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2013 DIGILAW 478 (ORI)

Gopal alias Sankarsan Satpathy v. Debendra Nayak

2013-11-27

S.PANDA

body2013
ORDER 27.11.2013 - Heard learned counsel for the petitioners and learned counsel for the opposite parties. Petitioners are the plaintiffs in the Court below. In this writ petition, they have challenged the order dated 30.9.2013 passed by learned District Judge, Balasore in F.A.O. No. 78 of 2012 by granting leave to appeal filed by the opposite parties who are appellants therein and posting the case to 31.10.2013 for hearing of the application filed under Section 5 of the Limitation Act. Learned counsel for the petitioners submitted that the opposite party Nos. 1 to 5 filed an application under Order 1, Rule 10 of the C.P.C. before the learned Civil Judge (Sr. Division), Balasore to implead them as party in the suit. The petitioners filed objection to the said application and Court below allowed the application by its order dated 10.4.2012. Prior to that Court below, on an application filed by the petitioners under Order 39, Rule 3 of the C.P.C., directed the parties to maintain status quo on 18.5.2011. As the order of status quo was passed prior to impletion of opposite party Nos. 1 to 5 as defendants in the suit, instead of filing an application before the trial Court, the opposite party Nos. 1 to 5 filed leave to appeal before the learned District Judge, Balasore along with appeal memo and an application under Section 5 of the Limitation Act. The learned District Judge, Balasore without application of mind allowed the application for leave to appeal and kept open the question on merit of the appeal to be heard along with Section 5 of the Limitation Act, which is liable to be quashed. Learned counsel for opposite party Nos. 1 to 5 vehemently supported the impugned order and submitted that as the order of status quo was passed behind their back, they have no other option than to file leave to appeal before the appellate Court challenging the said order. Considering the rival submission of the parties and the fact that the present opposite party Nos. 1 to 5 were already implead as defendants in the suit and if they have any allegation regarding violation of order of status quo, in such situation they should file an application under Order 39, Rule 4 of the C.P.C. before the Court below. Considering the rival submission of the parties and the fact that the present opposite party Nos. 1 to 5 were already implead as defendants in the suit and if they have any allegation regarding violation of order of status quo, in such situation they should file an application under Order 39, Rule 4 of the C.P.C. before the Court below. Order 39, Rule 4 of the C.P.C. stipulates that any order for an injunction may be discharged, or varies, or set aside by the Court, on application made thereto by any party dissatisfied with such order. The proviso to the said rule also stipulates that if an application for temporary injunction or in any affidavit supporting such application a party has knowingly made a false or misleading statement in relation to a material particular and the injunction was granted without giving notice to the opposite party, the Court shall vacate the injunction unless, for reasons to be recorded, it considers that it is not necessary so to do in the interests of justice. Admittedly, the opposite party Nos. 1 to 5 were already impleaded as party to the suit and the order of status quo was passed prior to that on 18.5.2011. Therefore, in case they aggrieved by the said order they should have filed an application before the same Court to set aside varies the status quo order passed instead of filing an application for leave to appeal. Hence, this Court quashes the impugned order dated 30.9.2013 passed by learned District Judge, Balasore in F.A.O. No. 78 of 2012, as the impugned order is quashed, the F.A.O., and the misc. cases-pending in the said Court are nonest in the eye of law. However, liberty is given to opposite party Nos. 1 to 5 to file an application under Order 39, Rule 4 of the C.P.C. within a period of two weeks from today before the trial Court, in such event the trial Court shall consider the same in accordance with law after giving an opportunity of hearing to the parties. Accordingly, the writ petition as well as the misc. case is disposed of. Urgent certified copy of the order be granted on proper application. Petition and misc. case disposed of.