Taranisen Kuanr And Another vs Sh. Ramsingh Munda And Others
2023 Latest Caselaw 8155 Ori

Signature Not Verified
Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Designation: Secreatary
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 31-Jul-2023 11:10:38


                                         IN THE HIGH COURT OF ORISSA AT CUTTACK
                                                       CMP No.386 of 2022
                                      Taranisen Kuanr and another                ....       Petitioners
                                                                          Mr. Soumya Mishra, Advocate
                                                            -versus-
                                      Sh. Ramsingh Munda and others              ....     Opp. Parties
                                                                  Mr. Sangram Keshari Sahoo, Advocate
                                                                                (Opposite Party No.1)
                                                 CORAM:
                                                JUSTICE K.R. MOHAPATRA
                                                        ORDER

                Order No.                              28.07.2023

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

2. Judgment dated 28th February, 2022 (Annexure-7) passed by learned District Judge, Khurda at Bhubaneswar in FAO No.95 of 2021 is under challenge in this CMP, where by dismissing the appeal, order dated 31st August, 2021 (Annexure-5) passed by learned Senior Civil Judge, Bhubaneswar in IA No.1 of 2016 (arising out of CS No.799 of 2016) has been confirmed.

3. Mr. Mishra, learned counsel for the Petitioners submits that Petitioners are Defendant Nos.1 and 2 in the suit. The suit has been filed by the Plaintiff Opposite Party No.1 for declaration and permanent injunction. IA No.1 of 2016 was filed under Order XXXIX Rules 1 and 2 CPC, which was allowed vide order under Annexure-5 restraining the Defendants from interfering with the peaceful possession of the Plaintiffs over the suit property. Being aggrieved, Petitioners preferred FAO No.95 of 2021. Learned District Judge, Khurda at Bhubaneswar dismissed the appeal vide judgment dated 28th February, 2022 (Annexure-7) and confirmed the order passed by learned trial Court under Annexure-5. Hence, this CMP has been filed.

Signature Not Verified // 2 // Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: Secreatary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 31-Jul-2023 11:10:38

3.1 It is his submission that the Petitioners are constructing their residential house by taking loan. The building plan in respect of the said construction has been approved. In such circumstances, if the Petitioners are restrained from raising any construction they will be highly prejudiced. He also made detailed submission assailing sustainability of both the impugned orders As such, the impugned orders under Annexures-5 and 7 have caused serious hardship to the Petitioners..

4. Mr. Sahoo, learned counsel for Plaintiff/Opposite Party No.1 submits that Petitioners are purchasers of a joint family property, which has not yet been partitioned by metes and bound. Thus, they are not entitled to enter into the suit property and make construction. Thus, the learned trial Court as well as the appellate Court has committed no error in restraining the Petitioners from interfering with the peaceful possession over the suit property.

5. Taking into consideration the submissions made by learned counsel for the parties and the materials placed before this Court, it is felt that if the Petitioners are facing undue hardship due to orders impugned herein, they should move an application under Order XXXIX Rule 4 CPC detailing their difficulties and grievances along with materials in support of the same.

6. Mr. Mishra, learned counsel for the Petitioners submits that the Petitioners would file an application under Order XXXIX Rule 4 CPC detailing their hardship caused to them by Defendant Nos.1 and 2 within a period of two weeks hence along with materials in support thereof. Learned counsel for Opposite Party No.1 submits that if such an application is filed the same should

Signature Not Verified // 3 // Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: Secreatary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 31-Jul-2023 11:10:38

be considered on its own merit giving opportunity of hearing to the parties concerned.

7. In view of such submissions of learned counsel for the parties, this Court, without expressing any opinion either on the merits of the impugned orders under Annexures-5 and 7 or on the submissions made by learned counsel for the parties, disposes of the CMP with a direction that in event Petitioners file an application under Order XXXIX Rule 4 CPC within a period of two weeks hence serving copy thereof on learned counsel for the Plaintiff/Opposite Party No.1 explaining their difficulties and hardship caused due to the order under Annexure-5 along with supporting materials, the same shall be considered in accordance with law on its own merit giving opportunity of hearing to the parties concerned.

Issue urgent certified copy of the order on proper application.

(K.R. Mohapatra) Judge

s.s.satapathy