Orissa High Court
Lalita Sahoo And 2 Ors. vs Rania Das, Amar Behera And 2 Ors. on 23 April, 2004
Equivalent citations: AIR2004ORI152, 98(2004)CLT44, AIR 2004 ORISSA 152, (2004) 20 ALLINDCAS 932 (ORI), 2004 (20) ALLINDCAS 932, (2004) 2 CLR 46 (ORI), (2004) 98 CUT LT 44
Author: P.K. Tripathy
Bench: P.K. Tripathy
ORDER P.K. Tripathy, J.
1. Though the Opp. Parties No. 2 to 4 are the plaintiffs and petitioner in the Court below has been arrayed as Proforma Opp. Parties because they could not immediately available.
Heard.
2. This writ petition stand disposed of at the stage of admission.
3. Plaintiffs in Civil Suit No. 216 of 2002 of the Court of Civil Judge (Senior Division), Dhenkanal have filed this writ application challenging to the order passed on 9.12.2003 in rejecting their application for a decree of injuncting in accordance with provision under Order 12, Rule 6 of the Code of Civil Procedure, 1908 (in short 'the CPC').
4. It appears from the impugned order and learned counsel for the plaintiffs-petitioners states that plaintiffs have instituted the suit inter alia claiming for partition of the suit schedule land on the basis of existing relationship with the defendants and in her written statement, the defendant No. 1 has not only admitted about such relationship thereby conceding to the rights of the plaintiffs to claim for partition, but also said defendant has admitted about alienating two acres, out of the suit properties to a stranger purchaser and therefore, a decree under Order 12, Rule 6, CPC can be passed by granting a decree of injunction against the defendant No. 1 not to act upon that sale transaction and to bound all persons claiming under that sale deed not to assert any right. Learned counsel for the petitioners states that learned Civil Judge (Senior Division), Dhenkanal without properly appreciating such fact situation, the admission of the defendant No. 1 and the provision of law under Order 12, Rule 6, CPC has wrongly rejected the application filed by the plaintiffs and therefore, he has failed to exercise the jurisdiction vested in him correctly and lawfully.
5. It appears from the impugned order that learned Civil Judge has noted that though the relationship between the parties is admitted by the defendant No. 1 so also about the sale transactions but the defendant No. 1 resisted to the aforesaid claim of the plaintiffs on the plea of ouster which she has advanced as a plea in her written statement. Learned Civil Judge has also noted the contention of the defendant No. 1 that though she executed the sale deed but the receipt has not been handed over to the purchaser because of the non-payment of the full consideration money and that fact situation does not entitle plaintiffs for a decree under Order 12, Rule 6, CPC.
6. Considering contention of the plaintiffs petitioners and the above noted reasons assigned by learned Civil Judge, this Court finds that the impugned order does not suffer from illegality or jurisdictional error. Since the defendant No. 1 has pleaded ouster of the plaintiffs and thereby claims right, title and possession over the suit land, exclusively to herself therefore, there cannot be any decree of permanent injunction under Order 12, Rule 6, CPC, when different issues arising in the suit are yet to be decided.
7. At this stage, learned counsel for the plaintiffs-petitioners states that plaintiffs shall file appropriate application under Order 39, with the prayer to restrain the defendant No. 1 to not to deliver the receipt or possession of the case land to the purchaser and direction may be given to learned Civil Judge to consider that application. Since such a course is always open to the plaintiffs, this Court feels no necessity to issue a direction to the Court below in that respect. However, if such an application is filed, for interim protection, it may be appropriate for learned Civil Judge to consider that application in accordance with law but expeditiously.
For the reasons indicated above, the writ application stand disposed of without interfering with the impugned order but with the above noted observation.