SOUBHAGYA RANJAN KANUNGO Vs. PRAFULATA MOHAPATRA

JUDGEMENT

(1.) In W.P.(C) No. 9676 of 2007, the Petitioner Soubhagya Ranjan Kanungo has sought to challenge the order dated 30.07.2007 passed in T.S. No. 442 of 1994 by the learned Second Addl. Civil Judge, (Senior Division), Cuttack, whereas in W.P.(C) No. 15217 of 2007 the Petitioner has sought to challenge the order dated 13.8.2007 passed in C.M.A. No. 117 of 2007 arising out of R.F.A. No. 58 of 2003 by the learned District Judge, Cuttack. Since both the writ applications arise out of the self -same proceeding and the parties are the same, these writ applications are taken -up together for consideration.

(2.) It would be relevant to note that, the Petitioner (Defendant) had preferred a Second Appeal R.S.A. No. 183 of 2004 before the High Court and the same came to be dismissed by Judgment dated 16.5.2007. It is pertinent to note that the Petitioner (Defendant) thereafter, filed a petition (while the petition under Sec. 28 of the Specific Relief Act, before the learned Civil Judge (Sr. Division)) before the, Second Additional District Court, Cuttack, to rescind the contract on the ground that the same was no more enforceable in law and that the decree had become un -executable. That petition filed by the Petitioner -Defendant came to be rejected by the learned trial Court by an order dated 30.7.2007 with the finding that the Plaintiff (opposite party) had deposited the balance consideration money and stamp duty through challan. That order is the subject matter of challenge in W.P.(C) No. 9676 of 2004. It appears that the Petitioner also preferred a similar application under Sec. 28 of Specific Relief Act, before the learned District Judge, Cuttack and the same was registered as CMA No. 117 of 2007. That application came to be dismissed by the learned District Judge by an order dated 13.8.2007 which is the subject matter of challenge in W.P.(C) 15217 of 2007.

(3.) Mr. Bhuyan, learned Counsel for the Petitioner herein submitted that the impugned order dated 30.7.2007 passed in T.S. No. 442 of 1994 by the learned Civil Jude on the Petitioner 's application under Sec. 28 of the Specific Relief Act, as well as dismissal of similar petition filed by the self -same Petitioner before the learned District Judge in CM.A. No. 117 of 2007 by Judgment dated 13.8.2007 are arbitrary and illegal on account of non -application of judicial mind. In essence, the contentions advanced on behalf of the Petitioner (Defendant) is to the effect that once the learned District Judge in the first appeal had fixed the date for compliance of the order and further the learned District Judge had extended the period of compliance till 14.5.2004, but since opposite party (Plaintiff) had failed to deposit the requisite stamp paper, the suit was liable to be rejected and the petition under Sec. 28 of the Specific Relief Act, ought to have been allowed.