BIJAYA KUMAR GUPTA Vs. STATE OF ODISHA

JUDGEMENT

(1.) This matter is taken up through hybrid mode.

(2.) Order dtd. 1/7/2023 (Annexure-1) passed by learned Civil Judge, Bhubaneswar in I.A. No.01 of 2023 (arising out of C.S. No.1127 of 2023), whereby an application under Order XXXIX Rule 3 CPC, has been rejected.

(3.) It is submitted by Mr. Jena, learned counsel for the Petitioner that although the land stands recorded in the name of the G.A. Department, Government of Odisha, but the Petitioner entered upon the suit property on 5/7/1983 at about 9 A.M., and is in possession over the same by making construction thereon since then. Hence, he has acquired a right through prescription over the suit property. The suit has been filed for declaration of right, title and interest over the property and permanent injunction. Taking advantage of recording of the suit property, the Opposite Parties are trying to evict the Petitioner from it. Hence an application in I.A. No.01 of 2023 has been filed under Order XXXIX Rules 1 and 2 CPC. Along with said application, the Petitioner also filed an application under Order XXXIX Rule 3 CPC for dispensing with service of notice on the Opposite Parties 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 without considering the averments made in the petition under Order XXXIX Rules 1 and 2 CPC. Since the Petitioner apprehends eviction from the suit property at any time, an application under Order XXXIX Rule 3 CPC was moved. Learned trial Court, without appreciating the same, rejected the application. Hence, this CMP has been filed.