The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: A.R.-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 20-Feb-2024 11:02:15 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 53 of 2024 Rabindra Baral Petitioner Mr. Alok Kumar Panda, Advocate .... Kanchan Muduli and others Opp. Parties Mr. Swayambhu Mishra, Advocate …. -versus- CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 16.02.2024 2. 1. This matter is taken up through hybrid mode. 2. Order dated 4th January, 2024 (Annexure-8) passed by learned Senior Civil Judge, Bhubaneswar in IA No.1 of 2023 (arising out of CS No.1917 of 2023) is under challenge in this CMP, whereby an application filed under Section 151 CPC has been rejected. 3. Mr. Panda, learned counsel for the Petitioner submits that during pendency of the suit, an application in IA No.1 of 2023 was filed by the Plaintiffs and learned trial Court vide order dated 30th September, 2023 directed both parties to maintain status quo over Plot No.57 (Schedule ‘A’ land). During subsistence of the order of status quo, Defendants started construction over the ‘A’ schedule land for which an application under Order XXXIX Rule 2-A CPC is pending. Since Defendants/Opposite Parties proceeded with the construction, an application under Section 151 CPC was filed to direct the Dhauli PS to implement the order of status quo. Said application was rejected vide order dated 7th November, 2023. Page 1 of 4 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: A.R.-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 20-Feb-2024 11:02:15 // 2 // Assailing the same, Petitioners filed CMP No.1580 of 2023 before this Court, which was disposed of vide order dated 21st December, 2023 setting aside the said order and remitting the matter for fresh adjudication keeping in mind the ratio in the case of Smt. Manoj Manjari Mohapatra and another Vs. Sri Kapila @ Kapilendra Mohapatra and another, reported in 2021 (II) ILR-CUT- 230. Pursuant to such direction, the petition under Section 151 CPC was taken up for consideration afresh and the impugned order under Annexure-8 has been passed. 4. Mr. Panda, learned counsel for the Petitioner further submits that learned trial Court while adjudicating the matter, raised doubt with regard to the allegation made in the petition under Section 151 CPC as to whether the construction is being made over Plot No.57. Since the petition was filed supported by an affidavit, learned trial Court should have believed the same in absence of material to the contrary. If learned trial Court had any doubt, it could have deputed a commission for verification. Without resorting to the same, learned trial Court held that no material is placed to show that construction is made over Plot No.57 more particularly when Defendants/Opposite Parties are making construction over Plot No.53, which is far away from the Schedule ‘A’ land and rejected the petition. While disposing of the application, learned trial Court also held that the ratio in the case of Smt. Manoj Manjari Mohapatra (supra) is not applicable to the case at hand. 4.1 It is further submitted that when an allegation is made that construction is being made over Plot No.57, the Dhauli PS Page 2 of 4 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: A.R.-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 20-Feb-2024 11:02:15 // 3 // should have been directed to implement the order of status quo over Schedule ‘A’ land. By directing so, the Opposite Parties will not be prejudiced as they have specifically taken a stand that they are making construction over Plot No.53, which is recorded in their names. He, therefore, prays for setting aside the impugned order under Anenxure-8 and to direct Dhauli PS to implement the order of status quo over the Schedule ‘A’ land. 5. Mr. Mishra, learned counsel for Opposite Parties vehemently opposed the above submission and files objection to the CMP in Court, which is taken on record. In the said objection, it is stated that the Plaintiffs/Petitioners tried to mislead the Court by interpolating the record. It is submitted that there is no material on record to show that Opposite Parties are making construction over Plot No.57. In the objection to the petition under Section 151 CPC, Opposite Parties have taken a specific stand that they are making construction over Plot No.53. Inherent power under Section 151 CPC should be used in an exceptional case, as held in the case of Smt. Manoj Manjari Mohapatra (supra) and learned trial Court having found that there is no material to show that the construction is being made in violation of the order of status quo, rejected the petition. So, he prays for dismissal of the CMP. 6. Considering the rival contentions of learned counsel for the parties and on perusal of record, this Court finds that although allegation has been made by the Petitioner that Opposite Parties in violation of the order of status quo are making construction over Schedule ‘A’ land pertaining to Plot No.57, but Page 3 of 4 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: A.R.-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 20-Feb-2024 11:02:15 // 4 // no material is placed before this Court in support of the same. In course of hearing, Mr. Panda, learned counsel for the Petitioner submitted that since a statement is made on affidavit, the Court should have believed it in absence of any material to the contrary. The affidavit itself is not sacrosanct to accept the allegation made by the Petitioner with regard to violation of order of status quo. Some materials should have been produced by the Petitioner to invoke inherent power under Section 151 CPC, which should be used sparingly in exceptional cases. Admittedly, the application under Order XXXIX Rule 2-A CPC is pending in which adjudication with regard to violation of the order of status quo will be made. 7. Upon hearing learned counsel for the parties, this Court is of the considered view that Petitioner having not produced any material to show that the construction is in fact being made over Plot No.57 and not on Plot No.53, as alleged by Opposite Parties, learned trial Court has not committed any error of jurisdiction or law in not entertaining with the application under Section 151 CPC. 8. Hence, the CMP being devoid of any merit stands dismissed. Issue urgent certified copy of the order on proper application. (K.R. Mohapatra) Judge s.s.satapathy Page 4 of 4