Advocates:
['ASHOK DAS', '', 'M R DASH', 'S A K DORA', 'A K MOHANTY', 'U S SABAT']

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A.F.R

IN THE HIGH COURT OF ORISSA AT CUTTACK

C.M.P. No.323 of 2022

Kanchandra Manjula @ K. Manjula ….

Petitioner(s)

Mr. A. Das,

Advocate

-versus-

Rajeswar Sahu

….

Opposite Party(s)

CORAM:

JUSTICE BISWANATH RATH

Order No.

ORDER

29.04.2022

01.

1.

This C.M.P. involves a challenge to the impugned order dated

7.01.2022 passed by the learned 2^nd Addl. Senior Civil Judge,

Berhampur in I.A. No.9 of 2021 vide Annexure-8.

2.

In filing the application at Annexure-3 under the provision of

Section 27 & Section 151 read with Order 32 Rule 3 further read with

Section 15 of C.P.C. Defendant No.4 the Petitioner herein made an

attempt for dismissal of the suit for not being duly and validly

instituted as in the manner prescribed in law and the plaint presented

plays fraud by suppressing the fact of unsoundness of the defendant

no.6. This application appears to have been filed banking upon a

counter affidavit of the plaintiff filed against miscellaneous application

dated 27.08.2021 vide Annexure-6. Reading through the disclosures by

the plaintiff through counter affidavit, Mr. Das, learned counsel for the

Petitioner contended that once the plaintiff himself through a counter to

the miscellaneous application admits, the defendant no.6 remains

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unsound, it itself discloses that there is suppression of this material

facts in the plaint and the plaint is, therefore, made to be dismissed for

non-compliance of the provision at Order 7 Rule 1(d) of C.P.C. It is

then taking this Court to the impugned order, Mr. Das, learned counsel

for the Petitioner contended that this order is passed in non-

consideration of the admission of the plaintiff himself.

3.

Considering the submissions of Mr. Das, learned counsel for

the Petitioner and for the application U/o.7 Rule 1(d) C.P.C, this Court

finds, the provision at U/o.7 Rule 1(d) C.P.C. reads as follows:-

“1. Particulars to be contained in plaint – The plaint

shall contain the following particulars :-

(d) where the plaintiff or the defendant is a minor or a

person of unsound mind, a statement to that effect;”

4.

For the above contingency this Court is of the opinion that

there may be requirement of filing of application under Section 27 &

Section 151 read with Order 32 Rule 3 further read with Section 15 of

C.P.C. Reading the entire plaint averments, this Court nowhere finds,

the plaintiff at least disclosed the unsoundness in defendant no.6. This

Court here again finds, the suit was filed in 2018 whereas objection of

the plaintiff referred to herein came on record on 6.09.2021 almost

after three years of filing of plaint. It is not known, if defendant no.6

has gone unsound in the meantime? Further contingency of such

application pressed is dependent on plaint averment and cannot be

either on the basis of some statement in counter to a miscellaneous

application or on the basis of written statement response. It is, in the

circumstance, for this Court does not find any such lapse in the plaint,

there is no application of provision at Section 27 & Section 151 of the

C.P.C. It is, at this stage of the matter, this Court finds, there has been

some statement in the counter affidavit observing that unless such

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statement comes as part of the plaint, there is no scope of considering

the plaint in particular manner and it has to be read on its own. At this

stage this Court reading through the impugned order further finds, the

trial court has refused to take cognizance of statement of the plaintiff

through counter, as there is no foundation to support to such claim in

the counter even. For the opinion of this Court the application of the

Petitioner at Annexure-3 remains unfounded as such uncalled for and

thus this Court finds, there is right rejection