Surendra Kumar Sabarwal vs Om Prakash Daga And Others

K.R. Mohapatra, J

This matter is taken up through hybrid mode.

Order dated 5th March, 2024 (Annexure-4) passed in T.S. No.53 of 2000 is under challenge in this CMP, whereby learned Civil Judge (Senior Division), Titilagarh accepted two documents, i.e., certified copy of judgment in R.F.A. No.110/32/34/12 of 2008-22 passed by learned Additional District Judge, Titilagarh on 20th November, 2023 and decree drawn in the said first appeal and marked those documents as Exts.8 and 9 respectively.

Ms. Naidu, learned counsel submits that the Defendant is the Petitioner in this CMP. Suit has been filed by the Plaintiff-Opposite Party No.1 for eviction of Defendant from the suit property claiming right, title and interest thereon. Written statement was filed stating that the land is recorded in government khata and the Plaintiff does not have any right to pray for eviction of the Defendant. No whisper with regard to T.S. No.53 of 2000 and the first appeal arising therefrom was made in the plaint. After closure of evidence of the Plaintiff, when the suit was posted for adducing evidence on behalf of the Defendant, an application was filed by the Plaintiff to exhibit the aforesaid two documents. Learned trial Court holding that after closure of evidence from the side of the Plaintiff, case is being lingered for awaiting case record of T.S. No.53 of 2000 from Additional District Judge, Titilagarh and in the meantime the Plaintiff-Opposite Party No.1 having filed the judgment in R.F.A. No.110/32/34/12 of 2008-22 passed by learned Additional District Judge, Titilagarh which arose out of the said suit, allowed the petition.

It is her submission that when there is no pleading with regard to T.S. No.53 of 2000 or any appeal arising therefrom in the plaint, the documents exhibited as Exts.8 and 9 have no relevance for adjudication of the suit. Although specific objection to that effect was raised by the Defendant, but without considering the same, learned trial Court allowed the application and exhibited the judgment and decree passed in R.F.A. No.110/32/34/12 of 2008-22 as Exts.8 and 9 respectively. By exhibiting those documents, there will be a de novo trial and the Defendant may require to amend his written statement. Since the suit has proceeded substantially and it is a year old suit of 2000, the Plaintiff should not be allowed to patch of the lacuna in the suit by exhibiting the documents. These materials aspects were not taken into consideration by learned trial Court while adjudicating the petition. Hence, she prays for setting aside the impugned order under Annexure-4.

Considering the submission made by learned counsel for the Petitioner and on perusal of the record, it appears that there is no pleading with regard to T.S. No.53 of 2000 or pendency of R.F.A. No.110/32/34/12 of 2008-22 in the plaint. In the meantime, evidence from the side of the Plaintiff has been closed. The suit is of the year, 2000 and is filed for eviction of the Defendant-Petitioner. When no pleadings with regard to aforesaid two documents is available in the plaint, the same may not be admitted in evidence. On perusal of the petition under Annexure-2 filed by the Plaintiff to permit him to produce the certified copy of the aforesaid judgment and decree, no whisper has been made as to why no pleading in that regard could be made in the plaint. These material aspects were lost sight of by learned trial Court while adjudicating the petition.

Since the suit is of the year, 2000 and trial of the suit has proceeded substantially, this Court feels that issuance of notice to the Plaintiff-Opposite Party No.1 awaiting his response would further delay the matter. In view of the order proposed to be passed in this matter, this Court dispensing with service of notice on the Plaintiff-Opposite Party No.1, proceeds to finally dispose of the CMP.

In view of the discussions made above, this Court feels that the matter requires fresh consideration by learned trial Court. Hence, the impugned order under Annexure-4 is set aside and the matter is remitted to learned trial Court for fresh consideration of the petition under Annexure-2 giving opportunity of hearing to the parties concerned keeping in mind the observations made herein above.

The CMP is accordingly disposed of.

Since the CMP is disposed of without issuing notice to the Plaintiff-Opposite Party No.1, he is at liberty to seek for variation of this order, if he feels aggrieved.

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

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