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: 12-Feb-2024 19:27:19 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 200 of 2023 Dushmanta Barik Petitioner .... Mr.Sushri Sunil Kanta Nayak, Advocate -versus- Hemalata Barik and others Opp. Parties …. Mr. Sourav Suman Bhuyan, Advocate (For Opposite Party Nos.1 and 2) CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 09.02.2024 IA No.42 of 2024 & CMP No.200 of 2023 3. 1. 2. This matter is taken up through hybrid mode. The IA has been filed for expeditious hearing of the CMP. Accordingly, taking consent of learned counsel for both sides, the CMP is taken up for disposal. 3. Order dated 27th January, 2023 (Annexure-10) passed in FAO No.28 of 2022 is under challenge in this CMP, whereby dismissing the appeal learned District Judge, Bhadrak confirmed the order dated 29th April, 2022 (Annexure-8) passed by learned Civil Judge (Senior Division), Bhadrak in CMA No.67 of 2022 [arising out of CS No.79 of 2020-I], dismissing an application under Order XXXIX Rule 4 CPC. 4. Mr. Nayak, learned counsel for the Petitioner submits that CS No.79 of 2020 has been filed for partition. As per the registered partition deed, both parties to the suit are residing over different parcels of the suit land by constructing their residential house. Although Plaintiffs have construction a pucca house over a portion of Plot Nos.369 and 370, father of the Petitioner due to paucity of funds, had constructed a thatched residential house with clay walls 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: 12-Feb-2024 19:27:19 // 2 // on Plot No.369, which was completely damaged by Cyclone, namely, Jawad on 2nd December, 2021. Before that, learned trial Court considering IA No.122 of 2020 filed under Order XXXIX Rules 1 and 2 CPC directed both the parties to maintain status quo over the suit property vide order dated 9th August, 2021, As the thatched house of the Petitioner was completely damaged due to the Cyclone Jawad, a petition under Order XXXIX Rule 4 CPC was filed for construction of a pucca house over a portion on which their thatched house existed. They are now staying in cowshed with much difficulty. Unless the Petitioner is allowed to construct a house over the portion on which their old thatched house existed, he will suffer irreparable loss. Learned trial Court, vide order under Annexure-8 holding that the Petitioner has not filed any document to show that the residential house was damaged in Cyclone, Jawad, rejected the petition. 4.1 In appeal, learned District Judge, vide order under Annexure-10 held that the suit land being joint family ancestral property and both the parties have been directed to maintain status quo over the same together with the fact that there is no change in circumstance after passing of the impugned order, no relief under Order XXXIX Rule 4 CPC can be granted. As such, he rejected the petition. It is his submission that learned appellate Court proceed with a misconception that the Petitioner has constructed a pucca house over Plot Nos.369 and 370. In fact, the Plaintiffs/Opposite parties have constructed a pucca house over a portion over Plot Nos.369 and 370. It further appears that neither learned trial Court nor the appellate Court delved into the 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: 12-Feb-2024 19:27:19 // 3 // difficulties of the Petitioner which compelled him to seek for a relief to construct a house over Plot No.369. Hence, he prays for setting aside orders under Annexures-8 and 10 and to permit him to make construction of his house over Plot No.369 over which their old kacha residential house existed. 5. Mr. Bhuyan, learned counsel for contesting Opposite Parties submits that IA No.122 of 2020 filed under Order XXXIX Rules 1 and 2 CPC was disposed of on 9th August, 2021 on contest directing both parties to maintain status quo over the suit property. The said order was never challenged and is still in force. The Petitioner in order to frustrate the order of status quo has filed this application. He has his pucca house over Plot No.378 and not over Plot No.369, as alleged. Hence, a petition under Order XXXIX Rule 4 CPC is not maintainable, as rightly held by both the learned Courts. Since learned Courts have concurrently held that Petitioner is not entitled to relief claimed, the CMP should be dismissed. There is no material on record to come to a conclusion that the house of the Petitioner was in fact demolished during Cyclone, Jawad. Hence, he prays for dismissal of the CMP. 6. Considering the rival contentions of the parties and on perusal of record, it appears that the Petitioner has categorically stated in the written statement that they had their thatched house with clay walls over Plot No.369. In the petition under Order XXXIX Rule 4 CPC, it was stated that Plaintiffs/Opposite Parties have pucca house over a part of Plot Nos.369 and 370. Learned appellate Court confusing the same, opined that the pucca house 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: 12-Feb-2024 19:27:19 // 4 // over Plot Nos.369 and 370 belongs to the Petitioner. Accordingly, it held that there is no change in circumstances. 7. It of course appears from materials on record that there is no sufficient material to show that the Petitioner had in fact suffered any damage or loss to his residential house in Cyclone, Jawad. Thus, he should have been given an opportunity to produce materials in support of their case. 8. Since it is submitted by Mr. Nayak, learned counsel that the Petitioner is staying in a cowshed with his family, this Court feels that an opportunity should be given to both parties to produce materials in support of their respective cases. 9. In view of the above, the orders under Annexure-8 and 10 are set aside. The matter is remitted to learned Senior Civil Judge, Bhadrak to adjudicate the petition under Order XXXIX Rule 4 CPC (CMA No. 67 of 2022) afresh giving opportunity of producing materials in support of their cases and to take part in the hearing to both the parties. 10. Since the Petitioner’s claim for construction of his residential house is pending since 2021, an endeavour should be made for early disposal of the CMA No. 67 of 2022. It is further made clear that this Court has not expressed any opinion on merit of the case of either of the parties. 11. With the aforesaid observation and direction, the CMP is disposed of. The IA also stands disposed of. Issue urgent certified copy of the order on proper application. s.s.satapathy (K.R. Mohapatra) Judge Page 4 of 4