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2017 DIGILAW 1280 (ORI)

Annapurna Panda v. Chhabirani Dash

2017-11-09

BISWANATH RATH

body2017
JUDGMENT : BISWANATH RATH, J. 1. For the challenge of two orders in both the Civil Miscellaneous Petitions but for the involvement of common set of fact, this Court decides to have a common judgment in disposing both the Civil Miscellaneous Petitions. 2. Short background involved in the case is that during pendency of a suit in between the parties, plaintiff filed an application under Order 39, Rules 1 and 2 of the Code of Civil Procedure registered as I.A.No.361 of 2009. The application appears to be involving allegation against the opposite parties therein, the petitioners herein, involving attempt of the present petitioners for construction by gathering materials over the suit plot, for changing the shape of the house over the suit plot, taking steps for removing the different types of trees standing over the suit plot, making attempt to sell the trees after being cut and also taking steps for selling the disputed property and handing over possession of the disputed property to outsiders consequently praying therein for passing an order of injunction restraining the present petitioners from undertaking any construction, changing the nature of the house, preventing from cutting trees and selling them and also while preventing the petitioners from alienating the suit property and also praying for maintaining status quo in respect of the disputed property. Considering the rival contentions of the parties, the trial court by order dated 5.9.2009 passed the following order: “The I.A. be and the same is allowed in part on contest but in the peculiar circumstances without cost. In view of the order both the parties are directed to maintain status-quo over the suit schedule property for not alienating the same during pendency of the suit.” As per the submissions of both the parties, plaintiff preferred no appeal assailing the order quoted hereinabove. It is on the other hand, the present petitioners-defendants filed appeal before the District Court. It is alleged that pending consideration of the appeal involving the above order, the plaintiff on the premises of change in the circumstance filed another Interim Application registered as I.A.No.1 of 2012 once again seeking an order of injunction from the trial court restraining the defendants-petitioners herein from undertaking any construction and also restraining the defendants from cutting away any standing trees thereon and praying for passing an order of status quo. This Interim Application being seriously objected by the defendants including a ground taken therein on maintainability of such application in existence of earlier disposal of an application under Order 39, Rules 1 and 2 of the Code of Civil Procedure. This subsequent I.A.No.1 of 2012 was disposed of on contest of the parties vide order dated 17.1.2012 quoted herein below: “The Misc. Case be and the same is allowed in part against the O.Ps., but, without any cost. Both parties are directed to maintain status-quo over the suit plots by not taking any construction and removing any trees from the same till disposal of the suit.” 3. Challenging the above order, the defendants also preferred another first appeal. Both the first appeals are registered as F.A.O.No. 62 of 2009 and F.A.O. No. 9 of 2012 respectively. Hearing both the appeals together, the lower appellate court by a common judgment dated 21.1.2017 rejected the appeals thereby confirming the orders involving I.A.No.361 of 2009 and I.A.No.1 of 2012 involving C.S.No,747/1046 of 2009/2010-I. Civil Miscellaneous No.168 of 2017 involves challenge to the order passed in I.A.No.361 of 2009 and the consequential order passed in F.A.O.No.62 of 2009 whereas Civil Miscellaneous Petition 169 of 2017 involves the order passed in I.A.No.1of 2012 and the consequential order passed in F.A.O.No.9 of 2012. 4. Assailing the impugned orders, Sri Mohanty, learned counsel for the petitioners referring to the pleadings involving in both the I.As. referred to hereinabove and referring to the provisions contained in Order 39 of the Code of Civil Procedure submitted that for the facts involved, particularly, the allegation on all the four issues involving therein, changing nature and character, cutting trees and selling the same also on alienation and for the existence of specific prayer therein involving an outcome by way of disposal of I.A.No.361 of 2009 only directing the parties to maintain status quo over the suit schedule property in respect of alienation of the disputed property during pendency of the suit, the second Interim Application having similar allegations excepting a mere indication of some developments taken place in between for the self same relief is not maintainable. Taking this court to the pleadings available in both the Interim Applications and the discussions in the disposal of the Interim Applications, learned counsel for the petitioners submitted that under the circumstances, no successive application under Order 39, Rules 1 and 2 was maintainable. Taking this court to the pleadings available in both the Interim Applications and the discussions in the disposal of the Interim Applications, learned counsel for the petitioners submitted that under the circumstances, no successive application under Order 39, Rules 1 and 2 was maintainable. 5. Sri Nayak, learned counsel for the plaintiff-opposite party on the other hand objecting the submission of learned counsel for the petitioners taking this Court to the pleadings available, while admitting that there is no appeal at the instance of the plaintiffs involving the disposal of the first Interim Application, objecting the submissions made by Sri Mohanty, learned counsel for the petitioners taking this Court to the pleadings available in the subsequent I.A.No.1 of 2012 contended that for the disclosures therein regarding some developments taking place in between justified the filing of the subsequent Interim Application under Order 39, Rules 1 and 2 of the Code of Civil Procedure and, thus, requested this Court for not interfering in the impugned order and thereby dismissing both the Civil Miscellaneous Petitions. 5. Considering the rival contentions of the parties, this Court finds there is no dispute that during pendency of the suit, first I.A.No.361 of 2009 was filed involving all the four allegations made against the petitioners. Perusal of the application in I.A.No.361 of 2009 makes it clear that the plaintiff not only made all the allegations indicated hereinabove but has also prayed for all possible reliefs including the relief made in the subsequent Interim Application. Facts involving both the Interim applications are more or less similar except mentioning of some events taking place and an attempt for alienation of the property that too taken place in the year 2011. Considering the pleadings available in both the Interim applications and the prayer made therein, this Court finds the pleadings involving both the applications are more or less similar. Looking to the order passed in I.A.No.361 of 2009, this Court finds the trial court after considering the respective submissions and taking into consideration the materials available therein, allowed the injunction petition so far it relates to maintenance of status quo in respect of the disputed property and directing the parties not to alienate the same during pendency of the suit, which ultimately indicates that there has been rejection of the other prayers involved therein and admittedly the plaintiff has not filed any appeal challenging the same. 6. 6. Under the circumstances, taking into consideration the provision contained in Order 39, Rule 4 of the Code of Civil Procedure permitting a party to apply for variation of injunction order in the changed circumstance, this Court finds the successive application under Order 39, Rules 1 and 2 of the Code of Civil Procedure is not maintainable. This Court thus while interfering in the order passed in I.A.No.1 of 2012 and the resultant order passed in F.A.O.No.9 of 2012 observes that the same are not sustainable in the eye of law and sets aside both the orders. However taking into consideration the pleadings, allegations and the consideration of both the courts involving the direction contained in I.A.No.361 of 2009 and the consequential order passed in F.A.O.No.61 of 2009, this Court is satisfied with the observation as well as the direction contained therein and, therefore, is not inclined to interfere in the same. 7. Consequently, while dismissing the Civil Miscellaneous Petition No.168 of 2017 this Court allows the Civil Miscellaneous petition No.169 of 2017. Both the matters disposed of with the above common order but however there is no order as to cost.