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2020 DIGILAW 131 (ORI)

Naba Kumar Shaw v. Sisir Kumar Pal

2020-06-12

KRUSHNA RAM MOHAPATRA

body2020
ORDER : Krushna Ram Mohapatra, J. 1. Due to outbreak of COVID-19, this matter is taken up through Video Conferencing. Heard Mr. M.R. Baug, learned counsel for the petitioner. 2. The petitioner in this CMP assails the order dated 02.06.2020 (Annexure-4) passed by learned District Judge, Cuttack in I.A. No. 2 of 2020 arising out of RFA No. 130 of 2017 whereby learned District Judge rejected an application filed by the petitioner under Order 39 Rule 3 C.P.C. and posted the matter to 17.06.2020 for appearance of the opposite party. 3. Mr. Baug, learned counsel for the petitioner submits that Civil Suit No. 324 of 2016 was decreed in exercise of power under Order 12, Rule 6 C.P.C. by learned Civil Judge (Senior Division), 1st Court, Cuttack allotting 1/2 share each to the petitioner as well as the opposite party, who were parties to the said suit vide judgment dated 11.04.2017. It is submitted by Mr. Baug, learned counsel for the petitioner that while passing the decree, learned Civil Judge did not take into consideration the fact that the defendant opposite party is in possession of the entire suit land and made an observation in the judgment that possession of the parties should be respected. The opposite party taking advantage of the same contemplated construction of house over the entire suit land. Thus, the petitioner was constrained to file appeal, i.e. RFA No. 2 of 2017. Since the opposite party started staking of the materials for construction of house over the entire suit land, the petitioner filed I.A. No. 2 of 2020 under Order 39 Rules 1 and 2 C.P.C. along with a petition under Order 39, Rule 3 C.P.C. to pass an ex-parte ad interim order of injunction by dispensing with notice under Rule 3 C.P.C. However, learned District Judge without considering the same, has passed the impugned order and posted the matter to 17.06.2020 for appearance of the opposite party. It is his submission that if an ad interim order of injunction is not passed, then the petitioner will suffer irreparable injury as the opposite party will make construction over the entire suit land. 4. Taking into consideration the submission of learned counsel for the petitioner, this Court is of the considered opinion that the nature and character of the suit property should not be changed during pendency of the appeal. 4. Taking into consideration the submission of learned counsel for the petitioner, this Court is of the considered opinion that the nature and character of the suit property should not be changed during pendency of the appeal. As such, this Court is inclined to pass an ad interim order by directing the parties to maintain status quo with regard to construction over the suit land. Accordingly, It is directed that the parties shall maintain status quo as on today with regard to possession over the suit land till disposal of I.A. No. 2 of 2020. 5. Since this order is passed without issuing notice to the opposite party, he is at liberty to move this Court for variation of this order, if he feels aggrieved. Authenticated copy of this order downloaded from the website of this Court shall be treated at per with certified copy in the manner prescribed in this Court's Notice No. 4587 dated 25.03.2020.