The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO. 1143 OF 2022 Ashok Kumar Sharma -versus- O.S.R.T.C., Sambalpur and others …. Petitioner Mr. S.S. Rao, Advocate …. Opp. Parties CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 09.03.2023 3. 1. 2. This matter is taken up through hybrid mode. Order dated 5th April, 2022 (Annexure-6) passed by learned Additional District and Sessions Judge, Kuchinda in FAO No. 5 of 2015 is under challenge in this CMP, whereby dismissing the appeal, learned appellate Court confirmed the order dated 29th April, 2011 (Annexure-5) passed by learned Civil Judge (Senior Division), Kuchinda in CMA Nos.1 and 2 of 2008 (arising out of C.S. No.8 of 2008). 3. Mr. Rao, learned counsel for the Petitioner submits that the suit has been filed by Opposite party No.1, namely, Odisha State Road Transport Corporation (for short ‘OSRTC’) for declaration of right, title and interest over ‘B’ Schedule land and for recovery of possession through Court. It is the case of the Plaintiff-Opposite Party No.1 that an area of Ac.0.72 decimals of land (Schedule-‘A’ land) was leased out in its favour on 8th August, 1962 by the Government of Odisha for construction of Bus Stand and Garage of OSRTC etc. As the land could not be utilized and remained vacant, the OSRTC parted with an area of Page 1 of 4 // 2 // Ac.0.13 decimals of land of Schedule-‘A’ with Defendant No.1- Opposite Party No.2, namely, Notified Area Council, Kuchinda by executing an agreement on 3rd January, 2000. It was agreed upon that the Opposite Party No.2 would pay Rs.2,000/- per month to the Plaintiff towards rent for utilizing the said land. It was also stipulated therein that no construction without permission of the Plaintiff shall be undertaken over the said land. Defendant Nos.3 to 16, who are the members of local Puja Committee, have constructed shop rooms over the said area and are performing Puja from the income by letting out those shop rooms. 4. Along with the plaint, the Plaintiff filed an application under Order XXXIX Rules 1 and 2 C.P.C. in CMA No.2 of 2008. CMA No.1 of 2008 was also filed under Order XL Rule 1 CPC. Learned trial Court while dismissing the CMA No.2 of 2008 vide its order dated 29th April, 2011 (Annexure-5) directed each of the Petitioner and Opposite Party Nos.3 to 16, i.e. Defendant Nos.3 to 16, to pay rent of Rs.500/- per month and deposit the same in Court, which will enure to the benefit of successful party. It is his submission that when the application under Order XXXIX Rules 1 and 2 C.P.C. was dismissed, no further order could have been passed in the said application. Further, the order passed by learned trial Court is also not in terms of Order XL Rule 1 C.P.C. Being aggrieved by the said order, the Defendant No.4-Petitioner preferred FAO No. 5 of 2015, which was also dismissed vide order dated 5th April, 2022 confirming the order (Annexure-5) passed by learned trial Court. Page 2 of 4 // 3 // 5. Mr. Rao, learned counsel further submits that the Petitioner along with Defendant Nos.3 and 5 to 16 are occupying shop rooms by making construction from their own sources. The land occupied by them is not covered either under Schedule ‘A’ land or Schedule ‘B’ land. Thus, no order to deposit the rent in Court could have been passed by learned trial Court. As such, the impugned orders under Annexures-5 and 6 are not sustainable and are liable to be set aside. 6. Although notices were issued to the Opposite Party Nos.1 and 2, none appears on their behalf at the time of hearing of CMP. Tracking report of Postal Department confirms delivery of notice on them. Hence, notice on Opposite Party Nos.1 and 2 is treated to be sufficient. 7. Considering the submission made by learned counsel for the Petitioner and on perusal of the record, it appears that there is serious dispute with regard to ownership of Schedule ‘B’ land. It appears from the record that private Defendants are occupying the area of Ac.0.03 decimals only. It is not in dispute that the suit Schedule ‘B’ land covers the area over which constructions are stated to have been made by Defendant Nos.3 to 16. Merits of respective case of parties shall be considered at the time of adjudication of the suit basing upon the materials available on record. But, to protect the lis and not to put the succeeding party at loss, learned trial Court has made the arrangement by directing each of Defendant Nos.3 to 16 to deposit Rs.500/- per month before learned trial Court by allowing CMA No.1 of 2008 filed under Order XL Rule 1 CPC. Page 3 of 4 // 4 // 8. True it is that learned trial Court after dismissing the interim application under Order XXXIX Rules 1 and 2 C.P.C. has passed such an order. On a close reading of the order under Annexure-5, it appears that learned trial Court was not inclined to pass any order of injunction, but in order to protect the lis and not to put the successful party at loss, learned trial Court allowed the application for appointment of receiver by making the arrangement as stated above. While rejecting an application under Order XXXIX Rules 1 and 2 C.P.C., the Court is not denuded of the power to exercise its discretion under Order XL Rule 1 CPC to make an arrangement to protect the lis and interest of the parties. 9. In that view of the matter, this Court finds that learned trial Court has committed no error in passing the impugned order under Annexure-5. Learned Appellate Court has also not committed any error in dismissing the appeal and upholding the direction to each of Defendant Nos.3 to 16 to deposit rent of Rs.500/- per month before learned trial Court. 10. Accordingly, the CMP being devoid of any merit stands dismissed. Urgent certified copy of this order be granted on proper application. bks (K.R. Mohapatra) Judge Page 4 of 4