Dismissed

Premananda Mohanty v. State Govt.,Dhenkanal

Orissa HC27 Apr 2021CMP/83/2021

Case brief

AI extract

What is this about?

The High Court in Chambers dismissed a special civil application challenging the Civil Judge's refusal to dispense with pre-litigation notice under Section 80(1) C.P.C. The Court held that since the notice was only to show cause, there was no urgency to dispense with notice. It further noted that the suit is barred under the relevant land encroachment Act.

What the court decided

AI extract

Premananda Mohanty Vs State Govt.,Dhenkanal — Property and Title | Orissa HC (2021)

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CMP No.83 of 2021

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27.04.2021 This matter is taken up through video conferencing mode.

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Heard Mr. Prasanna Kumar Rath, learned counsel for the petitioner and Mr. Amiya Kumar Mishra, learned Additional Government Advocate for the State-opposite parties.

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The petitioner in this CMP seeks to assail the order date 04.02.2021 (Annexure-1) passed by learned Civil Judge (Senior Division), Kamakhyanagar in Civil Suit No.18 of 2021, whereby he refused to entertain an application filed by the plaintiff under Section 80(2) C.P.C. and holding that the plaint to be not maintainable returned the plaint for compliance of notice under Section 80(1) C.P.C.

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Mr. Rath, learned counsel for the petitioner submits that the plaintiff-petitioner is the representative of the Friends Club, Bhuban. The Club is constructed over a piece of Government land in respect of Plot No.3006 under Khata No.434 to an extent of Ac.0.10 decimals of MouzaBhadaliapasi in the district of Dhenkanal since last more than 30 years. When the Tahasildar, Bhuban issued notice to the petitioner under the provisions of the Orissa Prevention of Land Encroachment Act, 1972 (for short ‘the Act’) for eviction of the petitioner from the case land and for demolition, the petitioner filed the suit in question. As there was urgency to protect the possession of the Club, a petition under sub-section 2 of Section 80 CPC was filed to dispense with notice and to entertain the prayer of the petitioner. Learned Civil Judge considering the fact that the suit has

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been filed for declaration of right, title and interest and possession over the suit land and for permanent injunction, came to a conclusion that notice under sub-section 1 of Section 80 C.P.C. should have been issued before institution on the suit against the State and public officers. He further submits that since the possession of the plaintiff is at stake due to notice issued under Annexure-5 for eviction, learned Civil Judge ought to have considered the petition filed under Section 80(2) C.P.C. As such, learned Court committed error in not entertaining the said application. He, therefore, prays for setting aside the impugned order and to issue direction to learned Civil Judge (Senior Division), Kamakhyanagar to entertain the application filed by the plaintiff-petitioner under Section 80(2) C.P.C and also to entertain the prayer for temporary injunction.

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Mr. Mishra, learned Additional Government Advocate for the State vehemently objected to the same. He submits that notice issued under Annexure-5 is a notice to show cause and not for eviction as submitted by Mr. Rath, learned counsel for the petitioner. As such, the petitioner is at liberty to participate in the said proceeding and file his/its reply, which can be considered in accordance with law. He further submits that a civil suit is barred under Section 16 of the Act. Hence, the civil suit is not maintainable. In view of the above, learned Civil Judge has committed no error in not entertaining the application under Section 80(2) C.P.C. and returning the plaint for compliance of Section 80(1) C.P.C.

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Heard learned counsel for the parties and perused the materials available on record. It appears that the cause of action for filing of the suit was the notice under Section 6(1) of the Act issued to the petitioner under Annexure-5 to show cause only and not for eviction and demolition as submitted by Mr. Rath, learned counsel for the petitioner. The petitioner is at liberty to participate in the said proceeding and file his/its reply the same. Section 16 of the Act bars a civil suit in respect of a matter in dispute under the Act. It further appears that the notice under Annexure-5 being a notice to show cause, there is no urgency to dispense with notice under Section 80(1) C.P.C.. As such, I find no infirmity in the impugned order under Annexure-1.

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Accordingly, this CMP being devoid of any merit stands dismissed.

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8 . As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the order available in the High Court’s website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court’s Notice No.4587 dated 25th March,2020 as modified by Court’s Notice No.4798 dated 15^th April, 2021.

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……..……………………

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K.R. Mohapatra,J.

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Premananda Mohanty v. State Govt.,Dhenkanal

Case brief

What is this about?

What the court decided

Premananda Mohanty v. State Govt.,Dhenkanal

Case brief

What is this about?

What the court decided

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