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2012 DIGILAW 534 (ORI)

Secretary, Rotary Club, Puri v. Sri Debakanta Ray

2012-12-10

B.K.MISRA

body2012
JUDGMENT B.K. MISRA, J. : Assailing the order passed by the learned District Judge, Puri in F.A.O. No.40 of 2008 arising out of the order dated 13.5.2008 in the Interim Application No.48 of 2008 of the learned Civil Judge (Jr. Divn.), Puri (Annexures-4 and 3 respectively), the present petitioner has approached this Court by invoking the extra-ordinary jurisdiction under Articles 226 and 227 of the Constitution of India. 2.The present opposite party as plaintiff had instituted Civil Suit No.71 of 2008 praying for decree of permanent injunction restraining the present petitioner who was the defendant in the said suit from raising any construction or obstructing the right of user of plaintiff over the ‘B’ Suit Schedule property claiming that he had purchased the ‘A’ Suit Schedule property by two registered sale deeds on 24.5.2000 from Smt. Binapani Sahoo. According to the plaintiff after purchasing the suit property he got the same mutated in his name and constructed a three storied building which has been let out to Saint Xavier School where the school is running. It is the further case of the plaintiff that abutting the ‘A’ schedule property there is a road which has been described as ‘B’ schedule property and the same has been recorded as a road (RASTA) in the settlement papers since 1927. The said road is used for ingress and egress to the schedule ‘A’ property as a natural right. But the Revenue Authorities changed the ‘Kissam’ of the schedule ‘B’ property from ‘Road’ to ‘Patita’ and leased out the same to Secretary, Rotary Club, Puri, namely, the present petitioner Club which came to the knowledge of the plaintiff when the petitioner Club started making constructions over the ‘B’ schedule property. It is the further case of the plaintiff that along with the suit the plaintiff also filed an application under Order 39, Rule 1 and 2 of the Civil Procedure Code (hereinafter referred to as ‘C.P.C’.) praying for ad interim order of injunction which was registered as I.A. No.48 of 2008. The present petitioner as defendant opposite party on being noticed appeared in the suit and filed his objection. Thereafter, the learned Civil Judge (Jr. Divn.), Puri after hearing the parties by his order dated 13.5.2008 directed maintenance of status quo over the "B" Schedule suit land (Annexure-3). The present petitioner as defendant opposite party on being noticed appeared in the suit and filed his objection. Thereafter, the learned Civil Judge (Jr. Divn.), Puri after hearing the parties by his order dated 13.5.2008 directed maintenance of status quo over the "B" Schedule suit land (Annexure-3). The said order was challenged by the aggrieved defendant-opposite party before the learned District Judge, Puri in F.A.O. No.40 of 2008 and the learned District Judge while affirming the order of the learned Civil Judge (Jr. Divn.), Puri in I.A. No.48 of 2008 dismissed the aforesaid appeal. 3.The present opposite party in his counter affidavit averred that the ‘B’ Suit Schedule property is communal in nature and before grant of lease to the petitioner Club it belonged to the State and the same is being used as a road always as because the adjoining land owners including the plaintiff and others have a natural right to use the same. The specific stand of the present opposite party is that a communal land cannot be alienated as the right of way is attached to the land and not with the title. It is also the stand of the plaintiff that if the petitioner Club would be permitted to proceed with the construction over the ‘B’ Suit Schedule property, irreparable loss would be caused to the students and staff and that will badly hinder the functioning of the school standing over the ‘A’ Suit Schedule property as the ‘B’ schedule property is being used as the access to the school and the right of user of the school road is to be protected. Besides that it is the case of the opposite party that when the Courts below have directed to the parties to maintain status quo over the ‘B’ Suit Schedule property and the impugned orders are speaking orders and when a Revision Petition is pending i.e. Civil Revision No.3 of 2010 before the District Judge, Puri challenging the rejection of the prayer of the petitioner-defendant for rejection of the plaint under Order 7, Rule 11 C.P.C., the impugned orders at Annexures-3 & 4 should not be disturbed in the greater ends of justice and that too in view of the specific observation of this Court while disposing of O.J.C. No.894 of 2001 giving liberty to the parties to resort to the Civil Proceeding where the facts are to be properly traced about the easementary right and the alleged road in question and decision is to be taken in accordance with law. 4.I have heard counsel appearing for the respective parties at length. Mr. Gautam Mukherjee, learned counsel appearing for the petitioner very strenuously urged that when the present opposite party as plaintiff in Civil Suit No.71 of 2008 have not sought for any declaratory relief i.e. declaration of his right or interest over the ‘B’ schedule property, the plaintiff cannot maintain the suit for injunction simplicitor and only on this ground the Courts below should have refused to entertain the prayer for injunction and more so in view of the specific observation of this Court in O.J.C. No.894 of 2001 that this Court did not find any illegality with the lease proceeding. The order of the Courts below directing maintenance of status quo is without jurisdiction simply because of the reason that complicated question of title could only be examined in a property constituted suit for declaration and consequential relief and not in a suit for injunction simplicitor. In that context, Mr. Mukherjee, learned counsel placed reliance on a judgment of the Apex Court as reported in AIR 2008 S.C. 2033 , Anathula Sudhakar v. P. Buchi Reddy (dead) by L.Rs. and others. Besides that other contentions were raised about the maintainability of the suit. 5.Mr. In that context, Mr. Mukherjee, learned counsel placed reliance on a judgment of the Apex Court as reported in AIR 2008 S.C. 2033 , Anathula Sudhakar v. P. Buchi Reddy (dead) by L.Rs. and others. Besides that other contentions were raised about the maintainability of the suit. 5.Mr. B.H. Mohanty, learned counsel appearing for the opposite party contended that non impletion of the State is not at all fatal since the State is not a necessary party in the suit in the Court below as there was no resistance from the State and besides that even if a person has not been impleaded as a party in the original forum the same can be cured during the pendency of the suit as adequate provisions have been made in that regard in the Code of Civil Procedure. It was argued by Mr. Mohanty, learned counsel for the opposite party that when Civil Revision is pending before the learned District Judge, Puri which was filed against the order of the learned Civil Judge (Jr. Divn.) rejecting the prayer of the present petitioner (who was the defendant in the Court below) for rejection of the plaint, that matter cannot be agitated before this forum in a writ jurisdiction as no final order has yet been passed in Civil Revision No.3 of 2010. Further, it was his submission that the impugned orders suffer from no illegality and the same is just and proper in the best interest of the parties the Writ Petition should be dismissed with cost. 6.After hearing the contentions of the learned counsel for the respective parties and perusing the materials placed before this Court, it is seen that the ‘A’ and ‘B’ schedule properties are adjacent to each other and over the ‘A’ schedule property a school is functioning. In 1927 Settlement Record of Right ‘B’ schedule property was recorded as a ‘Rasta’ with a noting in the remarks column that the said road is used for ingress and egress by the public. According to the petitioner the nature of the ‘B’ schedule property from the ‘Rasta’ has been changed to ‘Patita’ and the same has been leased out to Rotary Club, Puri, the present petitioner. According to the petitioner the nature of the ‘B’ schedule property from the ‘Rasta’ has been changed to ‘Patita’ and the same has been leased out to Rotary Club, Puri, the present petitioner. Admittedly, the said sanction of lease of the ‘B’ Suit schedule property by the Government in favour of Rotary Club, Puri was challenged by two persons, namely Satchidananda Misra and Smt. Indumati Sahoo in writ Petition before this Court vide O.J.C. No.894 of 2001 and the said writ petition was disposed of with an observation that disputed facts cannot be conveniently determined in a writ proceeding and the dispute relating to the right of user as road linked to the easementary right can be decided in a civil proceeding. 7.The main thrust of the argument of Mr. Mukherjee, learned counsel is that since the suit in question is for injunction simplicitor without any prayer for declaration of right, title or interest over the ‘B’ schedule property the suit is bad in law and this important aspect has not been dealt with by the Court below including the 1st Appellate Court and therefore the impugned order at Annexure-4 and Annexure-3 cannot be sustained in the eye of law. 8.The undisputed fact is that the present petitioner as defendant in the Court below had filed an application for rejection of the plaint under Order 7, Rule 11 of the C.P.C. and when that was rejected, Civil Revision No.3 of 2010 has been filed before the learned District Judge, Puri which is said to be pending. At his stage, I refrain from expressing any opinion on the merits of the suit and its maintainability and arrive at a categorical finding one way or other, as that may influence the minds of the Courts below. 9.It is the settled law that while considering the prayer under Order 39, Rules 1 and 2 of the C.P.C. the Court is required to consider three basic principles, namely prima faice case, balance of convenience and inconvenience and irreparable loss and injury. While granting injunction in addition to the aforementioned three basic principles, the Court also take into consideration the conduct of the parties. Grant or refusal of injunction always has serious consequences depending upon the nature thereof and while dealing with such matters the Court must make all endeavour to protect the interest of the parties. While granting injunction in addition to the aforementioned three basic principles, the Court also take into consideration the conduct of the parties. Grant or refusal of injunction always has serious consequences depending upon the nature thereof and while dealing with such matters the Court must make all endeavour to protect the interest of the parties. In the instant case, the Courts below after considering the materials on record were inclined to direct maintenance of status quo in respect of the nature and character of the suit property as prima facie they were satisfied that the present opposite party as plaintiff-petitioner in C.S. No.71 of 2008 and in Interim Application No.48 of 2008 had made out an arguable case and materials are there prima facie to show that ‘B’ Suit Schedule property was recorded as road in the finally published settlement record of right in the year, 1927. When a school is running over the ‘A’ schedule property and the said ‘A’ schedule property abuts the alleged road i.e. ‘B’ schedule property over which the opposite party-plaintiff and others claim right of way in other words they exercise their easementary right those disputed matters are to be decided in the main suit after the parties lead evidence. In view of the claims of the parties over the ‘B’ Suit Schedule property and when there is scramble over the same, in my humble view, at this stage, it is not desirable to go into all the details and render a specific finding which would undoubtedly affect the claim of both parties in the main suit. I am in complete agreement with the conclusion arrived at by the learned Courts below. 10.Thus, after giving my anxious consideration to the submissions made by the learned counsel for the parties and having regard to the facts and circumstances of this case, I consider it most appropriate in the interest of justice that there is a need to preserve status quo with respect to the subject matter of dispute in order to enabling the parties which eventually succeeds in the litigation, to enjoy the fruits of the success. 11.In the aforesaid premises, the impugned orders at Annexures-4 and 3 calls for no interference by this Court. 11.In the aforesaid premises, the impugned orders at Annexures-4 and 3 calls for no interference by this Court. Considering the peculiar nature of the dispute the learned District Judge, Puri is directed to dispose of Civil Revision No.3 of 2010 within a month on production of the certified copy of this order before him. Besides that the parties are also directed that they shall make all endeavour for an early decision of the suit and shall not take adjournment unless absolutely necessary and if pleadings are complete in all respect, the learned Civil Judge (Jr.Divn.), Puri is directed to dispose of the suit within a period of six months from the date of receipt of the copy of this order, if there is no legal impediment for such disposal. With the aforesaid observations, the writ petition stands disposed of, but in the circumstances without any cost. Petition disposed of.