Jayanta Kumar Lenka vs Durga Majhi And Others

K.R. Mohapatra, J

This matter is taken up through hybrid mode.

Order dated 22nd March, 2024 (Annexure-6) passed by learned Senior Civil Judge, Balasore in I.A. No.414/501 of 2023 (arising out of C.S. No.1214 of 2023) is under challenge in this CMP, whereby an application filed by the Defendant No.1-Petitioner for examination of the Plaintiff-Opposite Party No.1 in the I.A. filed under Order XXXIX Rules 1 and 2 C.P.C. has been rejected.

Mr. Mishra, learned counsel for the Petitioner submits that the Plaintiff-Opposite Party No.1 describing himself as the son of Dukhia Majhi has filed the suit for declaration of sale deeds executed in favour of Defendants by the Defendant No.1-Petitioner to be illegal and void along with other consequential relief. The Plaintiff-Opposite Party No.1 has also filed I.A. No. 414/501 of 2023 under Order XXXIX Rules 1 and 2 C.P.C. In the said petition, the Defendant No.1-Petitioner filed an objection challenging the locus standi of Plaintiff-Opposite Party No.1 to file the suit as well as I.A. It is specifically stated in the objection that the Plaintiff-Opposite Party No.1, namely, Durga Majhi, is the son of late Sukul Majhi and not late Dukhia Majhi.

Documents in support of the case of the Petitioner were also filed along with objection. Learned trial Court without taking note of the same rejected the petition holding that copies of voter I.D., Aadhar Card and PAN Card prima facie go to show that the Petitioner is the son of late Dukhia Majhi. Learned trial Court also held that the Petitioner is required to adduce more reliable documents in support of his case to rebut the legal presumption of those documents. He further submits that the Petitioner has filed a certificate of eligibility in respect of the Plaintiff-Opposite Party No.1 under the provisions of the Odisha Land Rights to Slum Dwellers Act, 2017 to get a house under Balasore Municipality. Aadhar Card of the Plaintiff-Opposite Party No.1 was also filed showing that he is the son of Sukul Majhi. These documents were not taken into consideration by learned trial Court while passing the impugned order under Annexure-6. He, therefore, prays for setting aside the impugned order under Annexure-6 and to remit the matter to learned trial Court for fresh adjudication of the Petition taking into consideration the documents filed by the Petitioner.

Taking note of the submission made by learned counsel for the Petitioner and on perusal of the impugned order, this Court feels that no fruitful purpose will be served by issuing notice to the Opposite Parties awaiting response from them, more particularly in view of the order proposed to be passed in this case.

In view of the submission made by learned counsel for the Petitioner that documents were available on record to show that the Plaintiff-Opposite Party No.1 was the son of Sukul Majhi and not Dukhia Majhi, this Court feels that the same should have been taken into consideration by learned trial Court while adjudicating the petition filed challenging the locus standi of Plaintiff-Opposite Party No.1.

Accordingly, the impugned order under Annexure-6 is set aside and the matter is remitted to learned trial Court for fresh adjudication of the petition filed by the Defendant No.1-Petitioner for examination of Plaintiff-Opposite Party No.1 as a witness taking into consideration the objection raised as well as documents filed by the Petitioner and giving opportunity of hearing to the parties concerned.

It is made clear that this Court has not expressed any opinion on the merits of the case of either of the parties.

The CMP is accordingly disposed of.

Since the CMP is disposed of without issuing notice to the Opposite Parties, they are at liberty to seek for variation of this order, if they feel aggrieved.

Urgent certified copy of this order be granted on proper application..

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