The High Court
Case Details
Order No. 01. IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO.1093 OF 2023 Rudra Prasad Kar and another …. Petitioners Mr. S.S. Rao, Senior Advocate along with Mr. Tusar Kumar Mishra, Advocate -versus- Sukanta Kumar Pradhan and others …. Opp. Parties
Legal Reasoning
Mr. Bibekananda Bhuyan, Advoate (For Opp. Party Nos.1 and 2) Mr. Sidhartha Misra, Advocate (For Opp. Party No.3) CORAM:
Decision
JUSTICE K.R. MOHAPATRA ORDER 22.09.2023 1. This matter is taken up through hybrid mode. Order dated 13th September, 2023 (Annexure-15) passed by 2. learned Senior Civil Judge, 1st Court, Cuttack in I.A. No.01 of 2023 (arising out of C.S. No.296 of 2023) is under challenge in this CMP, whereby entertaining an application under Section 94 read with Section 151 C.P.C., learned trial Court directed the parties to maintain status quo with regard to their respective possession over the suit property and not to create any third party interest subject to the outcome of the I.A. filed under Order XXXIX Rules 1 and 2 C.P.C. 3. Mr. Rao, learned Senior Advocate for the Petitioners submits that the suit has been filed by the Opposite Party No.3 for declaration and other consequential relief. Along with the plaint, the Opposite Party No.3 also filed an application under Order XXXIX Rules 1 and 2 C.P.C. (I.A. No.01 of 2023). Since there Page 1 of 2 // 2 // was urgency in the matter, an application under Order XXXIX Rule 3 C.P.C. was also filed along with the said petition. Learned trial Court took up the petition under Order XXXIX Rule 3 C.P.C. on 6th April, 2023. However, the present Petitioners had already entered appearance on the said date. Accordingly, dismissing the application under Order XXXIX Rule 3 C.P.C., learned trial Court directed the Petitioners to file objection to the petition under Order XXXIX Rules 1 and 2 C.P.C. It is also submitted that the Petitioners have already filed objection to the I.A. No.01 of 2023 filed under Order XXXIX Rules 1 and 2 C.P.C. At that juncture, the Opposite Party No.3 filed an application under Section 94 read with Section 151 C.P.C. to pass an ad interim order of injunction. Although an application questioning the maintainability of such petition was filed, learned trial Court without passing any order on such petition, entertained the application on merit and passed the impugned order under Annexure-15. 4. Mr. Rao, learned Senior Advocate further submits that when an objection with regard to maintainability of the petition under Section 94 read with Section 151 of C.P.C. was raised either by filing objection or by filing separate petition, learned trial Court before disposing of the petition filed under Section 94 read with Section 151 C.P.C. should have recorded a finding with regard to maintainability of such petition. However, learned trial Court holding that entertaining such an application will amount to mini trial, did not consider the same and passed the impugned order. Hence, he prays for setting aside the impugned order under Annexure-15 and to direct learned trial Court to dispose of I.A. Page 2 of 5 // 3 // No.01 of 2023 on its own merit, giving opportunity of hearing to the parties concerned. 5. Mr. Mishra, learned counsel for Opposite Party No.3, who has entered appearance through caveat, submits that the petition under Order XXXIX Rule 3 C.P.C. was never dismissed as submitted by Mr. Rao, learned Senior Advocate for the Petitioners. As on the date of consideration of the petition under Order XXXIX Rules 1 and 2 C.P.C., the Defendants-Petitioners had already entered appearance, there was no occasion on the part of the Court to entertain such an application. Section 94 (c) being a substantive provision to pass a temporary order of injunction, learned trial Court for the interest of justice and to protect the lis, exercised its inherent power under Section 151 C.P.C. and passed the impugned order, which is operative till disposal of I.A. No.01 of 2023. Thus, learned trial Court has committed no error in passing the impugned order. 6. Considering the rival contentions of the parties and on perusal of the record, it appears that along with I.A. No.01 of 2023, an application under Order XXXIX Rule 3 C.P.C. was filed. The said application was taken up for consideration on 6th April, 2023. As the Opposite Parties had already entered appearance on the said date, there was no occasion on the part of the Court to take up such application. Thus, learned trial Court has committed no error in directing the present Petitioners to file objection to the I.A. No.01 of 2023 filed under Order XXXIX Rules 1 and 2 C.P.C. 7. When the matter stood thus, an application appears to have been filed under Section 94 read with Section 151 C.P.C. When the application under Order XXXIX Rules 1 and 2 C.P.C. is pending Page 3 of 5 // 4 // for consideration and objection to the said I.A. has already been filed, there was no occasion on the part of the Court to entertain any application for interim protection in absence of a case made out for the same. Perusal of the order under Annexure-15 does not disclose that there was exigency to pass such an order. There is also no material on record to show that there was legal impediment on the part of learned trial Court to entertain the petition under Order XXXIX Rules 1 and 2 C.P.C. on merit. At that juncture, by entertaining an application under the substantive provision under Section 94(c) read with Section 151 C.P.C., more particularly when an application under Order XXXIX Rules 1 and 2 C.P.C. is pending, learned trial Court has exercised its discretion illegally by making a mini trial in adjudicating the said application and passing a restraint order. It further appears that although an application questioning the maintainability of the petition under Section 94 read with Section 151 C.P.C. was filed, but no finding with regard to maintainability of such application has been recorded by learned trial Court while disposing of the petition. Hence, the impugned order under Annexure-15 is not sustainable and is accordingly set aside. 8. This Court taking note of the undertaking made by learned counsel for the Petitioners to the effect that the Petitioners will not change the nature and character of the suit land and not create any third party interest over the suit property directs that I.A. No.01 of 2023 shall be disposed of as expeditiously as possible preferably within a period of fifteen days hence, giving opportunity of hearing to the parties concerned. If, for any reason, it will not be possible on the part of learned trial Court to dispose of the petition within the Page 4 of 5 // 5 // aforesaid period, then it should be disposed of within seven days thereafter, but not later than that. Parties are directed to file undertaking before learned trial Court to maintain status quo over the suit property and not to create any third party interest till disposal of I.A.No.01 of 2023. 9. With the aforesaid observation and direction, the CMP is disposed of. Urgent certified copy of this order be granted on proper application. bks (K.R. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: BIJAY KUMAR SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 25-Sep-2023 12:28:15 Page 5 of 5