KHAGESWAR BISWAL Vs. BRAHMANANDA BISWAL

JUDGEMENT

(1.) The most important question that arises in this case for consideration is, whether the Learned Courts below have acted contrary to law in not permitting the Appellant to contest the suit as Khageswar Biswal, as according to him, he has been wrongly described as Khageswar Behera in the plaint.

(2.) THE Plaintiff filed the suit for declaration to the effect that Defendant No. 1 described as Khageswar Behera, son of late Narendra Behera of Gobanga is the adopted son of said Narendra Behera and has no right, title or interest in the property left by late Dinabandhu Biswal. For better appreciation of the case, the Genealogy is reproduced below: I -Genealogy Dinabandhu Biswal - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -| | | |Parameswar Maheswar Khageswar Achutananda Brahmananda W -Manika (Adopted) W -Suka| - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -Rabi Kabi Chhabi Gandu Panchu II -GenealogyAnanda Behera - - - - - - - - - - - - - - - - - - - - - - - - -| |Narendra GangadharW -Pitei Saria - - - - - - - - - - - - - - - - - -| |Khageswar Hrusikesa On institution of the suit, notices were issued. It may be noted that the present Appellant was described in the cause title of the plaint as Khageswar Behera, son of late Narendra Behera. On 17.11.1994, the present Appellant appeared through Sri B. Nayak & filed a petition under Order 1, Rule 10 of the Code of Civil Procedure, 1906 (hereinafter referred as the 'Code' for brevity) & prayed for adding his real name in the plaint Thereafter, the suit suffered some adjournments & on 10.05.1995, Defendant No. 1 was set ex parte & the case was posted to 08.09.1995 for objection to the petition under Order 1, Rule 10 of the Code. It is noted that though Defendant No. 1 was set ex parte, his petition was kept pending for filing objection by the Plaintiff. On 22.07.1998, the Learned Civil Judge (Junior Division) took note of the objection of the Plaintiff to that petition to the effect that the Defendant No. 1 is neither a necessary nor a proper party in the suit & hence, rejected the petition.

(3.) AGAINST the Judgment of the original Court, the present Appellant preferred an appeal before the Addl. District Judge, Kendrapara bearing Title Appeal No. 14 of 2000. Learned Addl. District Judge though granted leave to the present Appellant to prefer appeal, the said Appellate Court did not allow the petition for additional evidence filed by the present Appellant. The Learned Appellate Court held that Order 41, Rule 27 of the Code does not envisage filling of lacuna at the late stage arising out of a deliberate negligence in part of the party. The Learned Appellate Court dismissed the appeal. Hence, the Appellant has come up with the Second Appeal.