Bijaya Kumar Gupta vs State of Odisha And Others

K.R. Mohapatra, J

This matter is taken up through hybrid mode.

Order dated 1st July, 2023 (Annexure-1) passed by learned Civil Judge, Bhubaneswar in I.A. No.01 of 2023 (arising out of C.S. No.1127 of 2023), whereby an application under Order XXXIX Rule 3 CPC, has been rejected.

It is submitted by Mr. Jena, learned counsel for the Petitioner that although the land stands recorded in the name of the G.A. Department, Government of Odisha, but the Petitioner entered upon the suit property on 5th July, 1983 at about 9 A.M., and is in possession over the same by making construction thereon since then. Hence, he has acquired a right through prescription over the suit property. The suit has been filed for declaration of right, title and interest over the property and permanent injunction. Taking advantage of recording of the suit property, the Opposite Parties are trying to evict the Petitioner from it. Hence an application in I.A. No.01 of 2023 has been filed under Order XXXIX Rules 1 and 2 CPC. Along with said application, the Petitioner also filed an application under Order XXXIX Rule 3 CPC for dispensing with service of notice on the Opposite Parties and to take up the petition under Order XXXIX Rules 1 and 2 CPC for passing an ex-parte ad interim order of injunction. The said application was rejected without considering the averments made in the petition under Order XXXIX Rules 1 and 2 CPC. Since the Petitioner apprehends eviction from the suit property at any time, an application under Order XXXIX Rule 3 CPC was moved. Learned trial Court, without appreciating the same, rejected the application. Hence, this CMP has been filed.

Taking into consideration the submission made by learned counsel for the Petitioner and on perusal of the case record, it appears that impugned order was passed on 1st July, 2023. In the meantime, two months have already elapsed. Thus, entertaining the CMP on merit will be a futile exercise, as it would cause further delay.

Accordingly, the CMP is disposed of with an observation that in the event, the Petitioner prays for taking out notice on the Opposite Party through Special Messenger, the same shall be allowed and upon service of notice on the Opposite Parties, learned trial Court should take step for early disposal of I.A. No.01 of 2023 giving opportunity of hearing to the parties concerned.

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

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