PRAHALLAD CH PANDA Vs. PRADEEP KUMAR LENKA

JUDGEMENT

(1.) The petitioner, who is the defendant in C.S. No. 364 of 2003-1 in the Court of the learned Civil Judge (Junior Division), Bhadrak has filed this writ petition challenging the order dated 26.4.2005 passed in Misc. Case No. 37 of 2004 (Annexure -2) in dismissing his application under Order 39 Rule 4 of the Code of Civil Procedure as well as the order of the learned Additional District Judge, Bhadrak dated 13.12.2005 in F.A.O. No. 31 of 2005( Annexure-3) in confirming the above order of the learned trial Court under Annexure-2.

(2.) The plaintiff/opposite parties at the time of filing of their suit, filed an application under Order 39 Rule 1 and 2 of the Civil Procedure Code which was numbered as Misc. Case No.277 of 2003. By order dated 23.4.2003 the learned trial Court had directed both the parties to maintain status quo in respect of the suit schedule land, which was made absolute by order dated 13.1.2004. In spite of the above order, since the petitioner, who is the defendant in Court below, proceeded with construction over the suit schedule land, an application under Order 39 Rule 2-A of the Civil Procedure code for violation of the order of status quo, was filed by the Plaintiff i.e. Misc. Case No. 1 of 2004 and after receipt of the notice in the said Misc. Case, the defendant/petitioner appeared in the case and filed his objection inter alia stating therein that he is in no any way concerned with the title as well as possession of the suit schedule land and it is the D.R.D.A on whose behalf he is looking after the construction of the shop rooms over the suit schedule land being the Sarpanch of the Gram Panchayat. The order of status quo dated 23.4.2003 was initially passed in his absence, without any notice to him, so also the subsequent order dated 13.1.2004 by which the interim order of status quo was made absolute and by that date also no notice was served on him.

(3.) With the above plea, the defendant/petitioner has filed an application under Order 39 Rule 4 of the Code of Civil Procedure for variation of the status quo order which was numbered as Misc. Case No. 37 of 2004. The defendant had taken the self-same plea which he had taken in his objection filed to the petition under Order 39 Rule 2 A of the Code of Civil Procedure. In support of his contention that no notice was received by him, he filed an affidavit of one Bijoy Kumar Mohapatra, who was one of the witnesses to the service of notice and examined him as P.W.2. The defendant/petitioner himself was examined as P.W. 1.