Anusuya Sahoo And Others vs Sabitri Sahoo And Others

K.R. Mohapatra, J

This matter is taken up through Hybrid mode.

Order dated 25th September, 2023 (Annexure-3) passed by learned Civil Judge (Senior Division) 1st Court, Cuttack in CS (I) No.253 of 2008 is under challenge in this CMP, whereby an application filed by the Plaintiffs/Opposite Parties for recall of order dated 4th September, 2023 by which their evidence was closed has been allowed.

It is submitted by learned counsel for the Petitioners that after providing sufficient opportunities to the Plaintiffs to adduce evidence, vide order dated 4th September, 2023, closed evidence from the side of the Plaintiffs and in the meantime, Defendants have adduced evidence in the suit. At this juncture on 12th September, 2023, a petition was filed to recall order dated 4th September, 2023 and learned trial Court directed the Plaintiffs to adduce evidence in the suit. The suit is of the year 2008 and the present Defendants/Petitioners are in possession of the suit property. Due to non-cooperation of the Plaintiffs and lingering of the suit they are seriously prejudiced. Order dated 4th September, 2023 disclosed that relying upon the case law in the case of M/s PLR Projects Private Limited Vs. Mahanadi Coalfields Limited, reported in (2019) 10 SCC 306, learned trial Court closed the evidence of the Plaintiffs. Learned trial Court also relied upon the case law in the case of Tirgun Vs. Shiv Cotex Private Limited, reported in (2011) 9 SCC 678 while closing the evidence of the Plaintiff vide order dated 4th September, 2023. The petition to recall order dated 4th September, 2023 is essentially an application under Section 151 CPC, which should have been registered as Misc. Case in view of Rule 431 Clause 19 of GRCO (Civil). While recalling the order dated 4th September, 2023 vide impugned order dated 25th September, 2023, learned trial Court failed to take into consideration the grounds on which the evidence of the Plaintiffs was closed. Only by taking lenient view and confining examination of one Sanjay Kumar Sahoo as a witness on behalf of the Plaintiffs learned trial Court allowed such application subject to payment of cost of Rs.1,000/-. Hence, this CMP has been filed.

Heard learned counsel for the Petitioner; perused the impugned order. It appears that the learned trial Court entertained the application for recall of the order dated 4th September, 2023 without registering the same as an Interlocutory Application. It is, however, observed in the impugned order that opportunity should be given to the parties to adduce their evidence. The order dated 4th September, 2023 was recalled subject to payment of Rs.1,000/- as cost with a further direction that Plaintiffs shall not be permitted to adduce any further evidence save and except the evidence of Sanjay Kumar Sahoo. Learned trial Court, while recalling the order, has also put few other conditions. It appears that learned trial Court, while adjudicating the petition dated 12th September, 2023 in his order dated 25th September, 2023, has taken care of the interest of both parties and allowed the petition keeping in mind that the suit has been filed for right, title, interest and for permanent injunction.

Since the learned trial Court in exercise of its discretion has afforded opportunity to the Plaintiffs to adduce further evidence subject to certain conditions as more fully stated in the impugned order, I am not inclined to interfere with the same.

5.1 Since the suit is of the year 2008, learned trial Court should make its best endeavour to see that the suit is disposed of at an early date. Parties are directed to cooperate with learned trial Court for early disposal of the suit.

The CMP is disposed of accordingly.

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