IN THE COURT OF THE DISTRICT JUDGE,

KHORDHA at BHUBANESHWAR
RFA No: 104/2018

Shaheen Akhtar & others …Appellants

-VRS-
Rabeya Khatoon & others …Respondents

Memo of Appearance

I/We Manawar Ahmad Khan and Samarendra Mishra have

power for defendants/respondents no. 1,2 and 5 in C.S. No.
1178/2012in the court of the 1st Additional Civil Judge Sr.
Divn., Bhubaneshwar out of which the present proceeding has
arisen and I/we have been instructed by the said defendants who
are the respondents to appear on their behalf in the present
proceeding.

Advocate
IN THE COURT OF THE DISTRICT JUDGE,
KHORDHA at BHUBANESHWAR
RFA No: 104/2018

Shaheen Akhtar & others …Appellants

-VRS-
Rabeya Khatoon & others …Respondents

Advance Petition to call for the records

1) That the aforesaid matter has been posted on 11/09/2018.

2) That the above named respondents have appeared in the

aforesaid appeal on today.

3) That in order to pass necessary orders your honour will be

pleased to call for the records.

By the Respondents

(T) The Advocate

IN THE COURT OF THE DISTRICT JUDGE,
KHORDHA at BHUBANESHWAR
RFA No: 104/2018
Shaheen Akhtar & others …Appellants
-VRS-
Rabeya Khatoon & others …Respondents
Petition on behalf of the respondent’s No. 1, 2 and 5 to hear the
aforesaid appeal dispensing the notice against respondent’s no.
3, 4, 6 and 7
The above named respondents most respectfully beg to state as
follows:

1) That the aforesaid respondents were defendant’s no. 3, 4, 6

and 7 in the learned lower court.
2) That in the learned lower court summons were sufficient
against them and they have deliberately and intentionally did
not appear as the case was pending since 2012 to 2018 and
the learned lower court set Ex-Parte them. The plaintiffs /
appellants have instituted a bogus litigation with a malafied
intention to linger the proceeding for years together and
furthermore the notice would be fruitless if issued against
them and the same situation will arise as was happened in the
learned lower court. The RFA needs to be expeditious
disposal.

Therefore the respondents humbly pray that your

honour for the interest of justice, equity and good conscience
be pleased to dispense the notice against the respondents no.
3, 4, 6 and 7 respectively and hear the appeal expeditiously
and for this act of your honours kindness the respondents
shall be remain obliged

By the Respondents

(T) The Advocate

IN THE COURT OF THE DISTRICT JUDGE,
KHORDHA at BHUBANESHWAR
RFA No: 104/2018
Shaheen Akhtar & others …Appellants
-VRS-
Rabeya Khatoon & others …Respondents
Petition on behalf of the respondent’s not to pass further stay of
the suit pending in the learned lower court
The above named respondents most respectfully beg to state as
follows:
1) That the appellant have preferred the aforesaid appeal against
an order passed by the learned lower court on 25/07/2018 and
on the same date the suit properties except schedule ‘A’ have
been deleted from the record.
2) That the appeal by the appellants was filed on 31/07/2018
and the order of stay was passed on 01/08/2018 and the same
was communicated to the learned lower court by the
appellants on dated 21/08/2018, therefore the order of stay
granted by this Hon’ble court has lost its force as the order
was implemented immediately on 25/07/2018.
3) That be it submitted here that no decree has been passed by
the learned lower court as against which the appellants have
preferred this appeal, misleading and suppressing the fact on
record they obtained an order of stay without jurisdiction
which is illegal and abuse of the process of the court.
4) That the appeal is without jurisdiction and needs to be
disposed of immediately.
Therefore the respondents humbly pray that your
honour in order to prevent the abuse of the process of the
court and to meet the ends of justice further stay be not
granted in the aforesaid appeal and hear the appeal as soon as
fixing a date by the Hon’ble court and for this act of your
honours kindness the respondents shall be remain obliged.
By the Respondents

(T) The Advocate

 Affidavit
I, Shaikh Asaf Ali, aged about 50 years, S/o: Late Abdul Jabbar
resident of plot no: 160, HIG Duplex, Dharama Vihar,
Jagamara, Bhubaneshwar, do hereby solemnly affirm and state
as follows:
1) That I am one of the respondents in the suit and taking steps
and instructed to file this petition on behalf of other
respondents.
2) That the facts stated above are all true to my knowledge,
belief and information.

Identified by
Deponent
Advocate, Puri

Certified that this affidavit has been

typed to the instruction of the deponent.

Advocate
IN THE COURT OF THE DISTRICT JUDGE,
KHORDHA at BHUBANESHWAR
RFA No: 104/2018
Shaheen Akhtar & others …Appellants
-VRS-
Rabeya Khatoon & others …Respondents
Citations of case laws filed on behalf of the defendants no. 1, 2
&5

I) 2012(II) OLR – 762

1) Or. 7 R. 11 of CPC:- Point of law which goes to the
root of the case can be raised at any time.
2) Benami Transaction Prohibition Act Sec. 3 & 4:- All
the suits and appeals filed after 19.05.1988 are hit by
the prohibition contained in Sec. 4 of the Act 1988.
3) Mohammadan Law:- The Succession opens only after
death of the owner during lifetime of the owner his sons
or daughter have no claim over the suit property.
4) Mohammadan Law:- No recognization of concept of
Joint Family.
II) 2012(I) OLR – 569
1) Sec. 100 of CPC:- No cause of action to file the suit
during the lifetime of the defendant No. 1, admittedly
the Defendant No. 1 is the absolute owner of the
property. No cause of action on the date of filling of the
suit.
2) Or. 7 R.11 of CPC:- For rejecting the plaint the
averments of the plaint are to be gone into. Meaningless
litigations should not be permitted to occupy the
judicial time of the court. Plaintiff has absolutely no
interest over the suit property, plaint can be rejected for
want of cause of action.
III) AIR 2011 Jharkhand – 28
1) Muslim Law:- Properties in the name of a female. Same
belongs to her exclusively under muslim law there is no
concept of jointness or any concept of that property is
purchased from joint nucleus of head of joint family.
IV) AIR 2017 (SC) 2653
1) At paragraph 8 at page 2654:- Averments in plaint not
disclosing cause of action filling of suit vexatious and
barred by law as per Or. 7 R. 11, plaint is liable to be
rejected. Bogus litigation will end at the earlier stage.
V) Mohammadan Law by J. Hidaitullah
1) Sec 52:- Birth Right not recognized.
2) Sec 57:- Joint Family and Joint Family business. There
is no provision of Mohammadan Law recognizing a
joint family.

By the Defendant No. 1, 2 & 5

(T) The Advocate

 Order Sheet
RFA No. 104/18
Dt: 31/07/18: Memorandum of appeal under Or. 41 R.1 r/w Sec. 96 of
the C.P.C. is presented by Advocate Sri L. Sarangi and
his associates for the appellants being aggrieved by the
order dtd. 25/07/18 passed in C.S No. 1178/12 by the
learned 1st Addl. Civil Judge (Sr. Divn.) BBSR, praying
to set aside the impugned order dtd. 25/07/18. Another
petition is filed supported by an affidavit praying to
stay the effect of the impugned order dtd. 25/07/18 till
the disposes of the present appeal. Memo of
appearance, certified copy of the impugned order,
process fees and requisites are filed. Register. Put up on
01/08/18 with office note.

District Judge
Dt: 01/08/18: Office note is put up and seen. Heard on the point of
admission as well as the stay petition. The defect as
pointed out in the office note vide Sl. No. 7 is ignored.
Admit issue notices to the respondents by both ways
fixing 30/08/18 arrising SRS & PAS.
Taking into consideration of the stay petition as well as
the submission advanced by the learned counsel for the
appellant stay petition of the impugned order dtd.
25/07/18 passed by the 1st Addl. Civil Judge (Sr. Divn.)
BBSR in C.S. No. 1178/12 till appearance of the
respondents. Put up on the date fixed.

District Judge