Orissa High Court
Nrusingha Behera vs Kalinga Institute Of Industrial .... ... on 22 April, 2024
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP NO. 100 OF 2024
Nrusingha Behera .... Petitioner
Mr. Banshidhar Baug, Advocate
-versus-
Kalinga Institute of Industrial .... Opp. Parties
Technology, Bhubaneswar and others
Mr. Bibekananda Bhuyan, Advocate
(For Opp. Party No.2)
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 22.04.2024 4. 1. This matter is taken up through hybrid mode.
2. This CMP has been filed assailing the order dated 15th December, 2023 (Annexure-6) passed by learned Civil Judge (Senior Division), (L.R.), Bhubaneswar in C.S. No.1531 of 2012, whereby an application filed by the Petitioner under Order XI Rules 1 and 2 C.P.C. to answer certain interrogatories more- fully described in the petition under Annexure-4 has been rejected.
3. Mr. Baug, learned counsel submits that the suit has been filed by the Petitioner for a declaration that registered sale deed dated 12th January, 2011 executed by Defendant Nos.2 to 6 alienating Schedule 'B' land in favour of Defendant No.1 to be null and void and not binding on the Plaintiff. A decree for permanent injunction has also been sought for. The Petitioner being the Plaintiff pleaded that the Defendant No.2, namely, Brajaraj Das, styling himself to be the son of Kulamani Behera, executed a sale deed along with Defendant Nos.3 to 6 in favour of Defendant No.1. The Defendant No.2-Opposite Party No.2, namely, Brajaraj Das, is the natural son of Kulamani Behera and Page 1 of 6 // 2 // he was adopted to one Rajakishore Das of Khurda, when he was two years old performing the rituals and ceremony of adoption as per Hindu Rites and Custom. Thus, he has no semblance of right, title and interest on the property of Kulamani Behera as he has already been adopted to one Rajakishore Das. Describing himself to be the son of Kulamani Behera, the Defendant No.2- Opposite Party No.2 along with Defendant Nos. 3 to 6 executed the sale deed in question in respect of joint family property of Kulamani Behera in favour of Defendant No.1. Hence, the suit is filed for the aforesaid relief. In all educational records and service records including revenue records, the Opposite Party No.2 has been described as the son of Rajakishore Das. The Defendant Nos.2 to 6 filed a joint written statement denying the averments made in the plaint. Since the documents and information basing upon which the Petitioner is seeking relief in the suit are within the knowledge of Defendant No.2, an application was filed for calling for certain documents more- fully described in the said petition to establish that the Petitioner was the son of Rajakishore Das and not of Kulamani Behera. Said application was rejected vide order dated 2nd December, 2022. Assailing the same, the Petitioner preferred CMP No.103 of 2023, which was disposed of vide order dated 22nd February, 2023 with the following direction:
"4. Considering the submission made by learned counsel for the Petitioner and averments made in the plaint, written statement as well as the petition under Annexures-3 and 4, this Court is of the considered opinion that in the facts and circumstances of the case, interest of justice may be served by filing the application under Order XI Rules 1 and 2 C.P.C. by delivering interrogatories in writing.
5. In view of the above, this Court, without expressing any opinion on the merit of the impugned order, Page 2 of 6 // 3 // disposes of the CMP with an observation that in the event the Petitioner files a properly constituted application under Order XI Rules 1 and 2 CPC the same shall be considered in accordance with law giving opportunity of hearing to the parties concerned without being influenced by the observation made in the impugned order."
4. Accordingly, the Petitioner filed an application under Order XI Rules 1 and 2 C.P.C. (Annexure-4) requiring the Defendant No.2-Opposite Party No.2 to answer certain interrogatories more-fully described therein. Learned trial Court rejected the said application relying upon the decision in the case of Raj Narain -v- Smt. Indira Nehru Gandhi and another, reported in AIR 1972 SC 1302, wherein it is held that the questions those are relevant during cross-examination are not necessarily relevant as interrogatories. The only questions that are relevant as interrogatories are those relating to "any matter in question.".
5. Mr. Baug, learned counsel for the Petitioner further submits that the ratio decided in the case of Raj Narain (supra) is not applicable to the case at hand. It is his submission that an interrogatory can be delivered even before filing of the written statement. In the written statement, the Defendant Nos.2 to 6 denied the case of the Plaintiff. They have not specifically admitted that Brajaraj Das has been described as the son of Rajakihsore Das in all educational, revenue as well as official records. In order to establish the same, these interrogatories are to be answered. Learned trial Court failed to appreciate the same and passed the impugned order.
6. Mr. Baug, learned counsel further submits that right from the childhood, the Defendant No.2-Opposite Party No.2 Page 3 of 6 // 4 // has been described as the son of Rajkishore Das. Thus, by getting a collusive decree in C.S. No. 938 of 2008, the Defendant No.2-Opposite Party No.2 is trying to portray himself as the son of Kulamani Behera. He, therefore, prays for setting aside the impugned order and to direct learned trial Court to allow the petition under Order XI Rules 1 and 2 C.P.C.
7. Mr. Bhuyan, learned counsel for the contesting Opposite Party No.2 vehemently objects to the same and submits that the issue in the suit is with regard to adoption of Brajaraj Das by Rajakishore Das. If the Plaintiff will be successful in establishing that adoption of Brajaraj Das by Rajakishore Das was not legal, then relief sought for in the suit may be considered in his favour. Since the Plaintiff-Petitioner has himself stated that the Defendant No.2-Opposite Party No.2 has described himself as the son of Rajakishore Das in all educational, revenue and official as well as service records, burden is on him to prove the same. He may cross-examine the Defendants on the said issue, if so advised. But, in no case, that can be a ground to deliver the interrogatories to the Defendant- Opposite Party No.2-Opposite Party No.2 to answer. He, therefore, submits that learned trial Court has committed no error in rejecting the petition relying upon the decision in the case of Raj Narain (supra).
8. Taking into the consideration the submissions made by learned counsel for the parties and on perusal of the record, it appears that the Plaintiff-Petitioner has categorically stated in the plaint that the Defendant No.2 is the natural born son of Kulamani Behera and he was adopted by one Rajakishore Das of Khurda when he was only two years old on due performance of Page 4 of 6 // 5 // adoption rituals and ceremony as per Hindu Rites and Custom. It is also pleaded that the Defendant No.2 is known as the son of said Rajakishore Das in all official records including voter list. It is also stated that the Defendant No.2 enjoyed all benefits as the son of his adoptive parents and in his service records also, he is known as the son of Rajaksihore Das. The Defendants by filing a joint written statement denied the allegations made in the plaint stating that "it is not a fact that the Defendant No.2 is known as the son of Rajkishore Das in all official records including his service records and voter list. It is also not a fact that the Defendant No.2 is enjoying all benefits as the son of Rajkishore Das. It is also not correct to say that the Defendant No.2 has acquired village movable and immovable properties as the son of Rajkishore Das." But, in the subsequent paragraph, the Defendants have stated that the Defendant No.2 is the eldest son of Kulamani Behera and Tulasi Behera (Defendant No.3). During childhood, the Defendant No.2 was residing at his maternal grandfather's house and started his educational career there. During his first admission into the village school, his maternal grandfather, Rajkishore Das, inadvertently mentioned his name as father of Defendant No.2 in place of Kulamani Behera. The Defendant No.2 continued his education in the same name. After completion of education, he returned back to his natural father and mother and resided with them along with his siblings. It is also stated that the Defendant No.2 thereafter corrected his father's name as Kulamani Behera in the voter list etc.
9. In view of the above, burden lies on the Plaintiff- Petitioner to prove that Brajaraj Das, Defendant No.2, was Page 5 of 6 // 6 // validly adopted by Rajakishore Das. Incidental question with regard to recording of the name of his father as Rajakishore Das in all educational, revenue, official and service records may be put to Defendant No.2 in his cross-examination. Thus, it is not necessary to deliver those interrogatories to be answered by Defendant No.2. In that view of the matter, when the Plaintiff- Petitioner has a scope to cross-examine Defendant No.2 to get the answer with regard to recording of his father's name as Rajakishore Das, this Court is of the considered opinion that learned trial Court has committed no error in dismissing the application filed under Order XI Rules 1 and 2 C.P.C.
10. Accordingly, the CMP being devoid of any merit stands dismissed.
Urgent certified copy of this order be granted on proper application.
bks (K.R. Mohapatra)
Judge
Signature Not Verified
Digitally Signed
Signed by: BIJAY KUMAR SAHOO
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 24-Apr-2024 19:30:50
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