Somanath Nayak & Others vs State Of Odisha

M.S. Raman, J

This matter is taken up through Hybrid Mode.

Mr. S. Mantry, learned counsel or the petitioners stemming on paragraph-8 of the plaint in Civil Suit No.426 of 2023 filed before the court of the Civil Judge (Junior Division), Khurda, submitted that it has been specifically pleaded that physical possession over the disputed property has been occupied by the petitioners (plaintiffs in the trial Court) since the year 1949 and it has been specifically pleaded with respect to hostile animus to the true owner. Mr. S. Mantry, learned counsel for the petitioners has further submitted that in the appeal being F.A.O. No.10 of 2024, an Interlocutory Application vide I.A. No.1 of 2024 has been filed by the petitioners under Order-39, Rule-1 and 2 of the Code of Civil Procedure for grant of temporary injunction prohibiting the opposite parties, their agents and their staff from coming over the suit land and restraining them to create disturbances in the peaceful possession over the schedule land by the petitioners. The learned Appellate Court (First Addl. District Judge, Khurda) vide order dated 17.05.2024 has rejected the said petition in I.A. No.1 of 2024 considering that the said petition has been filed under Order-39, Rule-3 of C.P.C.

Mr. S. Mantry, learned counsel for the petitioners submitted that by way of memo dated 05.06.2024 he has placed on record certified copy of the order dated 20.05.2024 passed in the said F.A.O. and I.A, which is to the following effect:-

“Advocate for appellant/petitioner is present. Issue notice against the respondents. Put up on 28.06.24 for awaiting SR and PA.”

Mr. Subhasis Pattnaik, learned Additional Government Advocate appearing for opposite party nos.1 and 2-State submitted that grant of interim order, particularly when I.A. No.1 of 2024, arising out of F.A.O. No.10 of 2024 is pending adjudication by the learned First Appellate Court would seriously affect the proceeding. He further submitted that since the matter in I.A. No.1 of 2024 is directed to be placed for hearing on 28.06.2024, no prejudice would be caused if the learned First Appellate Court is directed to fix a date for early hearing of I.A. No.1 of 2024 filed in F.A.O. No.10 of 2024.

Considering the rival submissions of the respective parties, interest of justice would be best met, if the learned First Addl. District Judge, Khurda takes up the matter in I.A. No.1 of 2024, arising out of FAO No.10 of 2024 at the earliest possible time immediately after service of notices on opposite parties in the said I.A.. Accordingly, it is directed that the learned First Addl. District Judge, Khurda shall make an endeavour to consider of I.A. No.1 of 2024, which is filed under Order-39, Rule-1 and 2 of C.P.C. and dispose of the same within the parameters of law as contained in Order-39, Rule-1 and 2 of C.P.C., within a period of four weeks from 28.06.2024.

It is clarified that status-quo, as on date, shall be maintained by the parties till 31.07.2024. Parties are at liberty to move the learned First Appellate Court for vacation of interim order of status-quo, if circumstances so warrant and the learned appellate Court may pass appropriate orders in I.A. No.1 of 2024.

With the aforesaid observation and direction, this C.M.P. stands disposed of.

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