Orissa High Court
Sk. Asad Alli vs Dhruba Charan Das And Another on 18 May, 2016
Author: B.R.Sarangi
Bench: Vineet Saran, B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
W.A. No. 224 of 2014
In the matter of appeals under Article 4 of Orissa High Court Order, 1948
read with Clause-10 of the Letter Patent and Chapter-III, Rule-6 of Orissa
High Court Rules.
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AFR
Sk. Asad Alli ......... Appellant
-versus-
Dhruba Charan Das & another ......... Respondent
For Appellant : Mr. Ranjan Kumar Rout
For Respondent Nos. 1 & 2 : M/s. B. H. Mohanty (Sr.Adv)
T.K. Mohanty, P.K. Swain &
M. Pal.
For Respondent Nos.3-5 : Mr. B.P. Pradhan,
Addl. Government Advocate
PRESENT:
HONOURABLE THE CHIEF JUSTICE SHRI VINEET SARAN
AND
THE HONOURABLE DR. JUSTICE B.R.SARANGI
Date of hearing: 05.05.2016| Date of judgment : 18.05.2016
Dr. B.R.Sarangi, J.This is an intra-Court appeal preferred by the appellant to set aside the order dated 18.06.2014 passed by the learned single Judge in CMP No.74/2014 setting aside the order dated 21.01.2014 passed by 2 the learned Civil Judge (Sr. Division), Kendrapara rejecting the plaint filed by the respondents in C.S. No.487/2013.
2. The factual matrix of the case in hand is that the Ex- Landlord, Kiran Kumar Mitra and his co-sharers inducted the grandfather of the appellant as a tenant by accepting rent and salami in respect of Sabik Plot No.352 under Sabik Khata No.228 corresponding to Hal Plot No.642 under Hal Khata No.458 and LR Plot No.537/1020 measuring area Ac. 0.05 decimal. The suit property was converted to Bari from Anabadi land and a house was constructed over the same wherein his family has been living by earning their livelihood from Tin business. In 1949 the appellant's grandfather expired and his son Sk. Wadu (father of appellant) went on possessing the suit property along with the residential house. In a family settlement in 1972 the suit property fell to the share of the appellant whereafter he continued to possess the same as the residence and Tin shop. Consequently, the appellant had acquired occupancy right over the suit property in terms of Section 23 of the Orissa Tenancy Act. When the suit property was wrongly recorded in favour of the State, the appellant filed Title Suit No.219/1997 on 29.07.1997 in the court of Civil Judge (Sr. Division), Kendrapara praying for declaration of his occupancy right over the suit land. The said suit was decreed on contest declaring the title of the appellant over the suit property on 07.11.2000. Against such decree, the State and Tahasildar preferred Title Appeal No.1/2001 which was dismissed on 17.01.2003 declaring the occupancy right of the appellant over the suit property. 3
Respondent no.1 purchased a piece of land from one Ratnakar Sethy on 08.01.2004 which was adjacent to the suit property and as such he had never objected to the possession of the appellant over the suit property on the basis of the aforesaid civil court decree. The suit property was mutated in the name of the appellant on the basis of the aforesaid decree of the civil court in Mutation Case No.1059/2005. More so, in mutation proceeding also no objection was filed by respondent no.1 and as such Tahasildar admitted the decree of the civil court and mutated the suit property in favour of the appellant by accepting the title. Subsequently, respondent no.1 purchased a portion of the suit property (8 Kadies) from the appellant on 08.01.2007 admitting his right, title, interest and possession and the sale deed clearly disclosed all the aforesaid pending litigations. Respondent no.1 was very much a signatory to the aforesaid sale deed wherein there was a clear description of the concluded civil litigations which had remained unchallenged. Respondent no.1 mutated his aforesaid purchased property of 8 Kadies pursuant to the order dated 10.08.2007 in Mutation Case No.793/2007 and mutation ROR bearing No.435/105 under separate plot No.462/1194 was issued and accordingly, rent was paid separately. At this point of time, respondent no.1 filed C.S. No.487/2013 on 07.11.2013 to set aside the judgment and decree dated 17.11.2000 passed in C.S. No.219/1997 and in T.A. No.1/2001 along with other prayers. He also filed Second Appeal (RSA No.417/2013) on 11.11.2013 challenging the judgment and decree dated 17.11.2000 passed in C.S. No.219/1997 and in T.A. 4 No.1/2001 along with Misc. Case No.789/2013 praying for leave to appeal and Misc. Case No.749/2013 for condonation of delay. In the Second appeal, respondent no.1 did not disclose the fact that he had already preferred C.S. No.487/2013 to set aside the judgment and decree dated 17.11.2000 passed in C.S. No.219/1997 and T.A. No.1/2001 along with other prayers. When the suit was taken up for admission, during course of hearing, the appellant appeared suo motu and raised objection stating that this is not a case to be admitted in support of which he relied upon certain documents and by order dated 13.11.2013, learned Civil Judge (Sr. Division), Kendrapara after perusal of the documents, rejected the plaint under Order-7 Rule-11 of CPC. The respondents filed W.P.(C) No.25693/2013 on 22.11.2013 challenging the order dated 13.11.2013 passed by the learned Civil Judge (Sr. Division), Kendrapara in C.S. No.487/2013 rejecting the plaint under Order-7 Rule- 11 of CPC. But, in the writ petition also, respondent no.1 did not disclose the pendency of Second Appeal No.417/2013. This Court also in the said writ petition without being aware of the filing of Second Appeal No.417/2013 disposed of the said writ petition vide order dated 11.12.2013 directing for rehearing of the matter with regard to rejection of the plaint and also directing the parties to maintain status quo till disposal of the suit.
The appellant preferred W.A. No.521/2013 on 13.12.2013 challenging the order dated 11.12.2013 passed in W.P.(C) No.25693/2013. This Court by order dated 18.12.2013 in W.A. 5 No.521/2013 vacated the order of status quo passed in W.P.(C) No.25693/2013, but sustained the direction for re-hearing of the matter. On 08.01.2014, both the appellant and respondent no.1 were heard by the learned Civil Judge (Sr.Division), Kendrapara and vide order dated 21.01.2014 in C.S. No.487/2013 the plaint was not admitted again by the trial court which was assailed by respondent no.1 before this Court in CMP NO.74/2014. Learned single Judge vide impugned order dated 18.06.2014 allowed CMP No.74/2014 and directed the trial court to hear both the parties on the question of admission of the plaint and further directed to maintain status quo over the suit land till disposal of the suit. Hence this appeal.
3. Mr. R.K. Rout, learned counsel for the appellant strenuously urged that the rejection of the plaint vide order dated 21.01.2014 under Order-7 Rule-11 of the CPC being a decree having been done by the learned Civil Judge (Sr. Division), Kendrapara in C.S. No.487/2013 is appealable one. Instead of preferring appeal before the appropriate forum, CMP application filed by the respondents before this Court is not maintainable and if any order is passed by the learned single Judge in CMP No.74/2014, the same is without jurisdiction. More so, in a writ application the error committed by the learned single Judge has to be rectified. Consequently, the appellant seeks to quash the order dated 18.06.2014 passed by the learned single Judge in CMP No.74/2014. To substantiate his contention he has relied upon Pravasini Behera v. Sankar Das and seven others, 2008(I) OLR 783.
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4. Mr. B.H. Mohanty, learned Senior Counsel appearing for respondent nos.1 and 2 raises preliminary objection with regard to maintainability of the writ appeal before this Court. It is urged that the order dated 18.06.2014 passed by the learned single Judge in C.M.P No.74/2014 having been passed in exercise of power conferred under Article 226 of the constitution of India, against the said order no writ appeal lies. In order to substantiate his case, he has relied upon Jogendrasinhji Vijaysinghji v. State of Gujarat & Ors., 2015(II) CLR (SC) 209: (2015) 9 SCC 1 and Asheema Samantray v. Namita Singh & others, 2015(II) OLR 200.
5. Mr. B.P. Pradhan, learned Additional Government Advocate assists this Court with regard to maintainability of the writ appeal and relies upon Mahammed Saud and Ors. V. Dr.(Maj) Shaikh Mahfooz, 2008(II) OLR (FB) 725, Radhey Shyam & another v. Chhabi Nath and others, (2015) 5 SCC 423, Himalayan Coop.Group Housing Society v. Balwan Singh and others, (2015) 7 SCC 373 and Jogendrasinhji Vijaysinghji v. State of Gujarat & Ors., (2015) 9 SCC 1.
6. On the basis of the facts pleaded above, the following questions emerge for consideration
(i) Whether the writ appeal preferred by the appellant is maintainable or not ? and 7
(ii) Whether the learned single Judge is justified in passing the impugned order dated 18.06.2014 in C.M.P. NO.74 of 2014 ?
7. Since both the questions are inter-linked with each other, they are taken up together for consideration.
8. The apex Court has taken into consideration in various judgments to consider the matter of maintainability including the judgment of Radhey Shyam & another (supra), Himalayan Coop.Group Housing Society (supra) and finally in Jogendrasinhji Vijaysinghji (supra) and summarizes the conclusion in paragraph 45 of the said judgment which is quoted below:
"45. In view of the aforesaid analysis, we proceed to summarise our conclusions as follows:
45.1. Whether a letters patent appeal would lie against the order passed by the learned single Judge that has travelled to him from the other tribunals or authorities, would depend upon many a facet. The court fee payable on a petition to make it under Article 226 or Article 227 or both, would depend upon the rules framed by the High Court.
45.2. The order passed by the civil court is only amenable to be scrutinized by the High Court in exercise of jurisdiction under Article 227 of the Constitution of India which is different from Article 226 of the Constitution and as per the pronouncement in Radhey Shyam, no writ can be issued against the order passed by the civil court and, therefore, no letters patent appeal would be maintainable.
45.3. The writ petition can be held to be not maintainable if a tribunal or authority that is required to defend the impugned order has not been arrayed as a party, as it is a necessary party.8
45.4. The tribunal being or not being party in a writ petition is not determinative of the maintainability of a letters patent appeal".
9. In view of the law laid down by the apex Court in Jogendrasinhji Vijaysinghji (supra), the present order has to be tested on the basis of the analysis so made in paragraph-45 of the said judgment. Admittedly, the plaint filed in C.S. No.487/2013 by the respondents as plaintiff having been rejected under Order-7 Rule-11 of the CPC, the same became a decree, the respondents should have availed the remedy under the CPC by preferring appeal against such decree. But, it appears that respondents have preferred CMP No.74/2014 before this Court challenging the said order dated 21.01.2014 passed by the learned Civil Judge (Sr. Division), Kendrapara rejecting the plaint in C.S. No.484/2013. With great respect, we are of the opinion that the learned Single Judge has not taken into consideration the nature of order passed by the learned Civil Judge (Sr. Division), Kendrapara. It appears that CMP No.74/2014 has been filed under Article 227 of the Constitution of India. If the alternative remedy is available under the CPC by preferring appeal, in that case the CMP under Article 227 of Constitution of India could not have been entertained. While entertaining the CMP application vide order dated 07.02.2014, this Court specifically mentioned as follows:
"Mr. B.N. Rath, learned counsel for the petitioners states that the defect pointed out by the Stamp Reporter in defect no.23 is not required to be removed in view of the fact that is not a decree, therefore, the 9 CMP is maintainable. In any case that question can be considered at the time of hearing."
10. In view of the specific order with regard to consideration of maintainability of CMP at the time of hearing passed in order dated 07.02.2014, notice was issued. In that case, learned single Judge could have decided the question of maintainability in compliance to the order dated 07.02.2014 and proceeded with the matter thereafter. Because of non-consideration of maintainability of CMP application, the impugned order so passed on 18.06.2014, in our view, cannot sustain in the eye of law.
11. The order dated 21.01.2014 passed by the learned Civil Judge (Sr. Division), Kendrapara in C.S. No.487/2013 rejecting the plaint under Order-7 Rule-11 is appealable one. Learned single Judge has committed an error which is apparent on the face of the record by disposing of CMP No.74/2014 on 18.06.2014, which cannot sustain in the eye of law in view of the fact that CMP has been titled as an application under Article 227 of the Constitution of India, but effectively considering the nature of order passed by the learned single Judge it is one under Article 226 of the Constitution of India. While considering the writ appeal, if the order impugned clearly indicates a nullity in the eye of law, then this Court has no other option than to quash the same directing the parties to avail the remedy as envisaged under the law instead of approaching this court in exercise of jurisdiction under Article 227 of Constitution of India.
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12. In view of the aforesaid facts and circumstances, we are of the considered view that the impugned order dated 18.06.2014 passed by the learned single Judge in CMP No.74/2014 cannot sustain in the eye of law as the same is without jurisdiction and nullity in the eye of law. Hence, the same is hereby quashed
13. The writ appeal is allowed. No order to cost.
Sd/-
Dr.B.R.Sarangi, J.
Vineet Saran, C.J. I agree Sd/-
Vineet Saran,C.J.
Orissa High Court, Cuttack The 18th May, 2016/Alok True Copy Sr. Steno