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2014 DIGILAW 101 (ORI)

Premananda Swain v. Bidyadhar Swain

2014-02-11

B.R.SARANGI

body2014
JUDGMENT : Dr. B.R. SARANGI, J. Challenging the order dated 16.05.2013 passed by the learned Civil Judge (Senior Division), Athagarh in I.A. No. 31 of 2013 arising out of G.S. No. 67 of 2013, rejecting the petition filed by the plaintiff-petitioner under Order 39, Rule 3 of the Code of Civil Procedure (in short, "CPC') vide, the present petition has been filed. 2. The short fact of the case is that the plaintiff-petitioner filed a suit for permanent injunction against the defendant-opposite party claiming right, title and interest over the plot No. 171, area of Ac. 0.10 dec., Khata No. 73, Kisam-Gharabari, Mouza-Karakamal under Athagarh Tahasil. It is stated that the property having been inherited from Bhobani Swain and he being the successor of the same, has been paying rent. After the death of Bhobani, he has construed a house on the said land and has been staying therein. It is the admitted case of the plaintiff-petitioner that the defendant-opposite party is the owner of plot No. 170, where he resides in a thatched house, ,which is situated adjacent to the plot of the plaintiff-petitioner. It is stated by the plaintiff-petitioner that towards east of the plot and adjacent to the plot of the defendant-opposite party, he left a vacant portion for maintenance of his building and also used the same as the path way to his bari. On 26.3.2011 defendant-opposite party objected to the plaintiff for the first time not to come over the suit land while the plaintiff attempted to repair his house by putting a ladder etc. on the suit land. The matter went to the village panchayat and the village panchayat decided in favour of the plaintiff-petitioner and directed the defendant-opposite party not to disturb the plaintiff-petitioner's possession. Since the defendant-opposite party did not obey the direction of the village panchayat and continued with the disturbance in interfering with the possession of the plaintiff in respect of the suit land, the plaintiff-petitioner filed the suit. 3. The case of the defendant-opposite party is that he is the owner in respect of Plot No. 170, Khata No. 12 of Mouza-Karakamal under Athagarh Tahasil, which is an ancestral property and he is in possession of the same peacefully and plot No. 170 is adjacent to the plot No. 171 belonging to the plaintiff. 3. The case of the defendant-opposite party is that he is the owner in respect of Plot No. 170, Khata No. 12 of Mouza-Karakamal under Athagarh Tahasil, which is an ancestral property and he is in possession of the same peacefully and plot No. 170 is adjacent to the plot No. 171 belonging to the plaintiff. Defendant-opposite party is constructing his residential house over plot No. 170, Khata No. 12 which is well within his boundary end as such, there is no manner of encroachment of any part of plot No. 171. In order to cause harassment, the plaintiff-petitioner has filed a suit against him and sought for an ex-parte order of injunction from the Court below. 4. The plaintiff-petitioner along with the plaint filed an application under Order 39, Rules 1 and 2 of CPC before the Civil Judge (Senior Division), Athagarh registered as I.A. No. 30 of 2013 with a prayer to restrain the defendant-opposite party from raising construction over the suit land till disposal of the suit. He also filed a petition under Order 39, Rule 3 of C.P.C. seeking ex-parte order without issuing notice to the defendant-opposite party restraining him from raising construction over the suit land. On consideration of the same, learned Civil Judge (Senior Division), Athagarh vide order dated 16.10.2013 rejected the said petition under Order 39, Rule 3 of C.P.C. against which this writ petition is filed. 5. While entertaining the writ petition, this Court by order dated 24.06.2013 in Misc. Case No. 12726 of 2013 directed the parties to maintain status quo over the suit land till the next date. 6. Mr. Manoj Kumar Mishra, learned Senior Counsel appearing for the plaintiff-petitioner stated that by rejecting the application Order 39, Rule 3 of CPC, learned Court below has committed gross error apparent on the face of record and the same has been passed without application of mind. It is further urged that proviso to Order 39, Rule 3, CPC is an exception to proviso under Order 39, Rules 1 and 2. In case of Rules 1 and 2, the Court is to issue notice to the opposite parties and on their appearance injunction application is to be heard. It is further urged that proviso to Order 39, Rule 3, CPC is an exception to proviso under Order 39, Rules 1 and 2. In case of Rules 1 and 2, the Court is to issue notice to the opposite parties and on their appearance injunction application is to be heard. But in certain cases situation so compels to a party that he/she cannot wait for appearance of the other side and such waiting would cause irreparable loss and the filing of the suit will be meaningless, in such a situation, the party can take recourse to the proviso under Order 39, Rule 3, CPC and the Court may grant ad interim injunction ex-parte subject to compliance of the mandatory requirements of the said Rule 3. In support of his submission, he has relied upon the judgment in Smt. Baisakhi Mahanta v. Himansu Sekhar Dwibedi & two others, 2009 (2) CLR 957, 2009 (Supp. I) OLR 10561. Apart from the same a Misc. Case bearing No. 20367 of 2013 has been filed by the plaintiff-petitioner under Order 39, Rule 2-A of CPC read with Section 151 CPC alleging violation of the order of status quo passed by this Court on 24.06.2013 and seeking for direction to restore possession of the suit land status quo anti with police help. Mr. Mishra further stated that when a party violates the interim order of status quo and raises construction, the Court can punish the violator and may order for demolition of the illegal construction under Order 39, Rule 2A, CPC read with Article 215 of the Constitution of India. In support of his submission he has relied upon the judgments in Delhi Development Authority v. Skipper Construction Co. (P) Ltd. and another (1996) 4 SCC 622 , Anand Prakash Agrawal v. Cantonment Executive Officer, Cantonment Board, Meerut and others (2006) 4 ALJ 547 (DB), Baisnab Pradhan and others v. Guru Charan Pradhan, 2000 (2) OLR 625, M/s. Manthan Broadband Services Pvt. Ltd. v. Executive Officer, Puri Municipality and others, 2012 (1) OLR 17 and Dipti Ranjan Sahoo and another v. Nalini Kumari Sahoo, 2011 (Supp.-I) OLR 793. It is further urged that violation proceeding is a separate proceeding and it will run separately even after disposal of the main case. To substantiate such contention, he has placed reliance on the judgments reported in Prahallad Ch. It is further urged that violation proceeding is a separate proceeding and it will run separately even after disposal of the main case. To substantiate such contention, he has placed reliance on the judgments reported in Prahallad Ch. Panda v. Pradeep Kumar Lenka and others 2006 (1) OLR 457 and Kishore Chandra Jagadev Ray v. Puri Municipality and another 64 (1987) CLT 231. 7. Mr. D.K. Das, learned counsel appearing for the defendant-opposite party vehemently opposes the contentions raised by Mr. Mishra and specifically states that having failed in getting ex-parte order against the defendant-opposite party, the plaintiff-petitioner approached this Court and this Court passed an order of status quo on 24.6.2013 and again by order dated 04.07.2013 this Court further directed the Superintendent of Police (Rural), Cuttack and Inspector-in-Charge of Athagarh Police Station to ensure strict implementation of status quo order passed by this Court. In compliance to the said direction, the IIC, Athagarh Police Station vide letter 2.075 dated 16.08.2013 requested the Tahasildar, Athagarh to depute a Government Amin to demarcate plot No. 170, Khata No. 12 belonging to the defendant-opposite party, basing upon which the Tahasildar, Athagarh initiated demarcation case (P.S. No. 2075). Accordingly notice was issued to both the plaintiff-petitioner and defendant-opposite party directing them to remain present on 07.09.2013 along with relevant documents for demarcation of plot No. 170 under Khata No. 12, which has been duly acknowledged by both the parties. But deliberately the plaintiff-petitioner remained absent on the date fixed i.e. on 7.9.2013. Therefore, the Tahasildar, 'Athagarh, in presence of police personnel of Athagarh Police Station and villagers proceeded for demarcation of plot No. 170 and the Government Amin took up measurement and found that the boundary of Plot No. 170 remains same as per the village map and accordingly he submitted his report to the Tahasildar Athagarh. Once the demarcation of plot No. 170 has been made by the competent authority, the same should have been implemented. Once the demarcation of plot No. 170 has been made by the competent authority, the same should have been implemented. Further in compliance to the direction given by this Court by order dated 03.10.2013, the Superintendent of Police (Rural), Cuttack was directed to appear in person on 8.10.2013, the Government Amin issued a letter to the Tahasildar, Athagarh wherein it has stated that he has submitted his report on 7.9.2013 in demarcation Case No. 2075 dated 16.08.2013 clarifying that the defendant-opposite party is constructing a pucca house over plot No. 170, Khata No. 12 and the construction work is well within his boundary i.e. in his own plot No. 170 and therefore, application was filed to clarify and modify the order allowing the defendant-opposite party to proceed with the construction work over plot No. 170, Khata No. 12 of Mouza-Karakamal under Athagarh Tahasil in the district of Cuttack. 8. Considering the contentions raised by the learned counsel for the parties and on perusing the records as well as the interim order passed by the learned Court below, it is found that the learned Court below has rejected the application under Order 39, Rule 3, CPC for grant of ex-parte order of injunction in the impugned order dated 16.05.2013 and while rejecting the said application, learned Court below has assigned reason that the petitioner filed the petition on the ground that the opposite party is trying to raise construction over the suit land during summer vacation period. Therefore, the learned Court below has not considered it to be urgent to pass an ex-parte interim order and more so, he has assigned reason that in absence of the other side if any order is passed it may amount to violation of the principle of natural justice. Therefore, before passing any judicial order both the parties must be heard. Once such a reason has been assigned in that case it cannot be said that the learned Court below has not applied his mind while passing the impugned order. 9. Order 39, Rule 3 states as under: "3. Therefore, before passing any judicial order both the parties must be heard. Once such a reason has been assigned in that case it cannot be said that the learned Court below has not applied his mind while passing the impugned order. 9. Order 39, Rule 3 states as under: "3. Before granting injunction, Court to direct notice to opposite party - The Court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party: Provided that, where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant – (a) to deliver to the opposite party, or to send to him by registered post, immediately after the order granting the injunction has been made, a copy of the application for injunction together with – (i) a copy of the affidavit filed in support of the application; (ii) a copy of the plaint; and (iii) copies of documents on which the applicant relies, and (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent." 10. The provision itself makes it clear that the Court shall in all cases, except where it appears that the object of granting injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party. But complying the proviso to Rule 3, injunction can be granted without notice but that should be by recording reasons, Therefore, whenever a Court considers it necessary in the fact and circumstances of the particular case to pass an order of injunction without notice to the other side, it must record the reasons for doing so and should take into consideration all relevant facts including as to how the object of granting injunction itself shall be defeated, if an ex-parte order is not passed. But any such ex-parte order should be in force for a particular date before which the plaintiff should be required to serve notice on the defendant. This principle has been settled by the apex Court in Shiv Kumar v. Delhi Municipal Corporation, Delhi (1993) 3 SCC 161 . In view of the provisions contained in Order 39, Rule 3 of CPC issue of notice before granting injunction is mandatory unless exceptional circumstances as stated in the Rule is present. Therefore, while passing the impugned order, the learned Court below did not find any reason as envisaged under proviso to Order 39, Rule 3 of CPC so as to pass ex-parte ad interim order of injunction without giving notice to the defendant-opposite party. Since no case has been made out by the plaintiff-petitioner within the meaning of Order 39, Rule 3 of CPC, the impugned order passed by the learned Court below rejecting the application filed under Order 39, Rule 3, CPC is wholly and fully justified. Therefore, this Court is not inclined to interfere with the impugned order passed by the Court below. 11. So far as the claim made for consideration of separate application under Order 39, Rule 3A, CPC is concerned, it is stated that the plaintiff-petitioner has not come to this Court with clean hands in view of the fact that when the notice was issued for the demarcation the plaintiff-petitioner did not participate in the proceeding and demarcation having been made by the competent authority in presence of the local villagers, police authorities, as well as Revenue authorities and it. is found that the defendant-opposite party is raising construction on his own plot bearing Plot No. 170, Khata No. 12, the contention raised that the defendant-opposite party has violated the status quo order passed by this Court, is absolutely a misconceived one and therefore, the reliance placed by Mr. Mishra, learned Sr. counsel for the plaintiff-petitioner on the decisions referred to supra, has no application in the present context though each case has to be decided on its own facts and circumstances of the case itself. In view of that, the defendant-opposite party has not disputed the proposition of law set by this Court in those decided cases. Mishra, learned Sr. counsel for the plaintiff-petitioner on the decisions referred to supra, has no application in the present context though each case has to be decided on its own facts and circumstances of the case itself. In view of that, the defendant-opposite party has not disputed the proposition of law set by this Court in those decided cases. On the contrary, the allegation of the plaintiff-petitioner that the defendant-opposite party has violated this Court's order, is absolutely misconceived one in view of the fact that when on demarcation it is found that the defendant-opposite party is in possession of his own plot and construction has been raised on the same in that case the question of any encroachment or any violation of any order passed by this Court does not arise. Rather by approaching this Court the plaintiff-petitioner is trying to make out a case for himself for getting injunction order in his favour when such application under Order 39, Rule 1 of CPC is pending before the learned Court below for just and proper adjudication. In that view of the matter this Court is of the view that the defendant-opposite party has not violated the status quo order passed by this Court on 24.06.2013 in Misc. Case No. 12726 of 2013. Hence, the violation application bearing Misc. Case No. 20367 of 2013 is hereby dismissed. 12. As it reveals from impugned order dated 16.05.2013, the learned Court below while rejecting the application under Order 39, Rule 3 CPC issued notice to the defendant-opposite party on the application under Order 39, Rule 1 of CPC fixing 18.05.2013 for appearance of the defendant-opposite party and the said application is still pending for consideration. In that view of the matter, this Court directs both the plaintiff-petitioner as well as the defendant-opposite party to appear before the learned Civil Judge (Senior Division), Athagarh in IA No. 31 of 2013 arising out of C.S. No. 67 of 2013 on 20th of February, 2014 on which date the learned Court below shall fix up a date for hearing of the said I.A. and pass order after giving opportunity of hearing to the parties. 13. In view of the aforesaid observation and direction, the writ petition as well as the Misc. Cases is dismissed. With the disposal of the cases, the interim orders passed by this Court stand vacated. No cost. Ordered accordingly.