JAYALAKSHMI PATRA Vs. SHYAMA KANTA MOHANTY

JUDGEMENT

(1.) This appeal is in challenge of the order dated 28.10.2011 passed by the learned Civil Judge (Senior Division), Bhubaneswar in I.A. No.179 of 2011 arising out of C.S. No.286 of 2011 dismissing the application under Order 39 Rules 1 and 2 read with Section 151 of the C.P.C.

(2.) The appellant is the plaintiff-petitioner before the lower court. She has filed the suit for specific performance of contract with other ancillary reliefs. Her case is that the suit land measuring Ac1.104 decimals located in Mouza Jayadev Vihar is a piece of Government land. It was leased out to Respondent No.1, Shyamakanta Mohanty, by the G.A. Department, Government of Orissa (R-2) under a deed executed on 22.12.1984 which was registered on 4.1.1985. As R-1 could not pay the premium dues, a show cause notice was served on him for termination of the lease. So, R-1 put forth an offer to the present appellant and late Rajendranath Patra, predecessor-in-interest of proforma Defendant Nos.3 to 5, for sale of the suit land which was accepted and accordingly on 31.12.1991 an agreement for sale was entered into between R-1 on one hand and the appellant and said Rajendranath Patra on the other. On the same day, i.e., on 31.12.1991, R-1 also executed one registered General Power-of-Attorney in favour of appellant's husband authorizing him, inter alia, to sell the suit land on his behalf. On the very day of agreement for sale, possession of suit land was delivered to the appellant and late Rajendranath Patra. On the strength of such agreement for sale the appellant deposited with the R-2 Rs.57,974/- towards arrear premium dues in respect of the lease. Thereafter, on different dates part payments were made by the appellant and late Rajendranath Patra to Respondent No.1 towards the consideration payable under the agreement for sale. On 23.12.1992 and 29.12.1993 the last two installments, at the rate of Rs.8,282/-, towards payment of premium were paid to R-2 by the appellant and Rajendranath Patra. Thus, R-2 has received the full and final consideration/premium amount in respect of the suit property. On 26.1.2011 the appellant and the legal heirs of Rajendranath Patra requested R-1 to execute a sale deed in respect of the suit property but he did not turn up to execute the same. Instead, it is learnt from reliable source that R-1 is going to create third party interest over the suit property. Therefore, the appellant has filed the interim application with a prayer to restrain the respondents-O.Ps. from taking any coercive action against the appellant as well as proforma defendants and creating any third party interest in the suit property during pendency of the suit.

(3.) Respondent No.1 has taken the stand that on the basis of the lease he took over possession of the suit land on 18.1.1985. Since the lease was for the purpose of running one Cinema Hall, he started construction of a Cinema Hall over the suit land but due to some difficulties could not complete the construction within the stipulated period for which R-2 issued show cause notice on 15.5.1998. His reply to the show cause was not taken into consideration and the lease was cancelled vide order dated 2.1.1999. He approached this Court by filing W.P. (C) No.12214 of 2006 which was disposed of with a direction to R-2 to consider his grievance. After receiving the order of this Court, R-2 rejected his prayer for revocation of the order of cancellation of lease. So, he moved the Chief Secretary, Government of Orissa who did not take any action. He preferred a writ application vide W.P.(C) No.591 of 2007 and this Court directed the Chief Secretary to consider his case sympathetically. But the Chief Secretary rejected his prayer for reconsideration of the order of cancellation of lease. He challenged that order before this Court in W.P. (C) No.16118 of 2008 which was disposed of with a direction to the Chief Secretary to reconsider his case and take a decision on the same by the end of March 2011. He put forth a fresh proposal before the Chief Secretary for consideration of his case which is still pending.