RAGHUNATH MUDRA Vs. NILAKANTHA MUDRA

JUDGEMENT

(1.) THIS Writ Petition has been filed by the petitioner challenging the order dated 23.4.2013 passed by the learned Civil Judge (Junior Division), Puri in C.S No.81 of 2004 allowing the application filed by defendant nos.1 to 3 under Order 16, Rule 1 of C.P.C to issue summon to one Radhamani Dibya @ Panda as a witness.

(2.) THE brief facts of the case are that the petitioner as plaintiff filed C.S No.81 of 2004 before the learned Civil Judge (Senior Division), Puri for declaration of his right, title and interest to perform 'Mudra Seva Pali' in Lord Jagannath Temple, Puri as successor of one Jagannath Mudra and for declaration that the order passed in Sadhibandha Case No.4 of 1995 by the Administrator, Shree Jagannath Temple, Puri is illegal, contrary to the evidence on record and inoperative. He also prayed for permanent injunction restraining defendant nos.1 to 5 from preventing or obstructing the plaintiff from performing 'Mudra Seva Pali' as per his turn. The plaintiff claimed that he is the son of Jagannath Mudra. Being the successor he claimed for ten days of 'Mudra Seva Pali' in the temple of Lord Jagannath prior to filing of T.S No.89/410 of 2006/1995 by one Nilakantha Mudra against Jaya Krushna Mudra claiming the entire 'Mudra Seva Pali' as Lokanath Mudra, the father of Nilakantha Mudra, was only rendering the said Sevapali excluding his two brothers Chinmanani, the father of Jayakrushna Mudra and Jagannath Mudra. It is stated that Jagannath Mudra died issueless as bachelor. As per Records of Right of Shree Jagannath Temple published in the year 1951 -52 'Mudra Seva Pali' is a 'Sadhibandha Seva'. Unless a person ties the saree, he cannot do 'Mudra Seva Pali'. Jagannath had not tied saree though Lokanath and Chintamani tied sarees. Lokanath was performing 'Mudra Seva Pali' and Chintamani was not performing the 'Mudra Seva Pali', as such the plaintiff has claimed the entire Sevapali as in both the suits the dispute relates to 'Mudra Seva Pali'. Earlier in W.P.(C) No.16370 of 2005 disposed of on 21.7.2006 this Court directed for analogous hearing of C.S No.81 of 2004 with T.S No.89/410 of 1995/2002 as some of the parties as well as issues are common. This Court further directed that it is open to the trial court, if it comes to a finding that the decision of subsequent suit will depend upon the result in the earlier suit, it will proceed with the trial of the suits one after another as the law is well settled that by consolidation it cannot be inferred that Court after consolidation ceases to have jurisdiction to dispose of the suit separately.

(3.) LEARNED counsel appearing for opposite parties submitted that Jagannath died issue less and a bachelor therefore the claim of the plaintiff to be son of Jagannath is not tenable as he himself has admitted that his mother name is Radhamani. Therefore, Radhamani is to be summoned so that the real truth can be revealed. He further submitted that the trial court has rightly allowed the application under Order 16, Rule 1 (2) of C.P.C which need not be interfered with. He also stated that the plaintiff has filed documents vide Ext.28 the Voters' list of 2004 excluding the name of Radhamani whereas the Voters' list vide Ext.T (Voters' list of 2004) showing the name of Radhamani in Holding No.87 which is similar to Ext.28. P.W.2, Sudhansu Sekhar Pattnaik stated at paragraph -29 of his cross -examination that Delua Karan, Tadhau Karan, Patajoshi Mohapatra and Bhitarachhu Mahapatra gave reports to the Temple administration that Jagannath Mudra died issueless. Ext.30 statement of Jagannath Mudra given in Sadhibandha Case No.16 of 1981, which was marked as objection and the said statement was discussed in Ext.A was the final decision as the same has not been challenged before any higher forum and has reached its finality. He has also submitted that summon was issued to Radhamani in C.S No.81 2004 and the service report of the said summon reveals that she has received the same. However, she being an aged lady put her L.T.I., therefore, she needs to be examined as a witness. He further submitted in O.S No.270 of 1983 filed by Jagannath Mudra, Radhamani filed an application to be substituted in place of Jagannath Mudra, who died on 21.9.1987 wherein the defendants in the said suit have objected to the said application for substitution stating that said Radhamani is not the legally married wife of the original plaintiff, she is mistress of Jagannath Mudra. She left the house of her real husband Das Panda and being a mistress she has gave birth to Ramakrushna, Raghu and Mira, who are not the legal heirs of Jagannath. However, the said suit was dismissed for non prosecution. Hence examination of said Radhamani is necessary. In support his contention he has relied on the decisions reported in AIR 1987 ORISSA 179 and AIR 1966 SC 735.