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Raj Kumar Agarwal vs I.F.G.L. Refractories Ltd., Sundargarh And Another

Orissa High Court · Decided on 17 May 2023 · Citation: (2023) 05 OHC CK 0238

HON’BLE JUDGES
K.R. Mohapatra, J
ACTS & SECTIONS REFERRED
Code of Civil Procedure, 1908 — Order 39 Rule 1, Order 39 Rule 2, Order 39 Rule 3
RESULT
Disposed Of
CASE NUMBER
CMP No. 537 Of 2023
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Judgment

7 paragraphs · 383 words

K.R. Mohapatra, J

1.

This matter is taken up through hybrid mode.

2.

Order dated 4th May, 2023 (Annexure-5) passed in I.A. No.5 of 2023 (arising out of C.S. No.9 of 2023) is under challenge in this CMP, whereby learned Civil Judge (Junior Division), Rourkela rejecting an application under Order XXXIX Rule 3 C.P.C. directed the Petitioner to take out notice on the Opposite Parties by special messenger fixing the date of their appearance to be 21st June, 2023.

3.

Mr. Nayak, learned counsel for the Petitioner submits that the suit has been filed for permanent injunction. Along with the plaint, the Petitioner filed an application under Order XXXIX Rules 1 and 2 C.P.C. for temporary injunction with a prayer to restrain the Opposite Parties from changing the nature and character of the suit land. In the meantime, since the Opposite Party No. 1 started construction of a boundary wall, an application under Order XXXIX Rule 3 C.P.C. was also filed along with the application to dispense with service of notice on the Opposite Parties and to take up the petition for injunction by passing an ex parte ad interim order of injunction. The said application was rejected. Although learned trial Court directed the Petitioner to take out notice on the Opposite Parties by special messenger but posted the matter to 21st June, 2023 for their appearance, which would frustrate the filing of the petition under Order XXXIX Rules 1 and 2 C.P.C. Hence, this CMP has been filed.

4.

Taking into consideration the nature of allegation and prayer made by learned counsel for the Petitioner, this Court disposes of this CMP with a direction that in the event the Petitioner files an application to take out notice on the Opposite Parties by special messenger fixing a short returnable date, the same shall be considered in accordance with law. If such an application is filed by 19th May, 2023, learned trial Court shall allow the same fixing the date within ten days for appearance of Opposite Parties and shall also make an endeavour to dispose of the application under Order XXXIX Rules 1 and 2 C.P.C. within a period of ten days after valid service of notice on the Opposite Parties.

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

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