In this case, the petitioner has prayed for a direction to Opposite Party No.2-Sub-Registrar, Cuttack to accept the certified copy of the judgment and decree dated 26th December, 2022 and 6th January, 2023 respectively passed by learned 3rd Additional District Judge, Cuttack in RFA No.459 of 2022 for registration.

The Petitioner had submitted that CS No.288 of 2021 was dismissed vide judgment dated 19th May, 2022 passed by learned Senior Civil Judge, 1st Court, Cuttack without accepting the compromise entered into between the parties. Assailing the same, the Petitioner filed RFA No.459 of 2022, which was disposed of vide judgment dated 26th December, 2022 wherein it was held that in the instance case as the suit land has been recorded in the name of the appellant who is a female Hindu, in view of section 14 of the Hindu Succession Act it is clear that the suit land is the absolute property of the appellant and as per the terms of compromise a new right is going to be created in favour of the respondent. Accordingly, the certified copy of judgment and decree in RFA No.459 of 2022 was presented before the Sub-Registrar, Cuttack-Opposite Party No.2 for registration. The Sub-Registrar under a misconception that a judgment and decree arrived on compromise is not registrable, refused to accept the same.

The Petitioner while relying upon the decision in the case of Bhoop Singh v. Ram Singh Major and others (1995) 5 SCC 709, submitted that since a new right is created in favour of the Respondent in the aforesaid appeal by virtue of the compromise, the judgment and decree is compulsorily registrable under Section 17 (1) of the Registration Act, 1908. The Additional Standing Counsel did not dispute the contention and rather submitted that the property in question was the absolute property of a female Hindu (the Petitioner) under Section 14 of the Hindu Succession Act, 1956 and by virtue of a compromise decree, a new right is created in favour of the Respondent in the aforesaid appeal.

This Court iterated that law is no more res integra on the issue that when a new right is created in favour of a party by way of a compromise decree, the same is compulsorily registrable under Section 17 (1) of the Registration Act. When of course, the parties have a pre-existing right over the property and by virtue of the compromise, only an adjustment has been made, the same may not attract Section 17 of the Registration Act, which depends upon the facts and circumstances of the case. The petition was therefore allowed.

In this case, CS No.310 of 2017 was filed by the Plaintiff-Opposite Party for eviction, recovery of outstanding monthly rent along with arrear electricity and water charges as well as for recovery of damages from the Defendant- Petitioner. As the Defendant took several adjournments and did not co-operate for conclusion of the trial of the suit by adducing evidence, the Plaintiff moved this Court in CMP No.112 of 2020, which was disposed of on 6th February, 2020 with a direction to hear the suit on day-to-day basis. After several adjournments and absents from the side of the Defendant, the suit was then posted to next day, i.e., 8th October, 2021 for further argument. On the said date, the Defendant filed an application under Order VI Rule 17 CPC for amendment of the written statement, which was rejected on the very same day and the argument was taken up. As such, judgment of the suit was pronounced on contest on 11th October, 2021. The decree was also signed on 27th October, 2021. Thereafter, on 3rd November, 2021, the Defendant filed an application under Order IX Rule 13 CPC (CMA No.69 of 2021) to set aside the judgment and decree passed in CS No.310 of 2017 stating that the suit was decreed exparte. The 1st Additional Civil Judge (Senior Division), Bhubaneswar after hearing the parties, vide order dated 12th October, 2022 (Annexure-2) held the petition under Order IX Rule 13 CPC to be not maintainable since the suit was decreed on contest.

The Defendant-Petitioner strenuously argued that the suit was decreed in terms of Order XVII Rule 2 read with Rule 3(b) CPC. Thus, the suit although stated to have been disposed of on contest, but in law the same is an ex-parte decree. When the Defendant did not adduce any evidence in the suit and was not present physically on the date to which the suit was posted for hearing, it cannot be said that the suit was decreed on contest. Appearance of the Defendant-Petitioner means his physical appearance in Court and not through his learned counsel. In the instant case, admittedly, the Defendant was not present physically when her evidence was closed and till then no evidence was adduced by the Defendant. Then the suit was posted for argument. As such, the suit should have been disposed of in terms of Order XVII Rule 2 CPC read with Rule 3(b) of the said Order.

The Opposite Party contended that the Defendant being present in Court either physically or through her learned counsel on different adjourned dates of hearing of the suit did not adduce evidence and sought for adjournment. Only because she has not adduced any evidence it cannot be said that she was absent on the date of hearing of the suit. Thus, Order XVII Rule 3(a) CPC squarely applies to the case at hand. The amendment of Order XVII Rule 3(a) was introduced to deal with such type of situations when the Defendant being present in Court either in person or through Advocate does not lead any evidence or perform any other act necessary for the progress of the suit. In the instant case, the suit was posted for adducing evidence on behalf of the Defendant. She being present failed to produce her witness in the suit. Thus, the Petitioner cannot take shelter either under Order XVII Rule 2 or 3(b).

This Court observed that when a party is absent on the date to which the suit is posted for hearing, the Court may proceed in any of the modes as provided under Order IX. To the contrary, where a party to the suit to whom time has been granted to produce evidence, or cause the attendance of the witness, fails to do so or fails to perform any act for which time has been allowed, the Court in its discretion, notwithstanding such default, may proceed to decide the suit forthwith, provided the parties are present. If such party is absent, the only option left with the Court is to proceed with the suit in any of the modes provided under Order IX. The case of the Petitioner squarely falls under Rule 3(a) of Order XVII C.P.C., as the Defendant failed to perform the act for which hearing of the suit was adjourned being present in Court through her Advocate. A party cannot be allowed to take advantage of his own fault at the cost of prejudice to the adversary. Neither Rule 2 nor Rule 3 provides that if the party chooses not to adduce any evidence, the Court has to proceed in any of the modes provided under Order IX. In the instant case, the conduct of Defendant clearly illustrates that she chose not to adduce any evidence on her behalf being present in Court. In that event, it cannot be said that the suit was decided ex parte. The petition was therefore rejected.

In this case, Opposite Party Nos.1 to 3 filed an application under Section 276 of the Indian Succession Act, 1925 before District Judge, Dhenkanal for grant of probate of Will, which was registered as Test Case No.14/20 of 2003. The Petitioner has been arrayed as Opposite Party No.2 in the said proceeding. Partition Suit in CS No.99 of 2002 is also pending between the parties to the probate proceeding before learned Senior Civil Judge, Angul. After death of the Plaintiff in the suit for partition, the Petitioner filed an application to be transposed as Plaintiff in the said suit. He also filed an application to club up both the suits, i.e., CS No.24 of 2004 and CS No.99 of 2002. Both the applications were dismissed by learned Senior Civil Judge, Angul, vide order dated 29th April, 2022. Assailing the same, the Petitioner filed CMP No.526 of 2022 and by order dated 21st June, 2022, this Court directed stay of further proceedings of CS No.24 of 2004. When the interim order was continuing, the Petitioner filed an application under Order VII Rule 10 CPC with a prayer to return the plaint to the Opposite Party Nos.1 to 3 (Petitioners therein) to be filed before the competent Court, i.e., learned District Judge, Angul. The rejection of the said application has been contended in this case.

The petitioner has contended that the Senior Civil Judge, Angul could not have taken up the petition under Order VII Rule 10 CPC foradjudication when an interim order of stay of further proceeding of CS No.24 of 2004 was in vogue. Secondly, Senior Civil Judge, Angul lacks jurisdiction to entertain a contentious probate proceeding filed (CS No.24 of 2004) under Section 276 of the Act of 1925. He submitted that the direction in the interim order dated 21st June, 2022 was not addressed to the parties to the proceeding, but to the Court to arrest further proceeding of CS No.24 of 2004. Thus, even if an application under Order VII Rule 10 CPC was moved by the present Petitioner, it was the duty of the Court to restrain itself from passing any judicial order thereon.

The Opposite Party has contended that Sections 265, 286 and 288 of the Act of 1925 leave no room of doubt that whenever there is contention in an application under Section 276 of the said Act, the district delegate loses jurisdiction to proceed with the matter and he should return the application to the applicant to be presented before the concerned District Judge. In the instant case, the application under Section 276 of the Act, 1925 was not presented before the district delegate, but it was presented in the Court of learned District Judge, Dhenkanal, which is certainly not a district delegate. The said application became contentious subsequently. A transferee Court is denuded of the power to entertain an application under Order VII Rule 10 CPC to return the application. He further submitted that Act of 1887 was applicable to the State of Odisha which was repealed by Act, 1984. Sub-section (2) of Section 25 of the Act of 1984 clearly states that all such notifications, jurisdictions and power conferred under the Act, 1887 deemed to have been issued/ conferred and published under the Act of 1984. No district delegate has yet been appointed in the State of Odisha. Thus, learned District Judge was well within its power to transfer the instant contentious probate proceeding to Senior Civil Judge, Angul.

This Court held that it is in no unambiguous terms held by this Court that trial Court retains its jurisdiction to consider and pass orders in matters which are collateral or which may be protective or which would be for the purpose of keeping the lis alive even during subsistence of the order of the superior Court directing stay of the proceedings in the suit. But the Court should take care to ascertain that the subject matter in the petition does not touch trial of the suit, which has been stayed by the superior Court. It is further clear that adjudication of a petition, which is likely to affect trial of the suit or to take away the jurisdiction of the Court to try the suit, cannot be entertained when further proceeding of the suit is stayed. As such, learned trial Court has committed an error in entertaining an application under Order VII Rule 10 CPC when an interim order of stay of further proceeding of the suit was in operation. True it is that, the application under Order VII Rule 10 CPC was filed during subsistence of the aforesaid interim order, but in all fairness learned trial Court should have waited to entertain such application after the interim order is either vacated or exhausted. Accordingly, the impugned order 12th July, 2022 passed in CS No.24 of 2004 was set aside and the CMP was allowed.

In this case, the Petitioner No.1-Trust was created by executing Trust Deed registered on 22nd August, 1989 on the terms and conditions more-fully described therein. There were allegations of mismanagement of the Trust and Institution. The Petitioner No.2, who is managing the Trust, allegedly misappropriating funds of the Trust as well as institution. He has also inducted trustee at his own will without following the provisions of Bye-law. The villagers, namely, Opposite Party Nos.1 to 6, who have purported interest in the Trust filed an application under Section 92(1) C.P.C. seeking leave to file the suit being accompanied by the proposed plaint. The application under Section 92(1) of the C.P.C. was registered as CMA No. 25 of 2017 on the board of learned District Judge, Angul. Upon receipt of the application, notices were issued to the Petitioners along with other Opposite Parties therein. Learned District Judge, Angul vide judgment under Annexure4 allowed the said application granting leave to the Opposite Party Nos.1 to 6 to file the suit as proposed against the Petitioners and Opposite Party Nos.7 to 9. As such, the Petitioners, who are arrayed as Defendant Nos.1 and 2 in the suit, being aggrieved by the said order under Annexure-4, have filed this CMP.

The petitioner contended that the Governing Body of the Institution has been constituted as per the norms of AICTE and the Petitioner No.1 has been approved as Chairman of the said Governing Body by the State Government, vide its order dated 31st January, 2015. When the matter stood thus, the Opposite Party Nos.1 to 6, who are complete strangers and have no locus standi in the management of either the Trust or the Institution, made several communications to different authorities, which was against the interest of both Trust and Institution. Upon receipt of such application, notices were issued to the Opposite Parties therein including the Petitioners, who entered appearance and filed their objection, questioning the maintainability of the said CMA. It was specifically stated therein that the CMA is not maintainable for non-compliance of the provisions under Order I Rule 8 CPC. The dispute raised in the CMA does not come under the purview of Section 92(1) CPC, as the Trust is neither charitable nor a religious one. Rather, the Trust has been created to impart technical education, which is a Public Trust.

The Opposite Parties contended that the impugned order under Annexure-4 being an administrative order no revision under Section 115 CPC is maintainable. The impugned order cannot be placed in the category of ‘case decided’. Thus, Section 115 CPC is not attracted in the instant case. No prejudice has been caused to the Petitioners, more particularly the Petitioner No.2, in view of leave granted to institute the suit. It is categorically stated that the order under section 92 being administrative in nature, no civil revision is maintainable against the said order. He further contended that while granting the application under Section 92 (1) CPC, the Court need not go into the details of the contentions of the parties. It has to see, on application of mind, and record a prima facie finding that the ingredients of Section 92 (1) CPC are satisfied.

The Court held that there is nothing in the petition under Section 92(1) CPC which would suggest that the Opposite Party Nos.1 to 6 are seeking declaration of their personal or individual right. Opposite Party Nos.1 to 6 claim themselves to be the villagers of Chhendipada where the institution situates. Since the Trust has been created for imparting technical education to the students of the locality, the Petitioners have interest in the said Trust. Applicability of principles of res judicata is a mixed question of fact and law. Since learned District Judge has only recorded a prima facie satisfaction while adjudicating the petition under Section 92(1) CPC, he is not required to delve into veracity of the allegation at that stage. Thus, the issue of res judicata, if raised, can be adjudicated in the suit itself. The petition was therefore rejected.

From left to right – straw craft from ganjam and dhenkanal, displayed in the
second floor corridor, New Building of the High Court