The Indian Law Reports (Cuttack Series, Monthly)
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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 (II) I L R - CUT . MAY-2019 Pages :1 to 224 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 J. P. DAS, M.A., LL.B. The Hon’ble Shri Justice Dr. A.K.MISHRA, M.A., LL.M., Ph.D. ADVOCATE GENERAL Shri SURYA PRASAD MISRA, B.Sc., LL.B. REGISTRARS Shri RADHA KRISHNA PATTNAIK, Registrar General Shri MANAS RANJAN TRIPATHY, Registrar (Administration) Shri TARA PRASAD RATH, Registrar (Vigilance) Shri CHITTA RANJAN DASH, Registrar (Judicial) Shri PRATAP KUMAR PATRA, Registrar (Inspection) iii N O M I N A L I N D E X PAGE Adaita Kumar Biswal -V- R.D.C Northen Division, Sambalpur & Ors. 164 Basanta Behera & Ors. -V- Menakabala Behera & Ors. 112 Bauribandhu Patro -V-State of Orissa. 160 Bikar @ Bikrtan Mallik -V- State of Orissa. 178 Debendra Kumar Panda -V- State of Odisha (Vig.) 151 Dilip Kumar Pattnaik -V- Himansu Pattnaik. 218 Kailash Chandra Sahoo -V- State of Odisha & Ors. 121 M/s. Agarwal Rasayan -V- N.A.L.C.O Ltd., Bhubaneswar. 172 M/s. Oriental Insurance Company Ltd. Sahid Nagar, Bhubaneswar -V- 206 Smt. Pratima Karmi & Ors. M/s. Vedanta Ltd. & Anr. -V- N.A.L.C.O Ltd. 23 Madhusudan Dash -V- State of Odisha (Vig.) 212 Md. Allauddin Khan -V- The State of Bihar & Ors. 1 Oriental Insurance Company Ltd. -V- Krushna Kamar & Ors. 117 Purna Chandra Pradhan -V- CESCO, Bhubaneswar & Ors. 137 Parayakunnil Johan Mathai (P.J. Mathai) -V- Rabi Ranjan Sahoo & Ors. 106 Pennar Aluminium Company LTD Secunderabad-II, (A.P.) -V- Chairman- 167 Cum-M.D, NALCO. Ltd. Rajendra Acharya @ Rajendra Kumar Acharya & Ors. -V- 145 Smt. Dharitri Mishra. Sakrajit Das & Ors. -V- State of Orissa & Ors. 128 Sanjay Kumar Das & Ors. -V- State of Odisha & Anr. 16 Sanjida Bibi & Ors. -V- State of Orissa & Ors. 186 Sanju Lenka & Ors. -V- State of Odisha & Ors. 88 Satyasiva Sundar Nayak -V- Secretary, B.S.E, Orissa & Ors. 7 Sk. Ayub -V- Authorized Officer-Cum-Asst. Conservator of Forest & Ors. 4 Subash Chandra Biswal -V- Bamadev Patra. 81 Sumit Kumar Behera & Anr. -V- State of Odisha. 189 The Managing Director, O.S.F.C & Anr. -V- Smt. Gita Devi & Anr. 109 iv Tulashi Mallik & Ors.-V- Jagannath Mallik & Ors. 97 Uma Rout -V- Ajaya Bhatta & Ors. 100 ACTS Acts & No. 1996-26….. Arbitration And Conciliation Act, 1996 1950 Constitution of India, 1950 1908-5….. Code of Civil Procedure, 1908 1973-2….. Code of Criminal Procedure, 1973 1870-7….. Court Fees Act, 1870 1972- 5….. Forest Act, 1972 1988-59…. Motor Vehicle Act, 1988 1985-61…. Narcotic Drugs And Psychotropic Substances Act, 1985 1972-21…. Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 1964-1…. Orissa Grama Panchayat Act, 1964 1972-6…. Orissa Prevention of Land Encroachment Act, 1972 1988-49…. Prevention of Corruption Act, 1988 1954-37…. Prevention of Food Adulteration Act, 1954 2005-43…. Protection of Women From Domestic Violence Act, 2005 RULES & REGULATION 1. Regulation of Board of Secondary Education, Orissa v S U B J E C T I N D E X ARBITRATION AND CONCILIATION ACT, 1996 – Section 34 PAGE – Proceeding under – The question arose as to whether the arbitration proceeding can be taken as a civil suit? – Held, No – Reasons discussed. M/s. Agarwal Rasayan -V- National Aluminium Company Ltd., Bhubaneswar. 2019 (II) ILR-Cut……… 172 CIVIL PROCEDURE CODE, 1908 – Order 7 Rule 11 – Rejection of Plaint – Suit for partition in respect of schedule ‘A’ and ‘B’ properties – Defendant no.1 asserts that the plaintiff has no cause of action against her in respect of schedule ‘B’ land –The question does arise as to whether a part of the plaint can be rejected ? – Answer is no – Held, only part of plaint cannot be rejected – If no cause of action is disclosed the plaint as a whole must be rejected – Other circumstances – Indicated. Uma Rout -V- Ajaya Bhatta & Ors. 2019 (II) ILR-Cut……… 100 Order 8 Rule 6-C – Provisions under – Suit for partition – Counter claim filed by one defendant against two other defendants – The question arose as to whether a defendant can file a counter claim against a co-defendant ? – Held, No – Reasons indicated. Basanta Behera & Ors. -V- Menakabala Behera & Ors. 2019 (II) ILR-Cut……… 112 Order 8 Rule 9 – Provisions under – Leave to file additional written statement – When can be allowed? – Held, ordinarily at a belated stage leave for filing additional written statement is not usually granted but the court should be liberal while allowing the application to amend the pleading – However the court must bear in mind the statutory limitation provided in CPC as per the proviso appended to order 6 Rule 17. Parayakunnil Johan Mathai -V- Rabi Ranjan Sahoo & Ors. 2019 (II) ILR-Cut……… 106 vi Order 20 Rule 18 (2) – Suit for partition – Decree in suit for partition of the Property – Preliminary decree granting specific share of the parties before the final decree – Whether can be considered and when? – Held, the inevitable conclusion is that Order 20 Rule 18 CPC envisages passing of a decree for the partition of property or for the separate possession of a share therein – Sub-rule (2) mandates that if the decree relates to any other immovable property or movable property, the court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required – The words “declaring the rights of the several parties interested in the property” in sub-rule (2) would indicate that shares of the parties, other than the plaintiffs, have to be taken into account while passing preliminary decree – Preliminary decree for partition is only a declaration of the rights of the parties and the shares they have in the joint family or coparcenary property – The final decree should specify the division by metes and bounds and it needs to be engrossed on stamped paper – Unless the right of the parties are declared, final decree proceeding cannot be levied. Tulashi Mallik & Ors.-V- Jagannath Mallik & Ors. 2019 (II) ILR-Cut……… 97 CRIMINAL PROCEDURE CODE, 1973 – Section 439(2) – Provisions under – Prayer for cancellation of bail – Bail obtained by suppressing material facts which is amounting to fraud on court – Principles for such cancellation – Discussed – Bail cancelled. Sanjida Bibi & Ors. -V- State of Orissa & Ors. 2019 (II) ILR-Cut……… 186 Section 482 – Inherent power of High Court – Exercise of – Prayer for quashing of criminal proceeding – Principles to be followed – Held, the High court has no jurisdiction to appreciate the evidence of the proceedings under section 482 Cr. P. C. because, whether there are contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties. vii Md. Allauddin Khan -V- The State of Bihar & Ors. 2019 (II) ILR-Cut……… 1 Section 482 – Inherent power – Quashing of the order of cognizance for the alleged offence under Section 441 of Indian Penal Code, 1860 – Petitioner took a long term lease of land – Lease terminated by giving notice to quit – In spite of quit notice the lessee remained in possession – Civil suits pending between parties – On a complaint being filed by the Lessor cognizance was taken under section 441 – Whether possession of such property amount to criminal trespass? – Held, No. Dilip Kumar Pattnaik -V- Himansu Pattnaik. 2019 (II) ILR-Cut……… 218 CRIMINAL TRIAL – Delay in lodging the FIR – Offence under section 376 (2) (f) – Rape of a victim who is below twelve years old – Whether can be fatal for prosecution? – Held, No – This Court can take judicial notice of the fact that ordinarily the family of the victim would not intend to get a stigma attached to the victim – Delay in lodging the first information report in a case of this nature is a normal phenomenon and can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family.