Padma Manjari Devi And Others vs Pratibha Manjari Devi And Others
2023 Latest Caselaw 3544 Ori

                   IN THE HIGH COURT OF ORISSA AT CUTTACK
                                  CMP NO. 417 OF 2023
                 Padma Manjari Devi and others           ....      Petitioners
                                         Mr. Prafulla Kumar Rath, Advocate
                                         -versus-
                 Pratibha Manjari Devi and others        .... Opp. Parties
                                         Mr. Susanta Kumar Dash, Advocate
                                                       (For Opp. Party No.1)



                       CORAM:
                       JUSTICE K.R. MOHAPATRA
                                       ORDER

Order No.                             17.04.2023

   1.       1.       This matter is taken up through hybrid mode.

2. Order dated 5th April, 2023 (Annexure-1) passed by learned Senior Civil Judge, Baripada in I.A. No.57 of 2023 (arising out of C.S. No.291 of 2023) is under challenge in this CMP, whereby learned trial Court holding that since parties have already entered appearance, no ex parte injunction could be passed directed the parties not to create any sort of encumbrances in respect of the suit land and not to alienate the suit land to any third person and not to interfere with the peaceful possession of the Plaintiff-Opposite Party No.1 in respect of the suit land till disposal of the interim application.

3. Mr. Rath, learned counsel for the Petitioners submits that C.S. No.292 of 2023 has been filed by the Plaintiff-Opposite Party No.1 for declaration of right, title, interest and possession over the suit land together with consequential and ancillary relief.

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Along with the plaint, I.A. No.57 of 2023 has been filed under Order XXXIX Rules 1 and 2 C.P.C. An application under Order XXXIX Rule 3 C.P.C. was also moved for grant of ex parte ad- interim order of injunction dispensing with service of notice on the Defendants-Opposite Parties. On the date of consideration of the petition under Order XXXIX Rule 3 C.P.C., the Defendants appeared. Hence, learned trial Court held that since both the parties are already on record, question of passing an ex parte ad- interim order of injunction does not arise. But, proceeding further, it passed an order impliedly allowing the prayer made in the petition under Order XXXIX Rules 1 and 2 C.P.C.. It is his submission that when an application under Order XXXIX Rule 3 C.P.C. has not been entertained, the Court is denuded of the power to pass an order of injunction, more particularly when an application for injunction is subjudice. In support of his case, Mr. Rath, learned counsel relied upon the judgment dated 18th January, 2016 passed by this Court in CMP No.418 of 2015, wherein it is held as under:

"11. In view of the discussion made herein above, the observations made and following the ratio involved in AIR 1962 SC 527 as well as in 1992 (I) CCC 483 this Court while finding the Civil Miscellaneous Petition maintainable as against the impugned order, further finds the grant of interim order of status quo even after rejecting the application under Order 39, Rule 3 of the Code of Civil Procedure is per se illegal and therefore while interfering the impugned order, this Court sets aside the impugned order. Further since the application under Order 39, Rules 1 and 2 of the Code of Civil Procedure is pending consideration of the trial court and since all the parties are contesting in the court, this Court directs the trial court to consider the application under Order 39, Rules 1 and 2 of the Code

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of Civil Procedure at the instance of the plaintiff by giving opportunity of hearing to the respective parties and take a decision thereon within a period of three weeks from today."

He, therefore, submits that learned trial Court should not have passed an order prejudicial the Defendant Nos.1 to 3-Petitioners by impliedly allowing the prayer made in the petition under Order XXXIX Rules 1 and 2 C.P.C., more particularly when the matter is posted to 20th April, 2023 for filing of the objection in the said I.A. He, therefore, submits that the impugned order is not sustainable and is liable to be set aside.

4. Mr. Dash, learned counsel submits that he has instruction to appear on behalf of Opposite Party No.1 and files Vakalatnama in Court, which is taken on record. It is his submission that learned trial Court has committed no error in passing the impugned order. When both the parties have already entered appearance, the question of entertaining an application under Order XXXIX Rule 3 C.P.C. did not arise at all. Hence, learned trial Court has rightly held that no ex parte order of injunction could be passed. Further, it does not amount to rejection of an application under Order XXXIX Rule 3 C.P.C. However, learned trial Court while entertaining an application under Order XXXIX Rules 1 and 2 C.P.C. cannot close its eyes to the facts and circumstances of the case. In order to protect the property, an interim order of injunction may be passed by the Court keeping the petition for injunction pending for adjudication. As it would take some time for adjudication of the petition under Order XXXIX Rules 1 and 2 C.P.C., the Court has

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ample power to pass an interim order to protect the lis till disposal of the I.A. filed under Order XXXIX Rules 1 and 2 C.P.C. He, therefore, submits that the CMP being devoid of any merit should be dismissed.

5. Considering the rival contentions of the parties and on perusal of the record, it appears that on the date of entertaining the petition under Order XXXIX Rule 3 C.P.C., the present Petitioners along with other Defendants appeared. Thus, the question of entertaining an application under Order XXXIX Rules 1 and 2 C.P.C. did not arise at all. However, the Court passed an order in the nature of ad-interim order of injunction, as stated above. It also appears that the matter is posted to 20th April, 2023 for filing of the objection by the present Petitioners along with other Defendants.

6. In course of hearing, Mr. Rath, learned counsel for the Petitioners submits that no third party interest shall be created by the Petitioners in respect of the suit property till disposal of I.A. No.57 of 2023. He also undertakes to file objection by 20th April, 2023.

7. In view of the submission made by Mr. Rath, learned counsel for the Petitioners, this Court is of the considered opinion that no fruitful purpose will be served by delving into the merit of the order impugned herein.

8. Accordingly, it is directed that the Petitioners along with other Defendants shall file their objection on or before 20th April, 2023 and learned trial Court shall make all endeavours to see that I.A. No. 57 of 2023 filed under Order XXXIX Rules 1 and 2

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C.P.C. is disposed of by 30th April, 2023 giving opportunity of hearing to the parties concerned. Till disposal of I.A. No.57 of 2023, no third party interest in respect of the suit property shall be created by any of the parties to the suit. It is expected that parties shall not make any construction over the suit land till disposal of I.A. No.57 of 2023.

9. The CMP is disposed of with the modification in the impugned order, as stated above.

Urgent certified copy of this order be granted on proper application.

(K.R. Mohapatra) Judge

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