Research › Search › Judgment

Orissa High Court · body

2014 DIGILAW 727 (ORI)

Sunil Kumar Agarwal v. Puskardutt Agarwal

2014-11-07

D.DASH

body2014
ORDER : D. Dash, J. 1. Heard. The Petitioner in this writ application challenges the Order Dated 06.09.2008 passed by the Learned Additional Civil Judge (Senior Division), Balasore in I.A. No. 657 of 2004 arising out of C.S. No. 558 of 2003 in the matter of a petition under Order 1, Rule10 CPC filed by the Opp. Party No. 1 to implead him as an Opp. Party in the proceeding under Order 39 Rule 1 & 2 read with Section 151 CPC. 2. The Petitioner with his three brothers & mother filed C.S. No. 558 of 003 against sons, grandson & widow of one Binjharaj Agarwal. In the suit prayer is to declare their right of laying latrine & water pipe line on 'A' schedule land & getting inflow of the light & air through door & window facing 'A' schedule land & to restrain the Defendants from removing water pipe line & latrine pipe line lying on 'A' schedule land; from demolishing the projection of the building standing on Lot No. 1 of 'B' schedule & raising any further construction. During the suit, an application under Order-39, Rule 1 & 2 read with Section 151 CPC was filed by the present Petitioner being the Defendant No. 3 for grant of temporary injunction restraining Plaintiffs from entering upon the schedule land & changing its nature & character both on the ground & also in the a real space. In the said petition for temporary injunction, the present Petitioner arrayed the Plaintiffs as Opp. Parties. However, the present Opp. Party No. 1 who is the Defendant No. 4 in the said suit made an application for being implead as a party to the said proceeding. The petition having been allowed, the same is challenged here. 3. Learned Counsel for the Petitioner submits that when the Petitioner had no grievance against this Opp. Party No. 1, there was no reason for the Trial Court to allow the Petitioner in imp leading the Opp. Party No. 1 as a party to the said proceeding for temporary injunction. So, he submits that the order is vulnerable. 4. None appears on behalf of the Opp. Parties. 5. Perusal of the plaint reveals that the declarations as stated in the foregoing Para have been prayed for by these Opp. Party Nos. Party No. 1 as a party to the said proceeding for temporary injunction. So, he submits that the order is vulnerable. 4. None appears on behalf of the Opp. Parties. 5. Perusal of the plaint reveals that the declarations as stated in the foregoing Para have been prayed for by these Opp. Party Nos. 1 to 4 against this Petitioner, his other brothers & mother & the cause of action in the suit is stated to have arisen on account of attempt by all these Defendants in infringing their rights & also threat given by them to remove the latrine & water pipe line etc. Also injunction is prayed for against all of them. Next when the petition for grant of temporary injunction is perused instead of indicating in specific term that the present Opp. Party No. 1 is not joining with other Opp. Parties in giving out threat etc he has been omitted from being arrayed as an Opp. Party. 6. This Opp. Party No. 1 in his petition has asserted that he & his younger brother (Defendant No. 1) are in possession of the property & specifically he is in possession over half portion. In other wards an apprehension has been indirectly raised that any order of temporary injunction is so passed may cause hurdle in his possession & enjoyment of that portion of the property & that order of injunction may cause embarrassment to him as it may also be sought to be pressed into service against him. 7. Learned Counsel for the Petitioner submits that the provision of Order 1 rule 10 CPC has no applicability to a proceeding under Order 39 rule 1 & 2 CPC where the Petitioner claims temporary injunction against some of the parties, & the other parties cannot claim to be impleaded therein as its clear that temporary injunction if granted would not bind persons other than those against whom it is issued. Thus he submits that the order has been passed without application of mind & examination of all these aspects assigning proper reason. Therefore, he submits that the said order is vulnerable. 8. In view of above submission, when the order is perused, it is seen that the Court below just taking a view that the order of injunction if passed may attract the liability to the Opp. Therefore, he submits that the said order is vulnerable. 8. In view of above submission, when the order is perused, it is seen that the Court below just taking a view that the order of injunction if passed may attract the liability to the Opp. Party No. 1 for violation of the same which is not the correct position, has allowed the petition. The Court below has neither touched the aspect as to whether a proceeding under Order 39 rule 1 & 2 CPC against whom no prayer for temporary injunction is sought for can seek to be impleaded as a party therein nor has a considered the applicability of said provision to such proceeding. Thus the order is found to be vulnerable. 9. Therefore, the Order Dated 06.09.2008 passed in I.A. No. 57 of 2004 arising out of C.S. No. 558 of 2003 on the file of Civil Judge (Senior Division), Balasore is quashed & the matter is remitted back for disposal of the said petition afresh in accordance with law & touching all those aspects discussed above. The Writ Petition is accordingly disposed of.