Reddy Ramaya vs Chaudhuri Naik and others

Plaintiff no.1 is the appellant against a confirming judgment.

Since the appeal is to be disposed of on a short point, the facts need not be recounted in detail. Suffice it to say that appellant and respondent

no.5 as plaintiffs instituted the suit for permanent injunction. The defendants entered contest and filed a written statement denying the assertions

made in the plaint. The case of the defendants was that they were bhag tenants under Smt. Baisyaraju Seeta Kalyana, vendor of the plaintiffs. They

filed OLR Case No.190/86 under Secs.15(1)(b), 22-A(5) and Sec.18 of the Orissa Land Reforms Act (in short, ''O.L.R. Act''). The case is

pending. The suit is not maintainable under Sec.67 of the O.L.R. Act. An application under Order 14 Rule 2 (2)(b) C.P.C. was filed to decide the

suit on the preliminary issue ""whether the present suit is hit by the O.L.R. Act or not"". Learned trial court answered the said issue in affirmative. The

unsuccessful plaintiffs challenged the judgment and decree of the learned trial court before the learned Subordinate Judge, Chatrapur in T.A. No.5

of 1987, which was eventually dismissed.

The second appeal was admitted on the following substantial questions of law.

(i) Whether the First Appellate Court was justified in not remanding the suit to the trial court for final disposal after recording the findings on all the

issues on the basis of the certified copy of the order of the OLR Authority filed before him by way of a memo ?

(ii) Whether the appellate court was justified in dismissing the appeal for non-compliance of the provisions of Order 41 Rule 27 C.P.C. ?

Heard Mr. Sidhartha Mishra on behalf of Mr. B. Senapati, learned counsel for the appellant and Mr. Baibaswata Panigrahi on behalf of Mr.

S.K. Padhi, learned Senior Advocate for the respondents.

Mr. Mishra, learned counsel for the appellant submits that during pendency of the first appeal, O.L.R. Case No.190/86 was dismissed for non-

prosecution. The certified copy of the order-sheet of the Tahasildar was filed along with a memo. The learned appellate court committed a manifest

illegality and impropriety in affirming the judgment of the learned trial court.

Per contra, Mr. Panigrahi, learned counsel for the respondents submits that the defendants are bhag tenants under the vendor of the plaintiffs.

They instituted O.L.R. Case No.190/86. No application under Order 41 Rule 27 C.P.C. was filed to adduce additional evidence. Learned courts

below had rightly held that the suit is hit under Sec.67 of the O.L.R. Act.

When a query is being made by this Court as to what is the present position of O.L.R. Case No.190/86, which was dismissed for

nonprosecution, counsel for the parties are not in a position to appraise this Court. They submit that due to long pendency of the appeal before this

Court, parties have not responded to their letters.

O.L.R. Case No.190/86 filed by the defendants against the vendor of the plaintiffs has a direct bearing in the suit. Learned trial court has not

decided all the issues.

In view of the same, the impugned judgments are set aside. The appeal is allowed. The matter is remitted back to the learned trial court. It is

open to the parties to adduce evidence. Learned trial court shall decide all the issues. In order to avoid further delay, parties shall appear before

the learned Civil Judge (Jr. Divn.), Chhatrapur on 31st January, 2018, on which date learned trial court shall fix a date of hearing and conclude the

hearing of the suit within a period of six months thereafter.