MADHUSUDAN HOTA Vs. RATNAKAR HOTA

JUDGEMENT

(1.) This appeal is against the order dated 18.3.2009 passed by the learned District Judge, Bhadrak, Balasore in Misc. Case No.4 of 2002 registered on an application under Order 39 Rule 2 A C.P.C.

(2.) Facts leading to the filing of the present appeal may be stated in brief. Appellant herein is defendant No.1 and Respondent No.1 is the plaintiff in T.S. No.452 of 2000 on the file of learned Civil Judge (Junior Division), Balasore. On the plaintiff's petition under Order 39 Rule 1 & 2 C.P.C, Misc. Case No 287 of 2000 was registered in which the prayer for interim injunction was rejected. Being aggrieved, he preferred Misc. Appeal No.123 of 2001 wherein direction to maintain status quo in respect of M.S. plot No.572 and 577/2235 was passed on 7.1.2002 on the consent of the parties which was made absolute vide judgment dated 23.1.2002 passed in the Misc. Appeal. After final disposal of that Misc. Appeal, R-1 filed a petition under Order 39 Rule 2 A C.P.C. alleging that the appellant and his sons disturbed the status quo by digging earth and putting cement pillars for construction of a house over the land in respect of which the parties were directed to maintain status quo. After giving opportunity to the defendant to file show cause and allowing the parties to adduce evidence and upon assessment of the materials placed before him, the learned District Judge passed the impugned order observing that Appellant having violated the order of status quo, his property i.e., the land pertaining to Plot No.577 be attached for a period of one year.

(3.) This order has been challenged on the grounds that the learned District Judge should not have entertained the application under Order 39 Rule 2 A CPC after the disposal of the Misc. Appeal; that when the learned District Judge concluded that there is no evidence as to when the appellant encroached any portion of a joint passage in respect of which the direction to maintain status quo was passed, he could not have held that the appellant had violated the order to maintain status quo; that the finding that the order of status quo has been violated is not supported any materials; and, in absence of proof of alleged violation beyond reasonable doubt, the impugned order should not have been passed.