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2015 DIGILAW 607 (ORI)

Prafulla Kumar Swain v. Kalandi Kandi

2015-11-02

BISWANATH RATH

body2015
JUDGMENT : Biswanath Rath, J. 1. This writ petition has been filed assailing the order dated 29.11.2008 passed by the Civil Judge (Junior Division) Nimapara in C.S. No. 96 of 2006. 2. Short background of the case is whether the suit for permanent injunction is to abate or stayed during pendency of the proceeding under the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter referred to as 'the OCH & PFL Act, 1972'). Pending Civil Suit for permanent injunction at the instance of the petitioner, a proceeding was initiated under the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972. It is at this stage, the defendants filed an application under Section 51 of the OCH & PFL Act, 1972 for stay or to dismiss or to abate the suit on the grounds stated therein. In filing the application, the defendants contended that in view of clear bar under Section 4(4) of the Act, 1972, read with provision contained in Section51 of the Act, 1972 adjudication of such nature of suit should abate or stayed in view of the pendency of the proceeding under the Act, 1972. 3. Plaintiff-petitioner filed objection inter alia contending therein that the suit being for injunction simplicitor, the provision of Section 4(4) of the Act nor the provision contained in Section 51 of the Act, 1972 does not attract and therefore the application under Section 51of the Act, 1972 is not maintainable. 4. Considering the rival submission of the parties, the Civil Judge (Junior Division), Nimapara by an order dated 29.11.2008 while allowing the application at the instance of the defendant passed the following:- XXX XXX XXX "Heard. One information submitted to the Court on behalf of defendants which shows that it is issued by the Asst. Consolidation officer, Gop stating that the notification U/s. 41 of the Act has not been published in mouza-Astaranga, P.S. Kakatpur, Thana No. 191. One ROR is also filed which relates to the same mouza of Thana No. 191 and the was ROR was published U/s. 29 of OCH & PFL Act. The consolidation authorities have the jurisdiction to decide right, title, interest of the parties and this suit is file for permanent injunction which depends on the decision on right, title interest over the suit land. Thus, the petition is allowed. The consolidation authorities have the jurisdiction to decide right, title, interest of the parties and this suit is file for permanent injunction which depends on the decision on right, title interest over the suit land. Thus, the petition is allowed. The suit is stayed till publication of the notification U/s. 41 of OCH & PFL Act. Put up on 27.02.2009 awaiting notification by the consolidation authorities. The earlier order dtd. 27.06.2008 is recalled." 5. In filing the present writ application, the parties have repeated their respective submissions already laid down by them before the authority below and in view of the commonness of the submissions, this Court feels it appropriate not to repeat this Act to avoid unnecessary repetition of the facts and grounds made therein. 6. Section 4(4) of the Act, 1972 reads as follows:-- "Every suit and proceedings for declaration of any right or interest in any land situate within the consolidation area in regard to which proceedings could be or ought to be started under this Act, which is pending before any Civil Court, whether of the first instance or appeal reference or revision shall, on an order being passed in that behalf by the court before which such suit or proceeding is pending stand abate." 7. Section 51 of the Act, 1972 reads as follows:- "51. Bar of jurisdiction of Civil Courts-Notwithstanding anything contained in any other law for the time being a force, but subject to the provisions contained in Clause (3) of Section 4 and Sub-section (1) of Section 7- (1) All questions relating to right, title, interest and liability in land lying in the consolidation area, except those coming within the jurisdiction of Revenue Courts or authorities under any local law for the time being in force, shall be decided under the provisions of this Act by the appropriate authority during the consolidation operations; and (2) No Civil Court shall entertain any suit or proceedings in respect of any matter which an officer or authority empowered under this Act is competent to decide." 8. Reading of the above provisions clearly makes it clear that the same is related to a situation of pendency of the suit involving the questions relating to right, title and interest as well. Reading of the above provisions clearly makes it clear that the same is related to a situation of pendency of the suit involving the questions relating to right, title and interest as well. The contingency of abatement of a suit or bar for initiation of a proceeding before the Civil Court comes under the special contingency and provided there is satisfaction to the provision under Section 4(4) or Section 51 of the Act, 1972. There is no dispute at the Bar that the Suit pending, is a suit for injunction simplicitor in the court below and does not involve the question regarding right, title and interest of the parties concerned and dispute pending before the Consolidation Authority at this stage in revision. The question as to whether a suit concerning sole prayer for injunction shall be stayed or abated in view of the provisions, referred to hereinabove, have been answered again and again by this Court and in a decision of the Full Bench of this Court as reported in AIR 1988 Orissa (166), 65 (1988) CLT 440 this Court in a Full Bench is of categoric opinion that while considering such questions, two essential ingredients are to be found that the disputed properties included in the consolidation scheme and the relief sought for in the suit can be granted by the authorities under the Act. If any of these conditions is not satisfied in a case, then the suit will not abate under Section 4(4) or under Section 51 of the Act. 9. This Court in deciding a matter of similar nature in the case between Raghunath Sahu and another vrs. Sarat Nayak and others as reported in 1987 (1) OLR 144 relying upon a decision in between Rahas Bewa vrs. Kanduri reported in 54 (1982) CLT 143 in paragraph-6 while holding that simplicitor suit for injunction shall not abate following provision of Section of 4(4) of the Act, 1972 in para observed as follows:- "XXX XXX XXX The trial Court by the impugned order overruled the objection by the plaintiffs-petitioners and held that the suit comes within the purview of Sec. 4(4) of the Consolidation Act and therefore, it abates. The main basis for the view taken by the Court appears to be that the suit is not one for permanent injunction simplicitor: since the relief for declaration of title and recovery of possession are also sought for in the suit. This view is clearly erroneous. No doubt the Division Bench of this Court in the case of (Rahas Bewa v. Kanduri Charan Sutar and others) 54 (1982) CLT 143, held that the suit for permanent injunction simpliciter would not abate, but that does not mean that whenever the reliefs for declaration of title and recovery of possession are sought in addition to the relief for permanent injunction, the suit ceases to be one for injunction. All the averments in the plaint are to be taken into consideration while determining the question whether the suit can be said to be one for injunction. It is now well-settled that merely because the question of title would be gone into in the suit, it would not be out of the jurisdiction of the common law forum, i.e., Civil Court. There is also no dispute over the legal position that the authorities under the Consolidation Act are not competent to grant relief for injunction and therefore a suit for permanent injunction could continue in the Civil Court. Unless on consideration of the pleadings in the suit it is held that the relief of injunction is wholly irrelevant or superfluous or that it has been included only with a view to avoid abatement under Sec.4(4) of the Consolidation Act, it cannot be said that the suit abates despite the relief of permanent injunction being sought therein." XXX XXX XXX 10. In view of the above Full Bench decision as well as the decisions referred to herein above, it is now to be decided whether the impugned order can be legally sustained or not? Considering the facts involved in the present dispute, this Court finds that the suit at the instance of the petitioner is for injunction simplicitor and there is no involvement of adjudication of the question as to right, title and interest of the parties and the suit can be decided without even delving into the question of right, title and interest, which is already a subject matter of the consolidation proceeding. Further looking to the prayer made in the plaint, this Court is of the opinion that the prayer for injunction does not come within the domain of the Consolidation Authority and the Civil Court has the only right to deal with such matters. 11. Per contra, the learned counsel appearing for the opposite party brought to my notice a decision reported in 105 (208) CLT 501. I have gone through the decision and the facts involved in the reported case does not suit to the facts involved in the case in hand and the decision is not applicable to the present case. 12. Under the circumstances, this Court finds the impugned order is bad in law, the same is accordingly set aside and consequently direct the Civil Court to dispose of the suit on its own merit. 13. Writ petition stands allowed but however, there is no order as to cost.