JUDGMENT

Dr. B.R.SARANGI, J. - The plaintiff, being the petitioner, has filed this petition challenging the order dated 16.8.2007 passed by learned Civil Judge (Junior Division), Puri in T.S.No. 136 of 1992 under Annexure - 3 allowing the petition filed by the defendant-opposite party No.4 with regard to exhibiting the plaint of C.S.No. 80 of 2006 as a public document under Section 74 of the Evidence Act.

2. The short facts of the case, in hand, is that the petitioner being the plaintiff filed a suit bearing T.S.No. 136 of 1992 before the learned Civil Judge (Junior Division), Puri for declaration of her right, title and interest and confirmation of possession over the suit land. The defendants being summoned appeared in the suit. Besides defendant No.4, Mina Samahtaray and defendant No.5, Santanu Mohapatra, none filed the written statement in the suit. The written statement filed by the defendant No. 5 was not accepted by the Court, However, defendant No.4 contested the suit by filing her written statement. On the basis of the pleadings available, issues were framed and hearing of the suit commenced and witnesses from both the sides were examined and in course of such hearing documents were also exhibited.

3. In the suit itself, defendant-opposite party No.4 herein, was examined as D.W.4. Neither in the written statement nor during her examination she has stated anything regarding filing or pendency of C.S. No. 80 of 2006 and its relevancy to the present suit. But after closure of evidence of defendant No.4, she examined one Upendra Samantaray as D.W.5 in the suit who disclosed regarding pendency of C.S.No. 80 of 2006, in consequence thereof defendant No.4, filed petitions vide Annexure – 1 series for admitting the certified copy of the plaint in C.S.No. 80 of 2006 as evidence facilitating D.W.4 for making the same as exhibit, granting permission to file certified copy of the plaint in C.S. No. 80 of 2006 and to call for the file of the said suit.

4. The plaintiff-petitioner objected vide Annexure-2 to the petitions filed in Annexure-1 series stating, inter alia, that the plaint in C.S. No. 80 of 2006 is quite irrelevant to the suit before the Court and the plaint being not a public document as per the provisions of Section 74 of the Evidence Act, the same cannot be admitted into evidence and thus, prayed for dismissal/rejection of the petitions.

5. Learned Court below after hearing the parties allowed the petitions vide Annexure-1 series and admitted the plaint into evidence and marked the same as exhibit vide order dated 16.08.2007 under Annexure-3.

6. Mr. B. Tripathy, learned counsel for the plaintiff-petitioner strenuously urged that the order impugned amounts to arbitrary and illegal exercise of power by the Court below as the plaintiff-petitioner is not a party in C.S.No. 80 of 2006, and more so the plaint of a suit being not a public document cannot be admitted into evidence and marked as exhibit in the suit without any formal proof as the subject matter as well as the suit land are altogether different. He further submitted that the suit in C.S.No. 80 of 2006 has been filed by one Sailabala Pattnaik and Bibhuti Bhusan Pattnaik and they have not come to the witness box and the plaint filed by them cannot be exhibited and admitted into evidence as the plaintiff-petitioner is not a party to the said suit. That apart defendant No.4, opposite party No.4, herein, has neither pleaded the said fact in her written statement nor deposed anything while she was examined as D.W.4 in the suit. Therefore, she has no competency in any manner to rely on the plaint filed in the said suit. Therefore, the learned Court below on wrong interpretation of fact and law arrived at the conclusion that in order to ascertain a graphic picture of the dispute the Court has to take the aid of the other reference. In order to substantiate his contention he has relied upon the judgment in Gulab Chand and others v. Sheo Karan Lall Seth and others, AIR 1964 P