THE INDIAN LAW REPORTS (CUTTACK SERIES, MONTHLY) Containing Judgments of the High Court of Orissa and some important decisions of the Supreme Court of India. Mode of Citation 2019 (III) I L R - CUT . SEPTEMBER -2019 Pages : 1 to 208 Edited By BIKRAM KISHORE NAYAK, ADVOCATE LAW REPORTER HIGH COURT OF ORISSA, CUTTACK. Published by : High Court of Orissa. At/PO-Chandini Chowk, Cuttack-753002 Printed at - Odisha Government Press, Madhupatna, Cuttack-10 Annual Subscription : 300/- All Rights Reserved. Every care has been taken to avoid any mistake or omission. The Publisher, Editor or Printer would not be held liable in any manner to any person by reason of any mistake or omission in this publication ii ORISSA HIGH COURT, CUTTACK CHIEF JUSTICE The Hon’ble Shri Justice KALPESH SATYENDRA JHAVERI B.Sc., LL.B. PUISNE JUDGES The Hon’ble Justice KUMARI SANJU PANDA, B.A., LL.B. The Hon’ble Shri Justice S.K. MISHRA, M.Com., LL.B. The Hon’ble Shri Justice C.R. DASH, LL.M. The Hon’ble Shri Justice Dr. A.K. RATH, LL.M., Ph.D. The Hon’ble Shri Justice BISWAJIT MOHANTY, M.A., LL.B. The Hon’ble Shri Justice Dr. B.R. SARANGI, B.Com.(Hons.), LL.M., Ph.D. The Hon’ble Shri Justice DEBABRATA DASH, B.Sc. (Hons.), LL.B. The Hon’ble Shri Justice SATRUGHANA PUJAHARI, B.A. (Hons.), LL.B. The Hon’ble Shri Justice BISWANATH RATH, B.A., LL.B. The Hon’ble Shri Justice S.K. SAHOO, B.Sc., M.A. (Eng.&Oriya), LL.B. The Hon’ble Shri Justice PRAMATH PATNAIK, M.A., LL.B. The Hon’ble Shri Justice K.R. MOHAPATRA, B.A., LL.B. The Hon’ble Shri Justice Dr. A.K.MISHRA, M.A., LL.M., Ph.D. ADVOCATE GENERAL Shri ASHOK KUMAR PARIJA, B.Com., LL.B. REGISTRARS Shri RADHA KRISHNA PATTNAIK, Registrar General Shri CHITTA RANJAN DASH, Registrar (Judicial) Shri DILIP KUMAR MISHRA, Registrar (Administration) iii N O M I N A L I N D E X PAGE Amina Bibi & Ors. -V- Sk. Md. Hanif & Ors. 66 Ashish Kumar Rout -V- State of Orissa & Anr. 206 Aswini Kumar Daspattanayak-V- State of Odisha & Ors. 16 Benu @ Benudhar Naik –V- State of Odisha. 189 Binapani Jena & Ors. -V- Cuttack Municipal Corporation & Ors. 201 Brundaban Bag -V- State of Orissa. 56 Budhiram Barik & Ors.-V- Gopi Satyabhama Karunakar Jogasharma & Anr. 175 Chakradhar Sahoo -V- Central Electricity Supply Utility, Orissa & Ors. 48 Chandrabhanu Mishra -V- Governing Council of Institute of Physics, 112 Bhubaneswar & Ors. Gandharba Swain & Anr. -V- Sudarsan Lenka & Ors. 79 Jagabandhu Nayak-V- State of Orissa. 155 Kalpana Sahoo & Anr.-V- State of Odisha. 160 Khedu Chandra Behera -V- Draupadi Behera & Ors. 63 M/s. Canara Nidhi Ltd. -V- M. Shashikala & Ors. 1 M/s. Odisha Tourism Development Corporation Ltd & Anr.-V- Surendra 32 Kumar Mallick & Ors. Maitri Mohanty & Ors. -V- State of Odisha & Ors. 165 Narahari Das @ Babaji Das -V- State of Orissa. 150 Nrusingha Charan Dash @ Babulu -V- State of Odisha. 177 Prasanna Kumar Panda -V- Central Electricity Supply & Utility of Orissa 25 & Ors. Rabi Narayan Panda -V- State of Odisha & Ors. 9 Sambaria @ Nirakar Patra -V- State of Orissa. 52 Sanghamitra Moharana -V- Balaram Moharana And Anr 197 Sanjay Kumar Kar -V- Principal-Cum-Secretary, Bhadrak Institute of 98 Engineering And Technology & Anr. Santosh Kisan Sapkale -V- Republic of India 90 iv Senior Divisional Manager, National Insurance Company Ltd. -V- Suresh 69 Kumar Behera & Anr. State of Orissa-V- Rathlal Dhanwar @ Kunda. 37 ACTS Acts & No. 1996-26…. Arbitra tion And Conciliation Act, 1996 1950 Constitution of India, 1950 1908-5….. Code of Civil Procedure, 1908 1973-2….. Code of Criminal Procedure, 1973 1923-8….. Employees Compensation Act, 1923 1937-18…. Hindu Women’s Right to Property Act, 1937 1947- 14…. Industrial Dispute Act, 1947 1860-45…. Indian Penal Code 1860 1908-16…. Registration Act, 1908 v S U B J E C T I N D E X PAGE ARBITRATION AND CONCILIATION ACT, 1996 – Section 34 – Application under – The question arose as to whether the parties can adduce evidence to prove the specified grounds in sub- section (2) to Section 34 of the Act – Held, No – Reasons indicated. M/s. Canara Nidhi Ltd. –V- M. Shashikala & Ors. 2019 (III) ILR-Cut…… 1 CIVIL PROCEDURE CODE, 1908 – Order 1 Rule 10 – Application under – Rejected – Petitioners are legal heirs of Proforma Defendant No. 5 – Petition seeking impletion enclosing voter identity and Aadhar card – Held, there is no reason to disbelieve the public documents – Petitioners are proper parties to the suit. Amina Bibi & Ors. -V- Sk. Md. Hanif & Ors 2019 (III) ILR-Cut…… 66 Order XVIII Rule 01 – Right to begin – When the defendant is liable to begin – Held: - (1) the defendant has admitted all the material facts alleged by the plaintiff in the plaint. (2) the defendant contends that either in point of law or on some other additional facts stated in the written statement, the plaintiff is not entitled to the whole or any part of the relief, which he seeks. Binapani Jena & Ors.-V- Cuttack Municipal Corporation & Ors. 2019 (III) ILR-Cut…… 201 Order 18 Rule 1 – Right to begin – Suit for partition – Some of the defendants pleaded in the written statement that there was prior partition of the suit property – Plaintiff filed application seeking an order to defendants to begin first – Allowed – Writ petition by one of the defendant challenging the order allowing the defendant to begin first – Scope of interference – Held, the plaintiff in all cases has the right to begin, exception being that when the defendant admits the facts and contends either in the point of law or on some additional facts alleged by the defendants vi the plaintiff is not entitled to any part of the relief which he seeks in the suit and in that event only the defendant is to begin. Khedu Chandra Behera -V- Draupadi Behera & Ors. 2019 (III) ILR-Cut…… 63 CONSTITUTION OF INDIA, 1950 – Article 12 – State – Meaning and scope of being amenable to writ jurisdiction against the private body – Held, a private body performing public duty is amenable to writ jurisdiction and writ can be issued to any person or authority for enforcement of any of the fundamental rights or in any other purpose. Sanjay Kumar Kar -V- Principal-Cum-Secretary, Bhadrak Institute of Engineering And Technology & Anr. 2019 (III) ILR-Cut…… 98 Article 16 r/w Article 311 – Provisions under – Petitioner appointed temporarily as a peon in 1989 in the existing vacancy for a period of 89 days or till regular appointment is made – Subsequently the petitioner was disengaged in 2007 – Plea that no opportunity of hearing was given as he has acquired a right under Article 311 of the Constitution – Records show petitioner was never appointed on regular basis and no order of regularization has been filed –Throughout his service period, he had worked on temporary/adhoc basis – Petitioner was never appointed with concurrence of the Finance Department and was appointed in violation of Article 16 of the Constitution of India – So Article 311 of the Constitution is not applicable as the case of the petitioner is not coming under the purview of same as he has neither been removed nor dismissed nor any stigma has been attached to his conduct – Thus, he was a backdoor entrant, who has been rightly shown the door – Writ petition dismissed. Rabi Narayan Panda-V- State of Odisha & Ors. 2019 (III) ILR-Cut…… 9 Articles 226 & 227 – Suit under section 6 of the specific relief Act, 1963 filed for unlawful dispossession from immovable property – Suit dismissed – Challenging the same revision filed – Revision also dismissed – Writ petition filed against the dismissal vii – Maintainability of both the revision as well as writ petition questioned – Bar in sub-section (3)&(4) of section 6 pleaded – Provisions interpreted – Held, in view of sub-section 3 no revision is maintainable and as per sub-section 4, an aggrieved can challenge by filing the suit for establishing the title in the property & thereby recovering the possession of the property – Hence in view of the above provisions the writ petition is not maintainable. Budhiram Barik & Ors.-V- Gopi Satyabhama Karunakar Jogasharma & Anr. 2019 (III) ILR-Cut…… 175 CRIMINAL PROCEDURE CODE, 1973 – Section 124(4) – Order of maintenance denied by the family court on the ground of refusing to live with her husband without ‘sufficient cause’ – Order of the family court challenged – Petitioner/wife pleaded that she was subjected to continuous physical & mental torture – Husband/opposite party pleaded that, petitioner was not willing to live with him and performing the matrimonial obligation, left the maternal house on her own volition – Whereas the evidence in contrary to show that, petitioner was tortured and humiliated in her in-laws house, driven out, taken back & the same was repeated again & again – “Sufficient cause” provided as per the provision – Held, a women who is tortured in her in- laws house physically and mentally cannot be denied of maintenance if she leaves her husband’s company for that reason and lives separately – Therefore impugned judgment is perverse and not sustainable in the eye of law and hence herby set aside. Sanghamitra Moharana-V- Balaram Moharana And Anr 2019 (III) ILR-Cut…… 197 Section 318 – Reference to High Court against the order of conviction – Offence u/s 302/34 of IPC – Conviction – Opposite party/Accused (assailant) is a deaf, dumb person & unable to understand the proceeding of the Court – Out of several prosecution witnesses certain witnesses have not been examined in presence of Opp.Party/assailant – There is non availability of Court certificate to the extent that the expert had explained the evidence in sign language to the level of understanding of assailant viii – Non compliance of mandatory provisions of sections 273,279 & 317 of the Cr.P.C pleaded – Held, when there has been non- compliance of the mandatory provisions of Cr.P.C, we are of the considered view that the same has caused immense prejudice to the Opp.Party in which the trial has been conducted – In the result, the judgment of conviction is set aside.