Orissa High Court
Asish Kumar Jajodia vs Phooldevi Agrawalla And Others .... ... on 8 August, 2023
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
Signature Not Verified
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 09-Aug-2023 17:14:53
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 802 OF 2023
Asish Kumar Jajodia .... Petitioner
Mr. Maheswar Mohanty, Advocate
-versus-
Phooldevi Agrawalla and others .... Opp. Parties
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 08.08.2023
01. 1. This matter is taken up through hybrid mode.
2. Mr. Mohanty, learned counsel for the Petitioner is permitted to correct his enrollment number on the body of the CMP.
3. Order dated 26th June, 2023 (Annexure-1) passed by learned 1st Additional Civil Judge (Senior Division), Bhubaneswar in C.S. No.1465 of 2016 is under challenge in this CMP, whereby an application filed by the Petitioner to take up C.M.A. No.98 of 2019 filed for restoration of the suit before commencement of trial on the counter claim, has been rejected.
4. Mr. Mohanty, learned counsel submits that the Plaintiff is the Petitioner in this CMP. The suit has been filed for declaration of right, title and interest. The Plaintiff-Petitioner does not claim any relief against Defendant Nos.6 and 7. All other Defendants have already entered appearance in the suit. Defendant Nos.1 to 4 have filed their written statement along with the counter claim. At that juncture, the suit was dismissed for non-prosecution on 5th August, 2019. An application under Order IX Rule 9 C.P.C. was filed on 27th August, 2019 which Page 1 of 3 Signature Not Verified // 2 // Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Aug-2023 17:14:53 has been registered as C.M.A. No.98 of 2019. Learned trial Court is not taking up C.M.A. No.98 of 2019 on the plea that all the Opposite Parties thereto have not yet entered appearance. In the meantime, learned trial Court proceeded to commence the trial on counter claim filed by Opposite Party Nos.1 to 4. Hence, the Petitioner filed an application on 26th June, 2003 under Annexure-3 to take up the petition under Order IX Rule 9 C.P.C. before commencement of trial on the counter claim. Objection to the said petition was filed by Defendant Nos.1 to 4 stating that the Plaintiff-Petitioner is avoiding for early disposal of the counter claim by taking different plea and to harass the Opposite Parties. Learned trial Court holding the proceeding in a counter claim is distinct from the suit itself and trial of counter claim should not be stalled till disposal of the CMA filed for restoration of the suit, dismissed the said petition.
5. It is submitted by Mr. Mohanty, learned counsel for the Petitioner that since the contesting Defendants have already entered appearance, there is no difficulty to take up C.M.A. No.98 of 2019 filed for restoration of the suit. Propriety demands that the evidence in the suit should be recorded before recording of the evidence in the counter claim. Since the suit has been dismissed for default, learned trial Court is proceeding with the trial of counter claim. He, therefore, prays for setting aside the impugned order under Annexure-1 and to direct learned trial Court to take up C.M.A. No.98 of 2019 before commencement of trial of the counter claim.
6. Considering the submission made by learned counsel for the Petitioner and order proposed to be passed in this CMP, this Court feels that no purpose will be served by keeping this CMP Page 2 of 3 Signature Not Verified // 3 // Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Aug-2023 17:14:53 pending awaiting response from the Opposite Parties. It is also appears that Defendant Nos.6 and 7 are the proforma Defendants. If the contesting Defendants have already entered appearance in C.M.A. No.98 of 2019, there is no difficulty on the part of the Court to adjudicate the said petition filed for restoration of the suit. Thus, instead of adhering to hyper technicalities, learned trial Court should have disposed of C.M.A. No.98 of 2019 before taking steps for commencement of trial on the counter claim.
7. In view of the above, the impugned order under Annexure-1 is set aside and the CMP is disposed of with an observation that if the contesting Opposite Parties in C.M.A. No.98 of 2019 have already entered appearance, the same should be disposed of at an early date in accordance with law before commencement of trial on the counter claim.
8. Since the CMP is disposed of without issuing notice to the Opposite Parties, they are at liberty to move this Court for variation of this order, if they feel aggrieved.
Urgent certified copy of this order be granted on proper application.
(K.R. Mohapatra)
ms Judge
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