing the impugned order under Annexure-1."
7. He, therefore, submits that when the transposed Plaintiff stepped into the shoes of original Plaintiff, he cannot take a different stand and adduce further evidence in the suit, more particularly, at a stage when the suit is posted for argument. He cannot raise any individual claim in the suit. Mr. Mohanty, learned Senior Advocate therefore, submits that there is no infirmity in the impugned order under Annexure-1.
8. Taking note of the submission made by learned counsel for the parties, this Court finds that the lis pendens purchaser- Petitioner was transposed as Plaintiff after death of the Prabhabati Page 3 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 04-Jul-2024 16:07:41 Padhan (the original Plaintiff). Thus, he has stepped into the shoes of said Pabhabati Pradhan. The Petitioner can only pursue the claim of the original Plaintiff and cannot plead and advance his individual claim in the suit. Further the suit is posted for argument.
9. In that view of the matter, this Court is of the considered opinion that learned trial Court has committed no error in dismissing the petition filed by the Plaintiff-Petitioner to adduce further evidence in the suit.
10. Accordingly, this CMP, being devoid of any merit, stands dismissed.
(K.R. Mohapatra)
Rojalin Judge
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