GOURANGA DAS Vs. TAHASILDAR BALIAPAL

JUDGEMENT

(1.) THIS writ application is directed against the order dated 21-1-2007 passed by the learned Civil Judge (Senior division), Balasore in Civil Suit No. 107 of 2007 rejecting an application filed by the plaintiff-petitioner for dispensing with notice on the State under Section 80 (2) of the code of Civil Procedure and returning the plaint with liberty to re-file the same after compliance of Section 80 (1) of the C. P. C.

(2.) THE learned counsel for the State at the time of admission challenged the maintainability of the writ application on the ground that in view of amendment in the civil Procedure Code in Section 115, the writ application is not maintainable and the petitioner should have filed a revision under section 115 of the Code of Civil Procedure challenging the impugned order. In view such objection raised, the learned counsel for the parties were heard on maintainability as well as merit.

(3.) THE plaintiff who is petitioner before this Court had filed a suit for declaration of right, title, interest and for permanent injunction as well as damages. Defendants 1 to 3 are Government officials and defendant no. 4 is a contractor against whom allegation is that he was trying to forcibly evict the plaintiff-petitioner from the suit properties and construct a road thereon. It was the case of the plaintiff-petitioner that the defendants have already cut down some valuable trees from the land of the petitioner over plot Nos. 477 and 178 of Lot No. 1 and were contemplating to construct the road. In view of such urgency, there was no time to serve notice on the State officials as required under sub-section (1) of Section 80 of the Code of the Civil Procedure and a petition was filed under Section 80 (2) of the code of Civil Procedure for dispensing with the notice. The said petition was rejected by the learned Civil Judge in the impugned order and the plaint was returned with liberty to re-file the same after compliance of the mandatory provisions contained in subsection (1) of Section 80 of the Code of Civil Procedure,