Biswanath Giri Vs Nimain Murmu And Others

K.R. Mohapatra, J

This matter is taken up through hybrid mode.

The Petitioner in this CMP seeks to assail the order dated 22nd December, 2023 (Annexure-1) passed by learned Senior Civil Judge, Jaleswar in I.A. No.275 of 2023 (arising out of C.S. No.1158 of 2023), whereby an application filed by the Plaintiff-Petitioner under Order XXXIX Rule 3 CPC, has been rejected.

Mr. Jena, learned counsel submits that the mother of the Petitioner had purchased Schedule ‘B’ property in the year, 1983. Since then, they are using Schedule ‘A’ property for their access to the public road. Recently the Defendants-Opposite Parties tried to obstruct the passage by making construction thereon. Hence, the suit has been filed for easementary right over the suit property and for other consequential and ancillary relief. Since the Opposite Parties are contemplating to make construction over the suit property obstructing passage of the Petitioner, an application under Order XXXIX Rules 1 and 2 CPC was also filed for temporary injunction.

Along with the application, the Petitioner also filed an application under Order XXXIX Rule 3 CPC with a prayer to dispense with service of notice on the Defendants 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 on the ground that since the Petitioner claims easementary right over Schedule ‘A’ property, the Opposite Parties are required to be heard in the matter as Schedule ‘A’ property admittedly recorded in the name of Opposite Party No.1. If construction is made over ‘A’ Schedule property, access to the residential house of the Petitioner will be completely obstructed. Hence, learned trial Court should have considered the petition under Order XXXIX Rule 3 CPC and passed an ex parte ad interim order of injunction.

Considering the submission made by learned counsel for the Petitioner and on perusal of the record, it appears that the Plaintiff-Petitioner claims easementary right over the property recorded in the name of Opposite Party No.1. It is claimed that Schedule ‘A’ property is being used as passage for access to Schedule ‘B’ property purchased by the mother of the Petitioner since 1983. It is also submitted by Mr. Jena, learned counsel that from the date of purchase, the Petitioner and his family members are using Schedule ‘A’ property as access to Schedule ‘B’ property over which their residential house situates. Be that as it may since the land is recorded in the name of Opposite Party No.1 and allegations have been made against Opposite Party Nos.2 and 3, they should be given an opportunity of hearing before any ad interim order of temporary injunction is passed.

In view of the above, this Court feels that learned trial Court has committed no error in rejecting the petition under Order XXXIX Rule 3 CPC. It is, however, observed that if there is urgency in the matter, the Petitioner will be at liberty to take out notice on Opposite Party Nos.1 to 3 by Special Messenger. If a move to that effect is made before learned trial Court, the same shall be allowed. It further appears that the matter is posted to 12th January, 2024. If notice on the Opposite Parties is made sufficient by that date, learned trial Court should make all endeavour to see that the petition under Order XXXIX Rules 1 and 2 CPC (I.A. No.275 of 2023) is heard as expeditiously as possible preferably within a period of fifteen days therefrom giving opportunity of hearing to the parties concerned.

With the aforesaid observation and direction, the CMP is disposed of.

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

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