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State of Orissa and anr. Vs. Ganeshjew Mahapravu and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 546 of 1980
Judge
Reported inAIR1986Ori134
ActsCode of Civil Procedure (CPC) , 1908 - Sections 80(2) - Order 39, Rule 1
AppellantState of Orissa and anr.
RespondentGaneshjew Mahapravu and ors.
Appellant AdvocateStanding Counsel
Respondent AdvocateN.C. Pati, Adv.
Excerpt:
.....and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - 2. the impugned order is challenged mainly on the ground that the court below has failed to exercise jurisdiction vested in him in not recalling the ex parte ad interim order of injunction granted in violation of the mandatory provisions in section 80(2) c. had the learned court below applied his mind to the objection filed by the petitioners, he would not have failed to notice the urgency of the matter and the necessity to dispose of the objection filed by the petitioners quickly, particularly in view of the contention that the ad interim order of injunction passed without service of notice to the petitioners is against the mandatory provisions of section 80(2) c. has been the subject matter of series of..........in section 80(2) c. p. c. 3. the petitioners in their application for recalling the order of ad interim injunction stated inter alia that the suit was not maintainable having been filed without service of notice under section 80(1) c.p.c. and hence the court has no jurisdiction to entertain the suit and to pass any interim order; that even if the suit could be filed without service of prior notice on the defendants as required under section 80 c.p.c., no interim order whatsoever could be passed without service of a notice inview of the mandatory provisions of section 80(2) c.p.c. that the disputed land was the subject matter of a proceeding under the orissa prevention of land encroachment act wherein notices were duly served on the opposite parties and since the said opposite parties.....
Judgment:
ORDER

D.P. Mohapatra, J.

1. In this application, under Section 115 C.P.C. the petitioners seek to challenge the order dated 23-8-1980 in Misc. Case No. 262 of 1980 by the Munsif, Kendrapara. Under the said order, the learned Munsif rejected the petition filed by the petitioners to recallthe ad interim order of injunction passed against them.

The opposite parties filed T. S. 189 of 1980 impleading the State of Orissa and Tahasildar, Kendrapara (petitioners in this case) as defendants, praying for declaration of their title and confirmation of their possession over the suit land or if found dispossessed during the pendency of the suit, for restoration of possession to them and also for permanent injunction restraining the defendants from dispossessing the plaintiffs from the suit land. They filed an application under Order 39, Rule 1 C.P.C. praying that notice and order of injunction be issued simultaneously restrainirg the opposite parties not to dispossess the petitioners from the suit land and not to change the nature and character of the suit land. This application was numbered as Misc. Case No. 262 of 1980. They also filed another application praying to hear the injunction matter ex parte. On consideration of the said application, the learned Munsif passed an ex parte order of injunction on 29-7-1980 restraining the petitioners in this revision petition from dispossessing the opposite parties from the suit land and from changing the nature and character of the same. The court fixed 2-9-80 for objection. On receiving the notice of the ex parte order of injunction, the petitioners filed a petition dated 12-8-1980 to declare the ad interim order of injunction passed on 29-7-80 without jurisdiction and a nullity and to recall the said order. This application was rejected by the impugned order.

2. The impugned order is challenged mainly on the ground that the court below has failed to exercise jurisdiction vested in him in not recalling the ex parte ad interim order of injunction granted in violation of the mandatory provisions in Section 80(2) C. P. C.

3. The petitioners in their application for recalling the order of ad interim injunction stated inter alia that the suit was not maintainable having been filed without service of notice under Section 80(1) C.P.C. and hence the court has no jurisdiction to entertain the suit and to pass any interim order; that even if the suit could be filed without service of prior notice on the defendants as required under Section 80 C.P.C., no interim order whatsoever could be passed without service of a notice inview of the mandatory provisions of Section 80(2) C.P.C. that the disputed land was the subject matter of a proceeding under the Orissa Prevention of Land Encroachment Act wherein notices were duly served on the opposite parties and since the said opposite parties were proceeding with a construction of a house on the suit site thereby blocking the public road, a notice under Section 8 of the Act was also issued to them and they had appeared in pursuance of the said notice and hence, there was absolutely no justification to pass an ex parte order of injunction against the petitioners and thereby permitting the opposite parties to continue with the offending construction. On these averments, they contended that the ex parte order of injunction was without jurisdiction and hence a nullity and should be recalled immediately.

The learned Munsif has rejected the petition on the grounds that notice having been issued to file objection by a particular date, he cannot take up the matter on a date prior to the date fixed; that since the petitioners have treated the ex parte order of injunction as a nullity and are alleged to have violated the said order for which a separate proceeding under Order 39, Rule 1 C.P.C. is pending, there is no urgency in the matter and because the petitioners have not made any averment on merits of the application but have confined their objections to questions of maintainability and jurisdiction the matter cannot be heard and disposed of.

To speak the least, the order of the learned Munsif seems to be passed on a total non-application of mind to the real points in issue. He appears to have been swayed by the fact that the order is challenged as being a nullity for want of jurisdiction and the fact that the allegation has been made by the opposite parties that the petitioners have violated ad interim order of injunction. The petitioners who were restrained by the ad interim order of injunction having filed an objection to the same and having prayed to recall the said order, the court below should have considered the matter immediately and passed appropriate orders thereon. The nature of objections raised in the petition on the fact that the date fixed in the notice has not yet come or that any other proceeding is pending against the petitioners are irrelevant considerations and cannot justify postponement of disposal of objection filedby the petitioners. Had the learned court below applied his mind to the objection filed by the petitioners, he would not have failed to notice the urgency of the matter and the necessity to dispose of the objection filed by the petitioners quickly, particularly in view of the contention that the ad interim order of injunction passed without service of notice to the petitioners is against the mandatory provisions of Section 80(2) C.P.C. While making a relaxation for entertaining a suit for injunction without a notice under Section 80(1) C.P.C., legislature has made it amply clear that no relief by interim order or otherwise can be granted in such a suit without service of notice to the State or a Public Officer concerned. The scope and ambit of Section 80, C.P.C. has been the subject matter of series of decisions and it is well settled that the provisions are mandatory in nature and should be strictly construed. Since the matter is to be considered by the court below, it is not necessary to deal with the point in detail.

4. In view of the aforesaid discussion, there was absolutely no justification for the trial court to postpone consideration of the objection filed by the petitioners on the grounds stated in the impugned order. Accordingly, the impugned order is vacated. The learned Munsif is directed to dispose of the injunction matter in accordance with law within four weeks hence. Both the parties are directed to appear before the trial court on 1-3-1984 for receiving appropriate directions.


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