The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 102 OF 2023 Sambhu Sharma …. Petitioner Mr. Lalit Kumar Maharana, Advocate Suresh Sharma and others -versus- …. Opp. Parties None CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 22.03.2023 3. 1. This matter is taken up through hybrid mode. 2. The Petitioner in this CMP seeks to assail the order dated 2nd May, 2022 (Annexure-10) passed by learned Senior Civil Judge, Rourkela in I.A. No.18 of 2020 (arising out of C.S. No.39 of 2018), whereby an application under Section 151 C.P.C. filed for implementation of the interim order passed under Order XXXIX Rules 1 and 2 C.P.C. in F.A.O. No.9 of 2016, has been rejected. 3. Mr. Maharana, learned counsel for the Petitioner submits that C.S. No.39 of 2018 has been filed for declaration of right, title, and interest of the Plaintiff-Petitioner and for permanent injunction. Along with the plaint, the Petitioner filed I.A. No.14 of 2016 under Order XXXIX Rules 1 and 2 C.P.C. to restrain the Opposite Parties from interfering with his peaceful possession of the suit land and to reconnect the power supply to the suit premises. The said application was dismissed vide order dated 11th May, 2016. Assailing the same, the Petitioner filed F.A.O. No.9 of 2016, which was allowed vide order dated 31st October, Page 1 of 5 // 2 // 2016 (Annexure-4) passed by learned 1st Additional District Judge, Rourkela with the following direction: “14. I accordingly allow the appeal, set aside the impugned order of the learned Civil Judge (Senior Division), Rourkela and in consequence allow the injunction application made by the appellant U/o. 39, Rule-1 & 2 C.P.C. read (sic) with Section 151 C.P.C. in IA No.14/16, arising out of CS No.39/16 in the Court of Civil Judge (Senior Division), Rourkela and direct the respondent No.1 not to interfere with the peaceful possession of plaintiff till disposal of the suit and also direct further by way of interlocutory mandatory injunction for immediate re-connection of the electric connection to the suit rooms.” 4. Since the power supply to the suit premises was not restored, the Petitioner filed an application under Section 151 C.P.C. in I.A. No.18 of 2020, which was disposed of on contest on 9th November, 2021 (Annexure-7) with the following order: “The Interim Application be and the same is allowed on contest against the O.P. but in the circumstances with no cost. The Op is hereby directed to comply the order of Appellate Authority by re-connecting electric line to the suit house within seven days, failing which the petitioner is at liberty to enforce the order of the court through process of the Court. Accordingly, the Interim Application is disposed of.” 5. In spite of the aforesaid direction the Opposite Parties did not implement the said order. Hence, an application under Order XXXIX Rule 2-A read with Section 151 C.P.C. was filed in I.A. No.128 of 2021, which is pending for consideration. In the meantime, four years have elapsed. But, the order passed in F.A.O. No.9 of 2016 was not complied with. The original Plaintiff died in the meantime. Thus, the Petitioner finding no other alternative and in view of the liberty granted by learned trial Court vide order dated 9th November, 2021 under Page 2 of 5 // 3 // Annexure-7 in I.A. No.18 of 2020, filed an application under Section 151 C.P.C. with the following prayer: “It is therefore prayed that the Hon’ble Court may be pleased to pass order to reconnect the electric line through the Bailiff of the Court by going to the suit house stated below for effective action thereof to execute (sic) the same.” Learned trial Court, however, under misconception that an application under order XXXIX Rule 2-A C.P.C. is pending for suitably punish the Opposite Party No.1 for violation of the order of injunction, rejected the same by order dated 2nd May, 2022 under Annexure-11. The Petitioner also filed an application to recall the order under Annexure-11, which was also dismissed vide order dated 19th October, 2022 under Annexure-12. Hence, this CMP has been filed. 6. It is submitted by Mr. Maharana, learned counsel for the Petitioner that when the relief under Order XXXIX Rule 2-A C.P.C. is not sufficient to remedy the grievance of the Petitioner for violation of the order of injunction, the Court can exercise the inherent power under Section 151 C.P.C. to see that the order of injunction is maintained. In the instant case, learned trial Court considering I.A. No.18 of 2020 directed the Opposite Party No.1 to restore the power supply to the suit premises, but the same was not adhered to. While disposing of I.A. No.18 of 2020 vide order dated 9th November, 2021 under Annexure-7, learned trial Court directed that if the Opposite Party No.1 fails to comply with the said order, the Petitioner is at liberty to enforce the same through Court process. Accordingly, the Petitioner filed an application to enforce the order through court Page 3 of 5 // 4 // process. Hence, the said application could not have been rejected, as liberty granted by learned trial Court is still in force. 7. He, therefore, prays for setting aside the impugned order under Annexures-10 and 11 and to direct learned trial Court to restore power supply to the premises of the Petitioner through process of Court. 8. Although notice on the Opposite Party is held to be sufficient as it is validly served, but none appears on his behalf at the time of call. 9. Taking into consideration the submission made by learned counsel for the Petitioner and on perusal of the record, it appears that while restraining the Opposite Party No.1 not to interfere with the peaceful possession of the Plaintiff-Petitioner over the suit land, learned appellate Court in F.A.O. No. 9 of 2016 directed the Opposite Party No.1 to reconnect the power supply to the suit premises. The said order was not implemented. Accordingly, I.A. No.18 of 2020 was filed and vide order dated 9th November, 2021, a direction was made to the Opposite Party No.1 to restore the power supply within a period of seven days, failing which a liberty was granted to the Petitioner to enforce the said order through process of Court. Even after a lapse of four years, the said order was not implemented. Thus, the Petitioner finding no other alternative filed an application in the said I.A. to enforce the order through process of Court. In the circumstances stated above, learned trial Court could not have denied the relief sought for in the petition under Section 151 C.P.C. on the ground that an application under Order XXXIX Rule 2-A C.P.C. is still pending. When the liberty was granted Page 4 of 5 // 5 // and the Petitioner exercised such liberty, the Court has the duty to enforce the said order through the process of the Court. Thus, learned trial Court has failed to exercise the power vested under Section 151 C.P.C. by rejecting the petition. Accordingly, while setting aside the impugned order under Annexure-10 and subsequent order dated 19th October, 2022 under Annexure-12, this Court directs learned trial Court to provide power supply to the suit premises through process of Court within a period of fifteen days from the date of production of certified copy of this order. 10. With the aforesaid observation and direction, the CMP is accordingly disposed of. Urgent certified copy of this order be granted on proper application. ms (K.R. Mohapatra) Judge Page 5 of 5