PARBATI DEI Vs. SUKANTI PATTNAIK

JUDGEMENT

(1.) This C.M.P. involves a challenge to the impugned order dtd. 25/4/2022 passed by the learned Civil Judge (Jr. Divn.), 2nd Court, Cuttack in T.S .No.150 of 1996 thereby partially allowing an application U/o.7 Rule 11 (B) read with Sec. 151 of C.P.C. and in declining to dismiss the suit U/o.7 Rule 11(B) of the C.P.C, directed the plaintiffs to correct the valuation of the suit land as per the market value in the plaint and supply the Court fee accordingly, further also thereby directing for placing the case record to 4/5/2022.

(2.) Mr. Mohanty, learned counsel for the Petitioners taking this Court to the plaint pleadings through paragraph nos.8, 9 and 10 and further to the plaint prayer contended that in whole reading of the pleadings in the above paragraph and the prayer, the plaintiff-Petitioners even though did not mention anywhere that the suit is for declaration of easementary right, but for the clear pleadings and the nature of relief sought for, it appears, the plaintiffs' prayer is in the nature of easementary right and it is also made clear that in addition to claiming an easementary right the plaintiff- Petitioners have also sought for injunction relief involved therein.

(3.) Mr. Swain, learned counsel for the defendant-Opposite Party Nos.1 and 2 appearing through caveat, in his submission taking this Court to the plaint pleadings, prayer and the scheduled of property contended that under no stretch of imagination the suit cannot be limited to a suit requiring declaration of easementary right, as there also involves other declaration and for there is possibility of declaration of title of the parties involved Mr. Swain, learned counsel for the Opposite Party Nos.1 and 2 contended that there has been consideration of submission of the defendants by the trial court appropriately and therefore, there has been right decision requiring no interference therein. So far as reliance of decisions are concerned, Mr. Swain, learned counsel for the Opposite Party Nos.1 and 2 took support of all such decisions again in an attempt to justify his submission in support of the impugned order. Mr. Swain, learned counsel for the Opposite Party Nos.1 and 2 further also referring to the provisions at Sec. 7 of the Act, 1870 contended that the case at hand does not fall within the parameters of Clause 'd' and 'e' and on the other hand it falls within the parameters of Sec. 7(iv)(c) of the Act, 1870. In the process Mr. Swain, learned counsel for the Opposite Party Nos.1 and 2 prayed for dismissal of the C.M.P.