Allowed

Surendranath Sahoo v. Sabita Sukla

Orissa HC14 Sept 2023CMP/790/2023

Case brief

AI extract

What is this about?

On a challenge to orders staying an application under Order XXXIX Rule 4 CPC, the Court held that collateral proceedings keeping the lis alive do not affect suit merits. It set aside the impugned orders and remitted the matter for adjudication.

What did the court decide?

The impugned orders were set aside and the matter was remitted to the Senior Civil Judge, Salipur to adjudicate the application on its merit after hearing parties.

Surendranath Sahoo Vs Sabita Sukla — Civil Procedure and Limitation | Orissa HC (2023)

¶1

IN THE HIGH COURT OF ORISSA AT CUTTACK

¶2

CMP NO. 790 OF 2023

¶3

Surendranath Sahoo

¶4

…. Petitioner

¶5

Mr. P.K. Rath, Senior Advocate being assisted by Ms. S. Das, Advocate

¶6

-versus-

¶7

Sabita Sukla and others

¶8

…. Opp. Parties Mr. Prafulla Kumar Jena, Advocate

¶9

CORAM: JUSTICE K.R. MOHAPATRA

ORDER

Order No.

14.09.2023

This matter is taken up through hybrid mode.

¶15

2 . Order dated 3^rd July, 2023 (Annexure-1) passed by learned Additional District Judge, Salipur in FAO No.2 of 2023 is under challenge in this CMP, whereby dismissing the appeal, learned Appellate Court confirmed the order dated 30^th September, 2022 (Annexure-23) passed by learned Senior Civil Judge, Salipur in CMA No.85 of 2022 (arising out of C.S. No.6765 of 2014) holding that the application under Order XXXIX Rule 4 C.P.C. will be taken up after the interim order passed by this Court in CMP No.1041 of 2018 staying further proceedings of the suit is vacated.

¶16

Mr. Rath, learned Senior Advocate appearing for the Petitioner submits that both the Courts proceeded on a footing that in view of the interim order passed by this Court in CMP No.1041 of 2018 staying further proceeding of the suit, it would be improper to pass any order in CMA No.85 of 2022 filed under Order XXXIX Rule 4 C.P.C. It is his submission that

¶17

Page 1 of 4

¶18

// 2 //

¶19

CMP No.1041 of 2018 has been filed assailing the order dated 20^th March, 2018 passed in the aforesaid suit, whereby an application to stay further proceedings of the suit till disposal of W.P.(C) No. 721 of 2016 was rejected. This Court entertaining the aforesaid CMP passed an interim order staying further proceedings of the suit till the next date, which is still continuing. It is further submitted that law is well settled that collateral proceedings, which do not affect the merit of the suit, can be taken up during subsistence of an interim order passed by this Court to keep the lis alive and to protect the interest of the parties. Neither learned trial Court nor learned Appellate Court appreciated the aforesaid position of law and resultantly passed the impugned orders. Hence, both the impugned orders under Annexure-1 and 23 are liable to be set aside.

¶20

Mr. Jena, learned counsel for the Opposite Parties submits that in the petition under Order XXXIX Rule 4 C.P.C., the Petitioner essentially prayed to fill up the sand in the land in question, which would change the nature and character of the suit property. The land has already been developed as per the stand taken by the Petitioner in the proceeding under Order XXXIX Rules 1 and 2 C.P.C. Upon hearing learned counsel for the parties, learned trial Court passed an interim order of injunction on an application filed by the Plaintiff-Petitioner and also passed an order of status quo entertaining an application filed by the Defendants-Opposite Parties. Since the aforesaid interim orders were passed upon hearing learned counsel for the

¶21

Page 2 of 4

¶22

// 3 //

¶23

parties, the same do not require any alteration during pendency of the suit. He, therefore, submits that there is no infirmity in the impugned orders under Annexures-1 and 23. He, therefore, prays for dismissal of CMP.

¶24

Considering the rival contentions of learned counsel for the parties and on perusal of the impugned orders more particularly under Annexure-23 passed by learned trial Court, it appears that it refused to entertain the application under Order XXXIX Rule 4 C.P.C. and kept it pending till order of stay passed by this Court is vacated. Learned Appellate Court also reiterated the same in the impugned order under Annexure-1 and observed that it would not be proper to pass any order altering the order passed under Order XXXIX Rules 1 and 2 C.P.C. during subsistence of an interim order of stay passed by this Court. Law is well settled that a Court may entertain an application for any interim order to keep the lis alive during subsistence of an order of stay of further proceedings of the suit passed by any higher Court. There is no legal impediment to entertain an application under Order XXXIX Rule 4 C.P.C., if it does not touch the merit of the suit. There is nothing on record to show that the order, if any, to be passed in CMA No.85 of 2022 will touch the merit of the suit. This aspect was lost sight of by both learned trial Court as well as learned Appellate Court while passing the impugned orders under Annexures-1 and 23. As such, the impugned orders under Annexures-1 and 23 are not sustainable and the same are set aside. The matter is remitted to

¶25

Page 3 of 4

¶26

// 4 //

¶27

the learned Senior Civil Judge, Salipur to adjudicate CMA No.85 of 2022 on its own merit giving opportunity of hearing to the parties concerned.

¶28

With the aforesaid observation and direction, the CMP is disposed of.

¶29

Urgent certified copy of this order be granted on proper application.

¶30

(K.R. Mohapatra)

¶31

bks

¶32

Judge

¶33

Signature Not Verified

¶34

Digitally Signed Signed by: BIJAY KUMAR SAHOO Reason: Authentication Location: High Court of Orissa, C utta ck Date: 18-Sep-2023 10:58:25

¶35

Page 4 of 4

Surendranath Sahoo v. Sabita Sukla

Case brief

What is this about?

What did the court decide?

Surendranath Sahoo v. Sabita Sukla

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

M/S.Sterlite Energy Vs Smt.Renu Khaitan

Subash Chandra Tarenia Vs Pradip Kumar Tarenia

Tahamir Khan Vs Collector, Puri

Surendranath Sahu Vs Kartik Chandra Sukla

Laxmidhar Mallick Vs State of Odisha

Bibhuti Bhusan Muduli Vs R.T.O.Kendrapara