Orissa High Court
Bijaya Kumar Prusty And Others vs Harekrushna Prusty And Others on 16 March, 2016
Equivalent citations: AIR 2016 (NOC) 415 (ORI.)
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
W.P.(C) No.7364 of 2010
In the matter of an application under Article 227 of the Constitution of India.
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Bijaya Kumar Prusty and others .... Petitioners
Versus
Harekrushna Prusty and others .... Opposite parties
For Petitioners -- Mr.Mahadev Mishra
Sr.Advocate
For Opp. Parties -- None
(For O.P.1)
Mr.S.Mohanty
(For OPs.2 to 5)
Advocate
PRESENT:
THE HON'BLE DR. JUSTICE A.K.RATH
Date of Hearing :04.03.2016 : Date of Judgment:16.03.2016
DR. A.K.RATH, J.In this petition under Article 227 of the Constitution of India, challenge is made to the order dated 2.4.2010 passed by the learned Civil Judge (Sr.Division), Jajpur in T.S.No.200 of 2005, whereby and whereunder, the learned trial court has stayed the further proceeding of the suit till 2 disposal of Consolidation Revision No.22 of 2010 on the file of the Commissioner of Consolidation, Orissa, Cuttack.
2. The petitioners as plaintiffs instituted T.S.No.200 of 2005 before the learned Civil Judge (Sr.Division), Jajpur for partition of the suit schedule land impleading the opposite parties as defendants. While the matter stood thus, defendant no.1-opposite party no.1 filed an application under Section 4(4) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter referred to as "the Act") to stay the further proceeding of the suit till disposal of Consolidation Revision No.22 of 2010. It is stated that suit has been filed for partition of the suit land. He filed an application under Section 37 (1) of the Act before the Commissioner of Consolidation, Orissa, Cuttack, which is registered as Consolidation Revision No.22 of 2010. With this factual scenario, a prayer has been made for abetment of the suit. The plaintiffs objected to the said petition. The learned trial court by order dated 2.4.2010 disposed of the application and stayed the further proceeding of the suit till disposal of Consolidation Revision No.22 of 2010.
3. Heard Mr.Mahadev Mishra, learned Sr.Advocate for the petitioners and Mr.S.Mohanty, learned Advocate for opposite parties 2 to 5. None appeared for opposite party no.1.
4. Mr.Mishra, learned Sr. Advocate for the petitioners submitted that consolidation operation in the area was closed and, accordingly a notification under Section 41 of the Act was issued. Pattas had been distributed to the land owners. After seventeen years of closure of consolidation operation, consolidation revision was filed by defendant no.1. The consolidation operation has crossed the stage of issuance of notification 3 under Section 15 of the Act. In order to harass the plaintiffs, defendant no.1 made a sinister attempt to protract the litigation.
5. In Gulzar Khan Vrs. Commissioner of Consolidation and others, 76 (1993) C.L.T.161, the Full Bench in paragraph-38 of the report held that despite closure of the consolidations operation which would be result of the notification under Section 41 of the Act, power under Section 37 would be available. Whether in a particular case the same would be exercised shall have to be decided by the Consolidation Commissioner depending upon the facts and circumstances of that case.
6. Though the learned trial court bestowed its attention to Section 4 (4) of the Act, but essentially it has exercised the inherent power under Section 151 C.P.C. to stay the further proceeding of the suit.
7. It is trite that mentioning of a wrong provision or non- mentioning of any provision of law would, by itself, be not sufficient to take away the jurisdiction of a court if it is otherwise vested in it in law. While exercising its power, the court will merely consider whether it has the source to exercise such power or not. (J.Kumardasan Nair Vrs. Iric Sohan and others (2009) 12 SCC 175.
8. The question does arise as to whether further proceeding in the suit shall remain stayed till disposal of Consolidation Revision No.22 of 2010 on the file of the Commissioner of Consolidation, Orissa, Cuttack ?
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:-
4"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 of O.E.A. Appeal No.5 of 2001 in exercise of the jurisdiction under Section 151 CPC."
10. The subject matter of dispute in the suit as well as consolidation revision is same, so also the parties. In view of the nature of dispute and the prayer made in the suit, the learned trial court has rightly stayed the further 5 proceeding of the suit till disposal of Consolidation Revision No.22 of 2010. The view taken by the learned trial court cannot be said as perfunctory or flawed.
11. The Commissioner of Consolidation, Orissa, Cuttack is directed to conclude the hearing of Consolidation Revision No.22 of 2010 within a period of six months from the date of production of certified copy of the judgment. Thereafter the learned trial court shall proceed with the suit.
The petition is disposed of.
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Dr.A.K.Rath, J.
Orissa High Court, Cuttack.
The 16th March, 2016/CRB.
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