Orissa High Court
Ghasia Oram @ Ghasiram Oram vs Mandara Tanty & Others .... Opposite ... on 1 May, 2025
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 1405 of 2024
Ghasia Oram @ Ghasiram Oram .... Petitioner
Mr. A.P.Bose Advocate
-Versus-
Mandara Tanty & others .... Opposite Parties
None
CORAM:
MR. JUSTICE R.K. PATTANAIK
ORDER
01.05.2025
Order No.
01. 1. Heard Mr. Bose, learned counsel appearing for the
petitioner.
2. No notices are issued to the opposite parties as the matter is
disposed of at the stage of admission. Notice vis-à-vis Proforma
opposite party No.2 is dispensed with as the same is not necessary.
3. Instant petition is filed by the petitioner challenging the
impugned order dated 8th May, 2024 as at Annexure-1 passed in
FAO No. 10 of 2019 by learned District Judge, Sundargarh
confirming the order dated 21st August, 2018 i.e. Annexure-5 of
learned Senior Civil Judge, Sundargarh in I.A. No. 51 of 2018 arising
out of the suit in C.S. No. 88 of 2018 on the grounds stated therein.
4. Mr. Bose, learned counsel for the petitioner submits that the
husband of opposite party No.1 had filed RSA No. 467 of 2003 but
the same was dismissed for non-prosecution in the year 2018 and it
was corresponding to T.S. Case No. 15 of 1977 of the file of learned
Civil Judge (Junior Division), Sundargarh and further corresponding
to T.A. Case No. 24 of 1998 dismissed by learned District Judge,
Sundargarh on 24th April, 1982. The submission is that such dismissal
of RSA No. 467 of 2003 though was taken cognizance of by
learned courts below but implication thereof was not examined and
it has led to the passing of the impugned orders as per Annexures-1
& 5. The contention of Mr. Bose, learned counsel is that learned
court below ought to have duly examined such aspect of the case,
especially when, RSA No. 467 of 2003 was dismissed. A copy of the
judgment in T.A. No. 24 of 1998 dated 20th April, 2002 is produced
in Court today, referring to which, Mr. Bose, learned counsel would
further submit that the appeal at the behest of the late husband of
opposite party No.1 was dismissed and thereafter, RSA No. 467 of
2003 disposed of on account of default in 2018. It is the submission
that the suit was instituted by opposite party No.1's husband in
respect of the self-same property and since, RSA No. 467 of 2003
was ultimately dismissed for non-prosecution, learned courts below
ignoring the same, directed status quo to be maintained in respect
of the suit property, hence, therefore, the impugned orders under
Annexures-1 & 5 are liable to be interfered with.
5. A copy of the W.S. by opposite party No.1 is at Annexure-2
and the same is perused. In fact, opposite party No.1 moved the
court of 1st instance in I.A. No. 51 of 2018 under Order 39 Rules 1 &
2 CPC seeking temporary injunction in respect of the suit schedule
property and it was ultimately disposed of vide Annexure-5 with a
direction to the parties to maintain status quo over the same till
disposal of the suit and it has been confirmed thereafter by learned
court below as per Annexure-1 in FAO No.10 of 2019. On a bare
reading of Annexure-1, the Court finds that learned court below has
taken judicial notice of the disposal of RSA No. 467 of 2003 but
proceeded to consider the plea of opposite party No.1 for
injunction in respect of the self-same property. In fact, it has been
brought to the notice of the Court by Mr. Bose, learned counsel
with regard to an order in Revenue Appeal No. 29 of 2008 and the
same was dismissed on 23rd July, 2018 as against the order of the
Officer on Special Duty (Land Reforms), Sundargarh dated 30th June,
2008. It is claimed that on application of the husband of opposite
party No.1, the authority concerned was approached seeking
restoration of the suit schedule property but it was disposed of on
30th June, 2008 against which Revenue Appeal No. 29 of 2008 was
filed and disposed of on 23rd July, 2018. As it appears from
Annexure-1, learned court below proceeded on the premise that
restoration of the suit schedule property was directed upon disposal
of Revenue Appeal No. 29 of 2008. Against such a conclusion, Mr.
Bose, learned counsel produced a copy of the order in Revenue
Appeal No. 29 of 2008. On a perusal of the order passed therein
arising out of Revenue Misc. Case No. 105 of 2007, the Court finds
that learned Additional District Magistrate, Sundargarh, while
disposing of the appeal, has taken cognizance of the dismissal of
RSA No. 467 of 2003 and finally, confirmed order dated 30th June,
2008 of the authority below. In other words, such restoration
application of Bhimsen Tanty, late husband of opposite party No.1
in Revenue Misc.Case No. 105 of 2007 was denied and thereafter,
appeal filed by him was disposed of and dismissed on 23rd July,
2018. It is not known as to how learned court below reached at
such a conclusion regarding restoration of suit schedule property
allowed in favour of the husband of opposite party No.1 as made
to reveal from Annexure-1. That apart, the Court is in agreement
with the contention of Mr. Bose, learned counsel that the
implication of dismissal of RSA No. 467 of 2003 has not been duly
examined by the learned court below. It is at the cost of repetition
stated that learned court below has referred to the dismissal of the
second appeal on 11th May, 2016. In fact, a copy of the order dated
11th May, 2016 in RSA No. 467 of 2003 is at Annexure-6. In view
of the facts narrated herein before and the conclusion reached at,
the Court is of the view that plea of opposite party No.1 for
temporary injunction in terms of Order 39 Rules 1 & 2 is required to
be freshly examined with a proper hearing of the petitioners
followed by an order according to law.
6. Hence, it is ordered.
7. In the result, CMP stands allowed. As a necessary corollary,
the impugned orders as at Annexures-1 & 5 in FAO No. 10 of 2019
and I.A. No. 51 of 2018 respectively by learned courts below are
hereby set aside. For the discussions hereinabove, I.A. No. 51 of
2018 is restored to file for a fresh decision by learned Senior Civil
Judge, Sundargarh. It is further directed that upon hearing of the
parties on the plea of temporary injunction under Order 39 Rules 1
& 2 CPC, learned court below shall proceed to pass an order as per
and in accordance with law at the earliest preferably within a period
of four weeks from the date of receipt of a copy of this order.
8. In the circumstances, however, there is no order as to costs.
9. Urgent certified copy of this order be issued as per rules.
Kabita
Digitally Signed Judge
Location: OHC, Cuttack
Date: 03-May-2025 17:34:27
