Orissa High Court
Jagannath Mohanty & Anr vs Sankar Patra & Ors on 6 February, 2023
ORISSA HIGH COURT : C U T T A C K
W.P.(C) NO.18169 OF 2010
An application under Articles 226 & 227 of
the Constitution of India.
Jagannath Mohanty & anr. : Petitioners
-Versus-
Sankar Patra & ors. : Opposite Parties
For Petitioners : M/s.S.Mishra, B.K.Mishra
& M.Mishra
For O.Ps. : M/s.T.Sinha, S.Chakravarthy,
B.Das and B.K.Sinha
JUDGMENT
CORAM :
JUSTICE BISWANATH RATH
Date of Hearing & Judgment : 06.02.2023
1. The Writ Petition involves a challenge to the order at Annexure-1.
2. There is no appearance on behalf of the O.Ps. in spite of valid
notice.
3. Background involving the case is during pendency of Title Suit
No.175/93 allowing Misc. Case No.329/93, an application under Order
39 Rule 1 of C.P.C., the Civil Court by order dated 15.4.94 directed both
the Parties to maintain status quo so far as it relates to the suit land
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involved therein till disposal of the suit. It is for violation of this order by
the contesting O.Ps., the present Petitioners filed Misc. Case No.166/2002
under the provision of Order 39 Rule1 & 2(A) of C.P.C. for awarding
suitable punishment against the O.Ps. therein for their deliberate violation
of the status quo order passed in disposal of Misc. Case No.329/93. As
appears, in the first round of litigation on an order being passed claiming
to be ex parte against the O.Ps., proceeding, vide Misc. Appeal
No.42/2004 was undertaken. This Appeal appears to have been disposed
of by the Ad hoc Additional District Judge, Jajpur, vide judgment dated
10.11.2006 setting aside the order passed by the trial court and remitting
the matter to the trial court for re-considering the Application under Order
39 Rule 2(A) of C.P.C. Being aggrieved, W.P.(C) No.3110 of 2007 was
brought before this Court. This Court by order dated 3.4.2007 directed the
trial court for re-hearing of the Application under Order 39 Rule 2(A) of
C.P.C. On the fresh disposal of this case, there appears, there is allowing
of the Application involved and thereby sentencing the O.Ps. to such
Application, the present O.Ps. to undergo civil imprisonment for one
month at the cost of the Petitioners. This order being challenged in an
Appeal registered as FAO No.128/2007, vide Annexure-1. The Appellate
Authority, vide Annexure-1 coming to observe there involved ex parte
disposal and allowing the Appeal remitted the matter for fresh hearing
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however with imposition of cost of Rs.500/- for fresh hearing of the
Order 39 Rule 2(A) Application.
4. Being aggrieved by the appellate order at Annexure-1, learned
counsel for the Petitioners taking this Court to the observations of the trial
court in disposal of Misc. Case No.166/2002, vide Annexure-5
contended, once this Misc. Case was disposed of in participation of both
the Parties, the lower appellate court interfering in such order on the
observation with such order was passed ex parte becomes erroneous and
contrary to the actual position involving disposal of Misc. Case
No.166/2002. In the process, Ms.Mishra, learned counsel for the
Petitioners requested this Court for interfering with the appellate order
and passing appropriate order.
5. This Court has already recorded herein above the non-cooperation
of the O.Ps. in spite of notice and appearance of a set of counsel.
6. Considering the grounds taken herein and as recorded herein above
by the Petitioners herein and on perusal of the manner of disposal of
Misc. Case No.166/2002 at Page-19 of the Brief, this Court finds, the
conclusive observation of the trial court therein appears to be as follows :-
"So as per the direction of the Hon'ble High Court, the present
Misc. Case was taken up for hearing in presence of the learned
Counsel for both the parties. Vide order dated 07.05.04, this
court found that the Ops have violated order of status quo
passed by this court on 15.04.1994 and violating the order, the
Ops dug earth from the suit land and started construction.
Therefore, the crux of the present dispute is that the Ops should
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be punished appropriately as provided under Or.39 Rl. 2(A) of
the C.P.C. for violating the order of this court passed on 15.4.94
in Misc. Case No.329 of 93. Two disciplinary actions have been
provided under Or. 39 Rl. 2(A) of the C.P.C. namely attachment
of property or detention. The two modes of punishment are
alternatives, which can be awarded to the contemnor according
to the discretion of the court. In the instant case, it has been
positively held that the Opposite parties have intentionally
violated the order of this court by digging earth from the suit
land and raised permanent structures. Therefore, in my
considered opinion, it will be just and proper to sentence the
Ops by sending them to Civil imprisonment as provided under
Or. 39 Rl. 2(A) of the C.CP.C. Accordingly, I sentence the
Opposite Parties to undergo civil imprisonment for one month
fat the cost of the petitioners. Put up on 01.01.2008, when the
petitioners to take steps and for further orders."
7. This Court here reading the direction part issued by the trial court
finds, based on the direction of the High Court in disposal of the Writ
Petition bearing W.P.(C) No.3110/2007, the proceeding, vide Misc. Case
No.166/2002 was undertaken afresh and there is clear observation of the
Civil Judge (Jr.Divn.), Jajpur observing hearing of the proceeding
undertaken in presence of the learned counsel for both Parties. It is
keeping in view this clear recording of the trial court also keeping in mind
the grounds raised herein by the learned counsel for the Petitioners and on
perusal of the observations and findings of the lower appellate court that
the proceeding, vide Misc. Case No.166/2002 remains ex parte and
erroneous since the proceeding was closed undertaking hearing exercise
without considering the fact of illness of the Party, it appears, the lower
appellate court proceeded in a footing as if the order in Misc. Case
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No.166/2002 was passed ex parte and in non-involvement of the Party.
There is clear recording that the matter was heard in the involvement of
learned counsel for both Parties. The Party was ill remains immaterial.
Further for their joint contest, one such Party falling ill also remains
immaterial. As the hearing involved counsel for both sides, there appears,
there is no illegality in the discharge of duty by the trial court in disposal
of the proceeding, vide Annexure-5 and the lower appellate court failed
on appreciating the above aspect and arrived at wrong and illegal order.
8. In the circumstance, this Court finds, the lower appellate court
committed error apparent on the face of the Record and misdirected itself
in deciding the Appeal on the footing that the order involved therein was
an ex parte one.
9. In the result, this Court interferes with the appellate order at
Annexure-1 and confirms the order at Annexure-2.
10. The Writ Petition succeeds. No cost.
(Biswanath Rath)
Judge
Orissa High Court, Cuttack.
The 6th January, 2023/M.K.Rout, A.R.-cum-Sr.Secy.
