Advocates:
['BIBEKANANDA BHUYAN', '', 'S S BHUYAN', 'S S MOHAPATRA', 'M/S N PARIJA', 'A K MOHANTY', 'S PARIJA']

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IN THE HIGH COURT OF ORISSA AT CUTTACK

CMP No.778 of 2022

Urbasi Sethi

….

Petitioner

Mr. Bibekananda Bhuyan, Advocate

-versus-

Natha Barik and others

….

Opp. Parties

Mr. Narayan Prasad Parija, Advocate

CORAM:

JUSTICE K.R. MOHAPATRA

ORDER

Order No.

02.11.2022

2.

1.

This matter is taken up through hybrid mode.

2.

This CMP has been filed assailing the order dated 23^rd

July, 2019 (Annexure-3) passed by learned 1^st Additional Senior

Civil Judge, Cuttack in CS No.341 of 2019, whereby learned

trial Court without adhering to the procedure laid down under

Order X CPC posted the matter for hearing on the settlement of

issues.

3.

Mr. Bhuyan, learned counsel for the Petitioner submits

that there is delay in assailing the order impugned herein and

delay has been explained at para-9 of the CMP, which reads as

under:-

“9.

That the aforesaid illegalities committed by the Ld.

Civil Judge came to the knowledge of the petitioner first

time on 29.07.2022 when the certified copy vide Annexure-

3 was obtained for pursuing the hearing of CMP No.92 of

2022 before this Hon’ble Court and as such the same was

not known to the petitioner beforehand. Therefore, there

was no delay in challenging the same. Due to the COVID-

19 pandemic the petitioner could not challenge the said

order before hand though the Hon’ble Apex Court has

excluded the period of limitation from 15.03.2020 till

28.02.2022 and the delay in preparing the present CMP is

neither deliberate nor willful. Hence the delay in filing the

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present CMP may be condoned and the present case be

considered on its own merit.”

Mr. Bhuyan, learned counsel for the Petitioner submits that the

ratio in the case of Manorama Mohanta Vs. Orissa State

Financial Corporation and others, reported in 2011 (I) OLR

709 is relevant for adjudication of the issue involved in this

CMP, wherein it is held as follows:-

“5.At this stage, it is undisputed that the suit was

posted for filing of draft issues on 24.10.2006. A suit should

not be posted for filing of draft issues, rather a suit, after

the pleadings are complete, should be posted for hearing

under Order X, Rule 1 of the Code for ascertaining whether

the allegations made in the pleadings are admitted or

denied and for settlement of issues. There is no provision in

the Code for posting of case for filing of the draft issues.

Such a practice is not proper. Nevertheless, if the suit is

posted for filing of draft issues, it cannot be held to be

posted for hearing….”

He also relied upon the decision in the case of Rahul S. Shah

Vs. Jinendra Kumar Gandhi and others, reported in AIR 2021

SC 2161, in para 42.1 of which, Hon’ble Supreme Court held as

under:-

“42. All courts dealing with suits and execution

proceedings shall mandatorily follow the below mentioned

directions:

42.1. In suits relating to delivery of possession, the

court must examine the parties to the suit under Order 10

in relation to third-party interest and further exercise the

power under Order 11 Rule 14 asking parties to disclose

and produce documents, upon oath, which are in

possession of the parties including declaration pertaining

to third-party interest in such properties.

42.2. In appropriate cases, where the possession is not

in dispute and not a question of fact for adjudication

before the court, the court may appoint Commissioner to

assess the accurate description and status of the property.

42.3. After examination of parties under Order 10 or

production of documents under Order 11 or receipt of

Commission report, the court must add all necessary or

proper parties to the suit, so as to avoid multiplicity of

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proceedings and also make such joinder of cause of action

in the same suit.”

He, therefore, subm