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2002 DIGILAW 66 (ORI)

Bhatta Naik v. Kamalakanta Dwibedi

2002-02-02

P.K.TRIPATHY

body2002
JUDGMENT P. K. TRIPATHY, J. — In this appeal appellant challenges the legality and correctness of the order dated 13.11.2000 passed under Order 39, Rule 1, C.P.C. by learned District Judge, Keonj¬har in M.J.C. No. 19 of 2000. 2. The factual position is almost admitted on record to the effect that the present petitioner/appellant instituted Title Suit No. 44 of 1995 in the Court of Civil Judge (Sr. Division), Keonjhar, with the claim of right, title, interest and confirma¬tion of possession over the suit scheduled land, a part of which is covered by the impugned order of injunction. Defendant No. 1 in that suit, who is respondent No. 1 in this appeal, filed a counter claim claiming right, title, interest and confirmation of possession, alternatively recovery of possession over a substan¬tial part of the suit scheduled land. At the stage of hearing, because of the default in appearance by the plaintiff to partici¬pate in the hearing, learned Civil Judge dismissed the suit for default of the plaintiff and adjudicated the counter claim ex parte and allowed the counter claim of the respondent No. 1. The order portion in that judgment which forms part of the decree, reads as hereunder : “The suit of the plaintiff is dismissed with cost. The counter claim of the defendant is allowed on contest against the plaintiff with cost. The right, title, interest and possession of D-2 over the suit land mentioned in the counter claim is hereby declared, possession thereof is hereby confirmed. Plaintiff is hereby directed to give vacant possession of the suit premises mentioned in the counter claim to D-2 within 15 days from today failing which D-2 is at liberty to pray Court to recovery posses¬sion of the same. The defendant is entitled to mesne profit from 2.9.96 till recovery of possession of the suit land and premises mentioned in the counter claim as per the calculation made in the body of the judgment. The defendant is also entitled to interest @ 12% per annum over the decretal dues, electric, water tax etc.” It appears from the above order that learned Civil Judge did not make a distinction between the distinct nature of the claim for confirmation of possession and the prayer for recovery of posses¬sion and granted both the reliefs in the decree. The defendant is also entitled to interest @ 12% per annum over the decretal dues, electric, water tax etc.” It appears from the above order that learned Civil Judge did not make a distinction between the distinct nature of the claim for confirmation of possession and the prayer for recovery of posses¬sion and granted both the reliefs in the decree. But the latter part of the above quoted order clearly makes out a case that what the learned Civil Judge intended was to grant a decree for recovery of possession with grant of mesne profit. When the matter stood thus, the appellant filed an application under Order 9, Rule 9, C.P.C. to set aside the order of dismissal of the suit. That was rejected by the learned Civil Judge (Sr.Division). Appellant challenged that order in the Court of District Judge, Keonjhar in Misc. Appeal No. 20 of 2001, and as per the judgment dated 10.1.2002 learned District Judge, Keonjhar has concurred with the finding and the order relating to non-restoration of the suit of the appellant. As against that, the appellant has filed Civil Revision No. 39 of 2002, which as proposed by the parties, shall be taken up for consideration after disposal of Title Appeal No. 15 of 2000. So far as the decree in the counter claim of the re¬spondent No. 1 is concerned, appellant filed Title Appeal No. 15 of 2000 in the Court of District Judge, Keonjhar. On the applica¬tion under Order 41, Rule 5, C.P.C. moved by the appellant learned District Judge stayed operation of the said judgment and decree (the counter claim). Notwithstanding that, on the application of respondent No. 1 vide the aforesaid M.J.C. No. 19 of 2000, filed in that Title Appeal No. 15 of 2000, learned District Judge has granted ad interim order of injunction in favour of respondent No. 1 by injuncting the appellant not to enter upon plot No. 286, which property is a part of the counter claim and covered by the decree in the counter claim. 3. 3. It appears form the impugned order dated 13.11.2000 that though the appellant drew attention of the learned District Judge, inter alia, to the factum that a stay order granted by that Court staying operation of the judgment and decree was operative, yet, without considering implications thereof and without vacating the stay order learned District Judge granted the order of ad interim injunction. In that respect the aforesaid facts, sequence of events and absence of requirement of law relating to irreparable loss or injury and balance of convenience clearly indicates that the relief for ad interim injunction could not have been granted in favour of defendant No. 1. Thus it is found that the learned District Judge has failed to exercise the jurisdiction vested in him in lawful manner and granted the order of injunction whimsically and arbitrarily. Hence the impugned order of ad interim injunction stands vacated, the impugned order is set aside and the appeal is allowed. Appeal allowed.