SIBANARAYAN SAMAL Vs. STATE OF ORISSA

JUDGEMENT

(1.) HEARD learned counsel for the petitioners and the learned Addl.Government Advocate. Order dated 12.7.2011 passed by the learned Civil Judge (Jr. Division), Salipur rejecting the petitioners petition u/s 80(2), CPC for Leave to institute the suit before service of notice to the State -defendant and refusing to admit the suit is the subject matter of challenge in this writ petition.

(2.) PLAINTIFFS suit is for demarcating the boundary line of plaintiffs plot bearing No.2103/2460 which is adjacent to Government plot Nos.2141 and 2116 and to permanently injunct the defendants not to cause damage or demolish the latrine of the plaintiffs -petitioners on the assertion that the latrine in question stands on the plot of the plaintiffs whereas the defendants have falsely claimed that it stands on the government land and have threatened to demolish the same. Before expiry of the period of notice u/s. 80, CPC on the State Government, the petitioners filed a petition u/s. 80(2), CPC which has been rejected by the impugned order on the ground that the petitioners have admitted that they have encroached a portion of the government land.

(3.) IT is found from the impugned order that the Court below has not considered the scope of S. 80(2), CPC in its proper perspective with relation to the facts of the present case and there has been no finding at all whether the case is one of urgency or not. In the circumstances, I set aside the impugned order and remit the matter back to the trial Court to reconsider the petition afresh. The writ petition is accordingly disposed of. In view of disposal of the writ petition M.C. No.10998/11 stands disposed of. Issue UCC as per rules. Petition disposed of.