Brahmananda Ray Since Dead His Legal ... vs Ashamani Devi Since Dead Her Legal Heirs on 9 October, 2020

[Cites 8, Cited by 0]

Orissa High Court

Brahmananda Ray Since Dead His Legal ... vs Ashamani Devi Since Dead Her Legal Heirs on 9 October, 2020

Bench: Biswanath Rath

ORISSA HIGH COURT: CUTTACK

O.J.C. No.3613 of 1994

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

----------
Brahmananda Ray since dead his legal heirs
Bhikari Ray & others ... ... ... Petitioners

-versus-
Ashamani Devi since dead her legal heirs
Premananda Nayak and others ... ... ... Opp. Parties

For Petitioners : M/s.B.Biswal, R.Biswal,D.K.Biswal,
M.R.panda, B.K.Choudhury,
B.N.Mohapatra, S.Mohanty,
P.K.Das, S.Karim and P.R.Chhatoi.

For Opp. Parties : Mr. D.Mohapatra,
G.R.Mohapatra,A.Dash
& A.Patnaik.

Date of Hearing: 11.09.2020
Date of Judgment: 09.10.2020

P R E S E N T:

THE HONOURABLE MR. JUSTICE BISWANATH RATH

Biswanath Rath,J. This is a writ petition involving a challenge to the order dated

14.03.1995 passed by the Commissioner, Consolidation, Bhubaneswar

in Consolidation Revision Case Nos.1942 and 1943 of 1984 moved at

the instance of private opposite parties vide Annexure-16 to the writ

petition.

2. Short recital of the case is that the private opposite parties filed

objection case under Section 9(3) of the Odisha Consolidation of

Holding and Prevention of Fragmentation of Land Act, 1972
2

(hereinafter called herein as "OCH & PFL Act") praying therein to record

the property involved therein in their name. The Consolidation Officer in

disposal of the proceeding was pleased to record the disputed land in

the name of the opposite parties, the applicants therein. When the

matter stood thus, petitioners herein filed two objection cases bearing

Objection Case No.538 of 1983 and Objection Case No.593 of 1983.

The Assistant Consolidation Officer considered the objections under

Section 15 of the OCH & PFL Act and directed to record the same land

in the name of the petitioners herein. Above orders were challenged by

the opposite party no.1 in contest in Revision Case No. 1942 before the

Commissioner, Consolidation. The opposite party no.4 being petitioner

filed another revision bearing Revision Case No.1943 of 1984. Both

the matters were heard together and the Commissioner of

Consolidation finally held that for the existence of order of Orissa Estate

Abolition Authority functioning as Tahasildar vide O.E.A. Misc. Case

No.42 of 1969-70 remain valid and accordingly while holding that

revision petitioners i.e. opposite party no.1 and opposite party no.4

able to satisfy their occupancy right over the disputed land

consequently directed for recording the name of opposite party no.1

and opposite party no.4 involving the disputed land. This order is

available at Annexure-16 and impugned herein.

3. The case of the petitioners in their challenge to the impugned

order at Annexure-16, as claimed in the writ petition and submitted

during course of hearing is that the husband of the opposite party no.1

Surendranath Naik was the ex-intermediary and he executed sale

deed dated 21.08.1959 in favour of his wife Ashamani Devi, the
3

opposite party no.1. This sale deed had the recital that Surendranath

acquired occupancy right over the property which demand is claimed to

have been considered and rejected by this High Court in the disposal

of Second Appeal No.394 of 1950 appearing at Annexure-1.

Accordingly, the petitioner claimed that sale deed indicates herein is a

void one. Further claim of the petitioners is that Makadami Village of

Gadasitha contained Ac.37.44 decimals of Nijchas lands. The

Makadami was abolished under provisions of O.E.A. Act on 11.04.1959

almost all the Nijchas lands were under the cultivating possession of

Bhag Tenants, the petitioners and others. It is just after abolition of ex-

intermediary husband of opposite party no.1 as uncle of opposite party

no.2 and father-in-law of opposite party no.4 transferred the disputed

land by R.S.D. dated 21.08.1959 measuring Ac.9.39 -2./3rd decimals of

land to his wife. Subsequently, the opposite party no.1 also obtained

ekapadia noting therein entry in the name of his son-in-law, the

opposite party no.4 measuring Ac.3.26 decimals of Nijchas lands. For

the remaining land Ac.24.78 decimals and other lands measuring

Ac.0.94 decimals , the ex-intermediary filed O.E.A.No.609 of 1959-60,

a proceeding under Section 7 of O.E.A. Act, for fixation of fair rent on

the ground that these lands were in khas dakhali. The O.E.A. Authority

found out of Nijchas Khata No.10 only Plot No.800, Ac.0.28 decimals,

Plot No.280, Ac.0.13 decimals and Plot No.797/1193, Ac.0.22 decimals

in all Ac.0.063 decimals to be his khas dakhali and then while directing

recording of above lands with him, the balance land Ac.24.15 decimals

were held to be in cultivating possession of the Bhagchasi as

appearing at Annexure-3. It is further claimed that Bhagchasi including
4

petitioner in all were 36 persons, who were paying the share of the

bhag produced to the ex-intermediary and used to obtain receipts.

They all continued to pay bhag to State as the Landlord and used to

obtain receipt from Revenue Inspector vide Annexure-4 and by ex-

intermediary vide Anenxure-5. It is claimed that though the bhagchasis

filed application under Section 4(2) and sub-Rule 1 of Rule 10 of O.L.R.

Act to declare them as tenants under the State, but the said proceeding

was kept pending and the case of ex-intermediary was taken up for

hearing. After the decision in O.E.A. Case No.609 of 1959-60, ex-

intermediary filed O.E.A. Appeal No.36 of 1966 before the A.D.M., Puri,

which was dismissed vide Annexure-6. Ex-intermediary filed O.E.A.

Case No.77 of 1968 and the Member, Board of Revenue dismissed the

said case on 26.4.1969, vide Anenxure-7. It is averred that in the

meantime ex-intermediary Surendranath filed O.J.C.No.673 of 1969 in

this High Court which was dismissed on 08.08.1969, vide Annexure-9.

It is further stated that only after the above developments, ex-

intermediary S.N.Naik got a deed of partition executed between

opposite party no.1 and his nephew-opposite party nos.2 and 3 in

respect of land covered by the sale deed in favour of the opposite party

no.1 and partitioned the lands between them. It is accordingly claimed

that on the basis of above invalid partition deed, opposite party nos.2

and 3 filed an application before the S.D.O., Puri and prayed to direct

the Tahasildar to get their names mutated and realize rent from them. It

is at this stage, the Tahasildar on the other hand initiated a suo motu

proceeding bearing M.C.No.38 of 1981 and mutated the names of the

applicants and instructed the Revenue Inspector to realize rent from
5

them. Bhagchasis being aggrieved by such action of the Tahasildar

filed M.A.No.4 of 1982. The opposite parties instead of waiting for the

outcome in the appeal rather filed objection case and it is alleged that

the Consolidation Officer ignoring all the above developments illegally

and without jurisdiction passed order directing recording of the name of

opposite parties involving the disputed land in the land register. On an

appeal, the S.D.O. passed order for realization of rent from the opposite

party nos.1 to 3, vide Annexure-10. Failing to get relief, opposite party

nos.1 to 3 filed O.E.A. Revision No.80 of 1983 before the Member,

Board of Revenue to set aside the order of the appellate authority dated

03.08.1983. The Board of Revenue disposed of the matter observing

that payment of rent by any party could not confer any right and there is

no obstruction on the opposite parties also in paying the rent. It is in the

above premises, petitioners in different sets filed 19 O.L.R. Cases. In

disposal of all these cases, there is decision in favour of bhagchasis

and bhagchasis were recognized as occupying rayati as appearing at

Anenxrue-11. By filing separate application under Section 15 of the

OCH & PFL Act, petitioners got their names recorded in the land

challenged by opposite party nos.1 & 4, the Consolidation

Commissioner, Bhubaneswar sets aside the order passed by the

A.C.O., vide Annexure-16. The impugned order at Annexure-16 is

challenged claiming that the impugned order remain contrary to the

development through O.J.C.No.673 of 1969 vide Annexure-8, the order

in O.J.C.No.639 of 1972 at Annexure-9 and the order passed in

S.A.No.394 of 1950. It is further alleged that the impugned order also
6

contrary to the orders vide Annexures-6 and 11. It is in the above

premises, petitioners in the first instance filed O.J.C.No.113 of 1987 in

this High Court and the same was dismissed for default on account of

non-appearance of the counsel. As it appears from the further pleadings

as against the dismissal of the writ petition for default, petitioner has

preferred M.J.C.No.82 of 1994 for restoration of the previous writ

petition, which was also dismissed and after about nine years of

passing of the impugned order, vide Annexure-16, this writ petition has

been instituted. On the issue of writ petition being filed on delay and

being second successive writ petition on the self same issue, learned

counsel for the petitioners contended that for technical disposal of first

writ petition and also technical dismissal of M.J.C.No.82 of 1994, the

filing of present writ petition cannot be held to be suffering by delay and

latches. But unfortunately no party is in position to bring copy of the

order in M.J.C. No.82 of 1994 except petitioner stating in paragraph-14-

B that same has been dismissed for default again. In the process

learned counsel for the petitioners also relied on a decision of Hon'ble

Apex Court in the case of Rafiq & another Vs. Municilal & another

reported in A.I.R. 1981 S.C. 1400 and urged allowing the writ petition in

the above premises.

4. Advancing his submission, Sri Dayananda Mohapatra, learned

counsel appearing for the contesting opposite parties raised three fold

submissions, i.e. in the 1st stage Sri Mohapatra for the dismissal of

earlier writ petition and the M.J.C. petition against the very same

impugned order, there is no scope for initiating a 2nd writ petition.

Further on the premises that nine years have already been passed by
7

the time of institution of 2nd writ petition on self same issue. Sri

Mohapatra, learned counsel, also contended that the successive writ

petition also hit by delay and latches and accordingly should be

dismissed on this account also. The 3rd limb of argument of Sri

Mohapatra, learned counsel touching merit involving the matter is that

the order passed in the Second Appeal and previous writ petition in

1972 since contested on different aspects has nothing to do with this

case. It is also contended by Sri Mohapatra that Commissioner,

Consolidation while deciding O.E.A. Case No.42 of 1969-70 considered

the spot visit report of the Tahasildar himself where he found physical

possession of the contesting opposite parties herein over the disputed

land and tenant under the State Government and accordingly allowing

the aforesaid case, the Tahasildar not only opened the Tenancy ledger

favouring opposite parties but was also pleased to reject the counter

clam of the present petitioner vide O.L.R. Case Nos.414, 415, 416, 412,

411, 433, 452, 221, 419, 422 and 423 of 1965-66. Sri Mohapatra taking

this Court to the further development taken place in the meantime

submitted that there has been carving of chaka since 1987 and

interference in the chaka is strictly prohibited under law. Further, taking

this Court to the status quo order being passed by this Court on

entertainment of this writ petition, for the possession of the disputed

land remaining in favour of the opposite parties for more than several

decades, Sri Mohapatra, learned counsel urged for rejection of the writ

petition otherwise. While referring to the provision at Order 9, Rule 9 of

the Code of Civil Procedure, Section 141 of the Code of Civil Procedure

and the decisions in the case of Puran Singh Vs. State of Punjab,
8

AIR 1996 S.C. 1092, M/s. Adarsh Palace Private Limited and

Another Vs. Somnanath Dwivedi & Others, 2009 (Supp-1) O.L.R.

902, D.Sangya Naik Vs. Department of Telecom by its Head, I.L.R.

2005 KAR 1874, Public Service Commission, Uttaranchal Vs.

Mamta Bisht and Others, (2010) 12 SCC 204 and in the case of IV

(2005) C.L.T. (DB) 70 in S.P.Garg Vs. L.I.C. & Others, Sri Mohapatra,

learned counsel attempted to justify his submission on the dismissal of

the writ petition on the ground of maintainability and limitation as well.

Referring to different annexures referred to the writ petition, Sri

Mohapatra, learned counsel referring through the opposite parties

written notes of submission particularly in paragraph-C therein

attempted to establish that many of the annexures has no relevancy to

the case at hand and Sri Mohapatra accordingly contended that

reference of these annexures is made only to confuse the mind of the

Court and is an misleading attempt. Sri Mohapatra, learned counsel

for the contesting opposite parties lastly taking this Court to the

discussions of the Commissioner vide Annexure-16 submitted that there

is clear finding arrived at by the Commissioner not only that for there is

no order illegal or perverse to the materials available on record, there is

no scope for interference of this Court in the impugned order. Sri

Mohapatra, learned counsel for the contesting opposite parties,

accordingly prayed for dismissal of the writ petition on both count.

5. Sri Behera, learned Additional Standing Counsel for the State

while supporting the stand taken by Sri Mohapatra and for clear finding

of the authority below submitted that there is no infirmity in the
9

impugned order requiring interference in the same by this Court and

thus made a request for dismissal of the writ petition.

6. From the above, this Court finds deciding this writ petition, this

Court is required to answer the following three issues:

A) - If the second writ petition is maintainable for already
dismissal of the first writ and the M.J.C., on the self
same issue?

B) - If this writ petition is hit by delay and latches:

C) - If the impugned order at Annexure-16 is bad and
required interference?

7. From the pleadings of the parties and on perusal of materials

placed by both the sides, petitioners' claim so far it relates to this

Court's judgment in the Second Appeal No.394 of 1950, this Court finds

the suit involved therein involved a claim of title in between Surendra

and Bamadeba, whereas present litigation involves claim of right in

between Surendra and present petitioners thus the judgment involving

Second Appeal has nothing to do with the case at hand. Similarly, the

claim of the petitioners involving development through Annexure-3, this

Court again finds dispute involved therein relates to settlement of land

under Khata No.12 already vested in Government except Ac.0.93

decimals which was already settled in the name of contesting opposite

parties, which land is not admittedly subject matter of the present

dispute, thus also making the order vide Annexure-3 not applicable to

the case at hand thereby rendering development through Annexures-4

and 5 also not applicable to the case at hand. Similarly, Annexure-6,

decision since involving appeal as against orders vide Anenxures-3, 4

and 5 respectively, is also of no consequence. Similarly, order in
10

Anenxure-8 since arising out of proceeding vide Anenxure-6 is also of

no relevancy to the case at hand. Rent receipts vide Annexures-12, 13

and 14 are all without prejudice to the claims of respective parties are

also of no relevancy. It is at this stage of the matter, this Court on

perusal of order at Annexure-16 finds the Consolidation Commissioner

vide paragraph-8 observed as follows:

"8. On 21.8.59 Surendranath Nayak by Registered Sale
Deed No.4696 transferred Ac.9.39 2/3 to his wife
Ashamani Devi who filed Misc. Case No.42 of 69-70.
Tahasildar declared her as tenant U/s. 8(1) of the O.E.A.
Act, 1951 by his order dt.20.5.70. Tenant Ledger was
opened in her favour. O.L.R. Case No.415, 414, 416,
412, 411, 433, 452, 221, 419, 422 and 423 of 1965-66
filed by opposite parties to declare them as bhag tenants
under the petitioners were dropped as the O.Ps. who
were the objectors before the Tahasildar failed to prove
their case. The Tahasildar visited the spot personally and
enquired into the physical possession in presence of both
the parties and observed that except plot no.798, 834, 809
and 327 other plots were under the possession of the
petitioner as tenant under the State Government in
respect of Ac.9.39 2/3 appertaining to Khata No.10.
Against this order, the O.Ps. filed E.A. Misc. Appeal No.
23/70 before the A.D.M. who rejected it for want of
jurisdiction. The O.Ps. filed O.J.C.No.639/72 which the
Hon'ble High Court disposed of on 17.4.74 with the
observations that the order of the Tahasildar U/s. 8(1) of
the Orissa Estate Abolition Act was only a declarotory
order which did not affect the right, title and interest of the
petitioners before the High Court in the disputed lands and
their claim under O.L.R. Act must be decided by the
Tahasildar before whom the O.L.R. Cases pending if they
were maintainable in law."

It is necessary to mention here that petitioners preferred appeal as

against the order in the O.E.A. M.C. No.42 of 1969-70 but lost in the

appeal for want of jurisdiction. Above observation of the Commissioner

since came through a Estate Abolition proceeding remains binding on

all concerned. Further, on entertainment of the present writ petition,

this Court vide order dated 1.6.1994 directed parties involved to
11

maintain status quo in respect of the possession over the disputed

property till final adjudication of the writ petition. This Court therefore

observes, for the possession of contesting opposite parties over

disputed land already held in a O.E.A. proceeding maintained over

several decades cannot be disturbed for mere production of rent

receipts which cannot even create title in favour of the present

petitioners. Further, the present writ petition being filed in the year 1994,

involving an impugned order being passed in the year 1985, the writ

petition at hand also grossly barred by limitation. Thus the writ petition

otherwise also is barred by limitation.

8. This Court here wants to take note of the decision of this Court in

disposed O.J.C. No.113 of 1987 and M.J.C.No.82 of 1994, which runs

as hereunder:

O.J.C. No.113 of 1987

"20.10.92. The case has been in the list yesterday and learned
counsel for the petitioner prays for an adjournment of
the case and the said prayer was rejected.
Notwithstanding our rejection for prayer for
adjournment, when the case is called there was none
to appear for the petitioner. We had ourselves passed
over the matter and taken up other case. The case was
in the Sl.No.1 of the hearing list. Even then when the
case is called, there is none to appear nor any prayer
has been made on behalf of the petitioner for
adjournment.
In the circumstance, the writ application is
accordingly dismissed for non-prosecution."

M.J.C.No.82 of 1994
Note-sheet in between order No.12 and 13 in
O.J.C.No.113 of 1987 clearly indicates that the M.J.C.
No.82 of 1994 was ultimately dismissed(Heard.
Dismissed.)

9. For the technical objection by the learned counsel for the

petitioner on the maintainability of successive writ petition involving
12

same cause of action, this Court finds in the first stage petitioners filed

O.J.C.No.113 of 1987, which got dismissed by order of this Court dated

20.10.92 for non-prosecution. As aggrieved by this order of the High

Court, petitioners admittedly preferred M.J.C. No. 82 of 1994, which

application, as appeared, again got dismissed on merit. On their own

admission, the petitioners did not challenge the above orders in higher

forum and filed this writ petition involving same cause of action. Taking

into consideration the contentions of the petitioners that for no merit

disposal of first writ petition, the second writ petition is maintainable and

the submission of Sri Mohapatra, learned counsel for the contesting

opposite parties that not only the writ petition as against very same

impugned order got dismissed but a M.J.C. petition to restore the writ

petition also got dismissed on merit, further there being no attempt to

reverse the order of this Court in M.J.C., thus making the subsequent

writ petition not maintainable. This Court accordingly finds force in the

submission of Sri Mohapatra. Sri Mohapatra, learned counsel taking

this Court to the provision at Order 9, Rule 9 of the Code of Civil

Procedure, Amended Section 141 of the Code of Civil procedure and

some decisions attempted to justify his such claim. Learned State

Counsel supported the plea taken by Sri Mohapatra.

On scrutiny of judgments referred by the opposite parties, this

Court finds:-

In the case of Puran Singh Vs. State of Punjab, reported in
AIR 1996 S.C. 1092, in paragraphs-9 and 10 of the Hon'ble
Supreme Court held as follows:

"9. We have not been able to appreciate the anxiety on
the part of the different courts in judgments referred to
13

above to apply the provisions of the Code to writ
proceedings on the basis of Section 141 of the Code. When
the Constitution has vested extraordinary power in the High
Court under Articles 226 and 227 to issue any order, writ or
direction and the power of superintendence over all courts
and tribunals throughout the territories in relation to which
such High Court is exercising jurisdiction, the procedure for
exercising such power and jurisdiction have to be traced
and found in Articles 226 and 227 itself. No useful purpose
will be served by limiting the power of the High Court by
procedural provisions prescribed in the Code. Of course, on
many questions, the provisions and procedures prescribed
under the Code can be taken up as guide while exercising
the power, for granting relief to persons, who have invoked
the jurisdiction of the High Court. It need not be impressed
that different provisions and procedures under the Code are
based on well-recognised principles for exercise of
discretionary power, and they are reasonable and rational.
But at the same time, it cannot be disputed that many
procedures prescribed in the said Code are responsible for
delaying the delivery of justice and causing delay in
securing the remedy available to a person who pursues
such remedies. The High Court should be left to adopt its
own procedure for granting relief to the persons concerned.
The High Court is expected to adopt a procedure which can
be held to be not only reasonable but also expeditious.

10. As such even if it is held that Order 22 of the Code
is not applicable to writ proceedings or writ appeals, it does
not mean that the petitioner or the appellant in such writ
petition or writ appeal can ignore the death of the
respondent if the right to pursue remedy even after death of
the respondent survives. After the death of the respondent it
is incumbent on the part of the petitioner or the appellant to
substitute the heirs of such respondent within a reasonable
time. For purpose of holding as to what shall be a
reasonable time, the High Court may take note of the period
prescribed under Article 120 of the Limitation Act for
substituting the heirs of the deceased defendant or the
respondent. However, there is no question of automatic
14

abatement of the writ proceedings. Even if an application is
filed beyond 90 days of the death of such respondent, the
Court can take into consideration the facts and
circumstances of a particular case for purpose of condoning
the delay in filing the application for substitution of the legal
representative. This power has to be exercised on well-
known and settled principles in respect of exercise of
discretionary power by the High Court. If the High Court is
satisfied that delay, if any, in substituting the heirs of the
deceased respondent was not intentional, and sufficient
cause has been shown for not taking the steps earlier, the
High Court can substitute the legal representative and
proceed with the hearing of the writ petition or the writ
appeal, as the case may be. At the same time the High
Court has to be conscious that after lapse of time a valuable
right accrues to the legal representative of the deceased
respondent and he should not be compelled to contest a
claim which due to the inaction of the petitioner or the
appellant has become final."

In the case M/s. Adarsh Palace Private Limited and
Another Vs. Somnanath Dwivedi & Others, reported in 2009
(Supp-1) O.L.R. 902, in paragraph-8 this Court held as follows:
"However, this judgment is also prior to the
amendment in the provisions of Section 141 C.P.C.
More so, it does not provide that the application
under Order 11, Rule 1 would not be applicable in
the proceedings other than suit."

In the case D.Sangya Naik Vs. Department of Telecom by
its Head, reported in I.L.R. 2005 KAR 1874, the High Court of
Karnataka in paragraph-10 held as follows:
"10. The argument was that the petitioner is innocent,
he had entrusted his case to his counsel who has let him
down and therefore he should not be penalized. Though
technically the writ petition is dismissed for non-
prosecution on the date the case was set down for
hearing, it cannot be said that such an order is bad.
When a party engages a counsel it is his duty to see that
his counsel is present when the case is called for
hearing. Order DC Rule 9 provides for a remedy to the
petitioner to file an application to recall the said order by
15

showing sufficient cause for his absence. When a
legislature provides a remedy for getting the said order
set aside, he has to follow the procedure prescribed
under law. If he does not choose to follow the said
procedure and if chooses to follow the procedure which
is not recognized in law, he cannot have any grievance.
Under these circumstances, the bar contained in Order
IX Rule 9 CPC which is equally applicable to writ rules is
absolute and no discretion is conferred on any Court to
ignore the aforesaid statutory provision and entertain the
second writ petition challenging the order which was the
subject matter of earlier proceedings which came to be
dismissed for non-prosecution."
In the case Public Service Commission, Uttaranchal
Vs. Mamta Bisht and Others, reported in (2010) 12 SCC 204,
the Supreme Curt in paragraph-9 held as follows:
"9. In case Respondent 1 wanted her selection
against the reserved category vacancy, the last selected
candidate in that category was a necessary party and
without impleading her, the writ petition could not have
been entertained by the High Court in view of the law
laid down by nearly a Constitution Bench of this Court in
Udit Narain Singh Malpaharia v. Board of Revenue, AIR
1963 SC 786, wherein the Court has explained the
distinction between necessary party, property party and
proforma party and further held that if a person who is
likely to suffer from the order of the court and has not
been impleaded as a party has a right to ignore the said
order as it has been passed in violation of the principles
of natural justice. More so, proviso to Order 1, Rule 9 of
the Code of Civil Procedure, 1908 (hereinafter called
"CPC") provides that non-joinder of necessary party be
fatal. Undoubtedly, provisions of CPC are not applicable
in writ jurisdiction by virtue of the provision of Section
141 CPC but the principles enshrined therein are
applicable (Vide Gulabchand Chhotalal Parikh v. State
of Gujarat, AIR 1965 SC 1153, Babubhai Muljibhai Patel
v. Nandlal Khodidas Barot, AIR 1974 SC 2105, Sarguja
Transport Service v. STAT, AIR 1987 SC 88.)
In the case of Birakishore Dash v. Kanaka Dash and
others, reported in 96 (1990) C.L.T. 154, this High Court in
paragraph-3 held as follows:
"3. An application for review lies only if the party discovers
any new and important matter or evidence which was not
within his knowledge or could not be produced by him at the
time the decree was passed even after exercise of due
diligence, or on account of some mistake or error on the
face of the record or for any other sufficient reason. It is the
16

consistent pronouncement of all judicial authorities that "any
other sufficient reason" as found in Order 47, Rule 1 C.P.C.
must have a meaning analogous to grounds of review
mentioned earlier than it which would mean that a power of
review excludes from consideration grounds which were not
decided by the former court as immaterial. A. I. R. 1922 P.
C. 112, A. I. R. 1954 Patna 163 followed. A defendant
seeking to avoid an ex parte decree can, without question,
have recourse to three remedies, the first to file an
application under Order 9, Rule 13 C. P. C. to set aside it,
second to file an appeal against the decree, and the third to
file an application under Order 47, Rule 1 C.P. C.. A similar
question was considered in A.I.R 1954 Madhya Bharat 3
(Chatar Das Guru Raghunathdas v. Keshavdas Guru
Bikaridas) wherein though the court held the absence of a
counsel or party doesn't enable the court to review an ex
parte decree within the limited scope of Order 47 Rile 1
C.P.C but held a case of failure of the court to issue notice
of hearing to the defendant as clearly distinguishable and
within the purview of Order 47 Rule 1 as an error apparent
on the face of the record. In AIR 1942 Oudh 63 (Bankey
Behari Lal and another v. Abdul Rahman and others) the
question considered was the passing of some orders by the
court in the chambers on some applications without the
parties being present. Such fact was held sufficient reason
for the court to review the orders since it was an error
apparent on the face of the record for the Subordinate
Judge to have decided the applications in the chambers in
the absence of the parties. Similarly, in A.I.R. 1932 Calcutta
265 (Bhola Nath Chatterjee v. Maharajadhiraj of Burdwan
and others) where challenge was made to an order passed
on review by the Munsif at the instance of an auction
purchaser reversing the order of setting aside a sale and
confirmation of possession, it was held that though the
grounds of review as were relied upon by the Munsif were
not available, yet the very fact that the sale was purported to
be set aside on deposit of the decretal amount by the
petitioner in that case but no notice of such deposit had
been given to the auction purchaser, the order passed
setting aside the sale was in violation of clause (2) of
section 174-A of the Bengal Tenancy Act 1885 and was a
justifiable around for review."

All the above decisions finds support to the case of the
contesting opposite parties.
10. This Court here also takes into account the claim of the

learned counsel for the petitioner involving 1981 S.C. 1400 to support

his case. After going through the same, this Court for the difference in
17

the facts involving the case therein and the case at hand finds this

decision has no application to the case at hand. On the other hand the

decisions cited by the opposite parties clearly supports the case of

opposite parties and accordingly hold the present writ petition is not

otherwise also maintainable in the eye of law.

11. For the findings of the Court on Issue Nos.1 and 2 that the writ

petition in the 2nd instance involving same cause of action is not

maintainable and otherwise also grossly barred by limitation, for the

observation of this Court in paragraph-7 herein above on Issue No.3,

this Curt answers all the three issues in favour of the contesting

opposite parties.

12. The writ petition thus stands dismissed. Interim order dated

1.6.1994 stands vacated. In the circumstances, there is no order as to

cost.

..............................
Biswanath Rath,J.

Orissa High Court, Cuttack The 9th day of October,.2020/sks

Unlock Advanced Research with PRISMAI

Orissa High Court