Prabin Kumar Barik vs Trilochan Sahoo And Another

K.R. Mohapatra, J

This matter is taken up through hybrid mode.

Order dated 20th May, 2023 passed by learned Civil Judge (Junior Division), Talcher in C.S. No.67 of 2013 is under challenge in this CMP, whereby an application under Order XIII Rule 10 CPC to call for the original records of C.S. No.56 of 2020 from the Court of learned Senior Civil Judge, Talcher, has been rejected.

It is submitted by Mr. Panigrahi, learned counsel for the Petitioner that the Defendant as Plaintiff had filed C.S. No.56 of 2022 in the Court of learned Senior Civil Judge, Talcher. It was filed by the Defendant for declaration of right, title, interest and recovery of possession. The present suit, i.e., C.S. No.67 of 2013 has been filed for declaration of right, title, interest over the suit land through adverse possession and in the alternative for easementary right over the suit land. It is submitted that C.S. No.56 of 2020 was withdrawn without any liberty. During cross-examination, D.W.4 at Paragraph-24 denied to have filed C.S. No.56 of 2020. He also denied to have withdrawn the said suit. Thereafter, the Plaintiff obtained the certified copy of the case record in C.S. No.56 of 2020 and the same has already been marked as exhibit without any objection. Before filing of the certified copy of the plaint in C.S. No.56 of 2020, an application of similar nature to call for the case record in C.S. No.56 of 2020 was filed, which was rejected.

It is his submission that the Defendant No.1 had denied to have filed C.S. No.56 of 2020. The certified copy of the case record was obtained and marked as exhibit. However, to confront the signature of Defendant No.1 in the plaint, the original case record should be called for. Learned trial Court without appreciating the same, rejected the petition on the ground that the Plaintiff can prove filing of C.S. No.56 of 2020 and withdrawal of the same by Defendant No.1 by adducing sufficient evidence at the trial stage. He further submitted that petition of similar nature has already been rejected. Since the present petition under Order XIII Rule 10 CPC is filed in a different situation, the principles of res-judicata will not be applicable. As such, he prays for setting aside the impugned order rejecting the petition under order XIII Rule 10 CPC and to direct learned trial Court to call for the original case record of C.S. No.56 of 2020 to be confronted to Defendant No.1.

Considering the submission made by Mr. Panigrahi, learned counsel for the Petitioner and on perusal of the record, it appears that during cross-examination of Defendant No.1 (D.W.4) by the Plaintiff-Petitioner, he has categorically stated that he did not file C.S. No.56 of 2020. It is, however, submitted by Mr. Panigrahi, learned counsel for the Petitioner that certified copy of the plaint in C.S. No.56 of 2020 which has been marked without objection was never confronted to D.W.4. In such a circumstance, a petition for calling for the case record in C.S. No.56 of 2020 is not maintainable. Further it appears that a petition of similar nature had already been rejected. Although it is submitted that such a petition was filed before exhibiting certified copy of the plaint in C.S. No.56 of 2020, but this Court finds that when the certified copy of the plaint in C.S. No.56 of 2020 has never been confronted to Defendant No.1(D.W.4), the subsequent application under Order XIII Rule 10 CPC is misconceived.

Since the certified copy of the plaint in C.S. No.56 of 2020 has been marked without any objection, the same can be taken into consideration by learned trial Court at the time of argument.

In that view of the matter, I find no infirmity in the impugned order in rejecting the petition under Order XIII Rule 10 CPC.

Accordingly, the CMP being devoid of any merit stands dismissed.

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

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