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Judgment
8 paragraphs · 284 wordsK.R. Mohapatra, J
This matter is taken up through hybrid mode.
Order dated 5th February, 2024 (Annexure-6) passed in Civil Suit No.10 of 2021 is under challenge in this CMP, whereby learned Senior Civil Judge, Udala dismissed an application filed by the Defendants-Petitioners under Order XXVI Rule 9 CPC.
Mr. Panigrahi, learned counsel for the Defendant Nos.1 and 2-Petitioners submits that evidence of the Defendants is yet to be completed. Hence, interest of justice will be best served if the Defendants move an application after closure of evidence of the parties in the suit, if necessary. Hence, he prays for withdrawal of this CMP.
Mr. Dash, learned Counsel for Plaintiff-Opposite Party No.1 submits that he has no objection if the Petitioners withdraw this CMP. But, no fruitful purpose will be served by moving such an application after closure of the evidence. Since the Defendants claim possession over the suit property, the burden is on them to prove the same. They cannot establish the same through the evidence of any Survey Knowing Commissioner. It will amount to procuring evidence through Court, which is not permissible in law.
Taking note of the submission made by learned counsel for the parties, this Court, without expressing any opinion on the merits of the case of either of the parties, disposes of this CMP with an observation that in the event, an application under Order XXVI Rule 9 CPC is moved by the Defendants after closure of the evidence of the parties in the suit, the same may be adjudicated in accordance with law giving opportunity of hearing to the parties concerned.
Urgent certified copy of this order be granted on proper application.
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