BIBHUTI BHUSAN SWAIN Vs. KHIROD CHANDRA SWAIN

JUDGEMENT

(1.) In this writ petition, the present petitioners, who are Defendants in C.S. No.135 of 2008 (pending in the court of learned Civil Judge (Sr. Divn.), 2 nd Court, Cuttack) being aggrieved with the order dated 2.4.2011 have approached this Court for quashing the impugned order at Annexure-1 i.e. the order passed refusing the abatement of the aforementioned suit under Section 4(4) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (for short the 'Act').

(2.) Admittedly, Civil Suit No.135 of 2008 was filed by the Plaintiff who is the Opposite Party in this writ petition for a declaration that the compromise decree in Title Suit No.105 of 1989 dated 12.3.1991 was a collusive and fraudulent decree and thus no title is derived by the Defendant No.1 basing upon such a fraudulent decree. When the said suit was pending in the court below Defendant No.2 was set exparte and accordingly one petition was filed by the Defendant No.2, namely, the present Opposite Party no.2 on 16.3.2011 under Order 9, Rule 7 of the Civil Procedure Code (for short 'C.P.C.') for setting aside the exparte order as against him and to permit him to adopt the written statement so filed by the Defendant No.1. Similarly, on the very same day i.e. on 16.3.2011 the Defendant No.1 filed another petition for abatement of the suit under Section 4(4) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act. The learned court below considered both the petitions on merit and after hearing the parties dis-allowed the prayer of Defendant No.1 for abatement of the suit but allowed the prayer of Defendant No.2 in setting aside the exparte order passed against him. The learned court below allowed Defendant No.2 to be brought on record and accepted his prayer for adopting the written statement which has been filed by the Defendant No.1.

(3.) In this writ petition challenge has been made to the order of the learned court below with regard to refusal of the prayer for abatement of the suit as consolidation operation was going on in respect of the suit village when the suit was filed and also the Trial Court did not take into consideration the order of this Court in W.P(C ) No.9109 of 2007 dated 20.9.2010 wherein this Court up-held the order of abatement of the suit i.e. C.S.No.174 of 2006 in which also the present parties were involved. Learned counselappearing for the petitioners in course of argument drew my attention to the order of this Court in W.P(C) No.9109 of 2007 dated 20.9.2010 and also by placing reliance in a decision of this Court in Akuli Mallik @ Jena v- Kusa Jena and others,1990 1 OrissaLR 496 contended that the learned Trial Court should have passed order with regard to abatement of the suit in view of the consolidation operation which going on in respect of the suit village. It was also very seriously contended that the suit of the plaintiff is not at all maintainable in view of the provisions of Section 96(3) and order 43 Rule-1-A (2) and Order 41, Rule 27 of the Civil Procedure Code. It was also contended that when a party claims that he had either no consent or consent was not voluntary the bar under Order 23, Rule-3-A of the C.P.C. is applicable and an appeal would lie as the decree passed on compromise operates "in presenti". In that context, reliance was placed in a judgment of this Court reported in Hakimatun Nisa Bibi v- Md. Fakiruddin Khan and others, 1993 1 OrissaLR 90.