Shri Gopinath Jena And Another vs Shri Pitambara Jena And Others on 28 February, 2017

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Orissa High Court

Shri Gopinath Jena And Another vs Shri Pitambara Jena And Others on 28 February, 2017

Bench: A.K.Rath

                      HIGH COURT OF ORISSA: CUTTACK

                               C.M.P. No.575 of 2015

   In the matter of an application under Articles 226 & 227 of the
   Constitution of India.
                               -----------

   Shri Gopinath Jena                                      ....            Petitioners
   & another
                                                  Versus
   Shri Pitambara Jena
   & others                                                ....     Opposite Parties

              For Petitioner            ...      Mr. Bhubananda Mishra, Advocate

              For Opposite parties      ...      Mr. Maheswar Mohanty, Advocate

                               JUDGMENT
   PRESENT:

                  THE HONOURABLE DR. JUSTICE A.K.RATH

   Date of hearing: 28.02.2017                 : Date of judgment: 28.02.2017
DR.A.K.RATH, J.

This petition challenges the order dated 16.02.2015 passed by the learned Civil Judge (Junior Division), Kendrapara in C.S. No. 188 of 2013.

02. Opposite parties as plaintiffs instituted C.S. No. 188 of 2013 in the court of the learned Civil Judge (Junior Division), Kendrapara for eviction and permanent injunction impleading the petitioners as defendants. During pendency of the suit, an application was filed to stay further proceeding of the suit till disposal of Consolidation Revision Case No.301/2013 pending before the Commissioner, Consolidation and Settlement, Odisha, Cuttack. The same having been rejected, the instant petition has been filed.

03. Heard Mr. Bhubananda Mishra, learned counsel for the petitioners and Mr. Maheswar Mohanty, learned counsel for the opposite parties.

04. The question does arise as to whether further proceeding of the suit shall remain stayed till disposal of the consolidation revision ?

05. The subject-matter of dispute is no more res integra. This Court in the case of Bijaya Kumar Prusty and others v. Harekrushna Prusty and others, 2016 (II) OLR 410 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. 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 3 of O.E.A. Appeal No.5 of 2001 in exercise of the jurisdiction under Section 151 CPC."

06. Mr. Mishra, learned counsel for the petitioners, submits that in the meantime the Commissioner, Consolidation and Settlement, Odisha, Cuttack has heard the consolidation revision case and the judgment is reserved.

07. In view of the same, order dated 16.02.2015 passed by the learned Civil Judge (Junior Division), Kendrapara in C.S. No. 188 of 2013 is quashed. Further proceeding in C.S. No. 188 of 2013 shall remain stayed till disposal of Consolidation Revision Case No. 301/2013. The learned trial court shall proceed with the suit immediately after judgment is pronounced.

08. The petition is disposed of.

...............................

DR. A.K.RATH, J.

Orissa High Court, Cuttack.

The 28th February, 2017/Puspanjali

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