The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 20-Jun-2024 18:10:44 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO.335 OF 2024 Chandrika Priyadarshini …. Mr. Sudhanshu Sekhar Jena, Advocate Petitioners -versus- State of Odisha and another
Legal Reasoning
…. Opp. Parties Mr. Amiya Kumar Mishra, Additional Government Advocate CORAM:
Decision
JUSTICE K.R. MOHAPATRA ORDER 19.06.2024 Order No. 01. 1. This matter is taken up through hybrid mode. 2. Order dated 1st November, 2023 (Annexure-1) passed by learned Civil Judge, (Senior Division), Bhubaneswar in IA No.01 of 2023 (arising out of CS No.2097 of 2023) is under challenge in this CMP, whereby an application under Order XXXIX Rule 3 CPC filed by the Plaintiff-Petitioner, has been rejected. 3. Mr. Jena, learned counsel for the Petitioner submitted that the suit has been filed against Government Officials. An application under Section 80(2) CPC was also filed along with the plaint to grant leave to pursue the suit dispensing with service of notice to the Defendants-Opposite Parties under Section 80(1) CPC. Said application was allowed vide order dated 1st November, 2023. Along with the plaint, the Plaintiff-Petitioner had also filed an application under Order XXXIX Rules 1 and 2 CPC. As there was urgency in the matter, the Petitioner has filed an application under Order XXXIX Rule 3 CPC to dispense with service of notice on the Opposite Parties and to take up the application under Order XXXIX Rule 3 CPC for an ex parte ad interim order of injunction. The said application being rejected, this CMP has been filed. Page 1 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 20-Jun-2024 18:10:44 4. It is his submission that there was no bar under Order XXXIX Rule 3 CPC to entertain the application even if an application under Section 80(2) CPC has been allowed. Restrictions under Section 80(2) CPC is of no consequence while entertaining an application under Order XXXIX Rule 3 CPC. It provides that in an extremely urgent case, the Court dispensing with service of notice on Defendants-Opposite Parties, may pass an ex parte ad interim order of injunction, where delay in disposal of the petition for injunction may frustrate the purpose of which it is filed. It is his case that learned trial Court failed to appreciate the same and passed the impugned order. The ex parte ad interim order is passed only for thirty days and not beyond that. Thus, the Court has the obligation to protect the interest of the Petitioner in the interregnum till entertaining the application under Order XXXIX Rules 1 and 2 CPC on merit. These vital aspects were lost sight of by learned trial Court while adjudicating the matter. Hence, the impugned order under Annexure-1is not sustainable. 5. Mr. Mishra, learned Additional Government advocate vehemently objects to the same. It is his submission that no interim relief can be granted without giving opportunity of hearing to the Government in a case where an application under Section 80(2) CPC has been allowed. Learned trial Court observing the same has rightly rejected the petition under Order XXXIX Rule 3 CPC as not maintainable. Hence, he prays for dismissal of this CMP. 6. In order to appreciate the rival contentions of the parties, this Court went through the provision under Section 80(2) CPC and Order XXXIX Rule 3 CPC which are as under: “ 80(2) A suit to obtain an urgent or immediate relief against the Government (including the Government of the State of Page 2 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 20-Jun-2024 18:10:44 Jammu and Kashmir) or any public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the Court, without serving any notice as required by sub-section (1); but the Court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit: Provided that the Court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of sub-section (1). Order XXXIX – XXX XXX XXX 3. Before granting injunction, Court to direct notice to opposite party. The Court shall in all case, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party: Provided that, where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant- (a) to deliver to the opposite party, or to send to him by registered post, immediately after the order granting the injunction has been made, a copy of the application for injunction together with- (i) a copy of the affidavit filed in support of the application; (ii) a copy of the plaint; and (iii) copies of documents on which the applicant relies, and (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.” 6.1 No doubt, Rule 3 of Order XXXIX CPC makes a provision to dispense with service of notice on the Defendants-Opposite Parties to entertain an application under Order XXXIX Rules 1 and 2 CPC. In case, it appears to the Court that object of granting the injunction will be defeated by delay in entertaining the application for injunction, the Court may exercise the discretion under Order XXXIX Rule 3 CPC. But, the provision under Page 3 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 20-Jun-2024 18:10:44 Section 80(2) CPC makes it abundantly clear that where the Court grants leave to the Plaintiff to file the suit dispensing with service of notice on the Government under Section 80(1) CPC, no interim or other relief can be granted without giving an opportunity of hearing to the Government. Thus, the provision under Section 80(2) CPC being mandatory in nature, it overrides the provisions under Order XXXIX Rule 3 CPC, which is the discretion of the Court. 7. In that view of the matter, this Court is of the considered opinion that learned trial Court has committed no error in rejecting the petition under Order XXXIX Rule 3 CPC holding that in view of provision under Section 80(2) CPC, a prayer under Order XXXIX Rule 3 CPC cannot be granted. 8. Accordingly, I find no merit in this CMP, which stands dismissed. Urgent certified copy of this order be granted on proper application. Rojalin (K.R. Mohapatra) Judge Page 4 of 4