Advocates:
['AJIT KUMAR TRIPATHY', '', 'P K NAYAK', 'P KAR', 'S MOHANTY', 'M/S SUBRAT SATAPATHY', '', 'A C SWAIN', 'L N RAYATSINGH']

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IN THE HIGH COURT OF ORISSA AT CUTTACK

CMP No. 976 OF 2022

Harekrushna Sahu

&.

Petitioner

Mr. Ajit Kumar Tripathy, Advocate

-versus-

State of Odisha and others

&.

Opp. Parties

Mr. Swayambhu Mishra,

Additional Standing Counsel

(For Opp. Party Nos.1 and 2)

Mr. Subrat Satapathy, Advocate

(For Opp. Party No.3)

CORAM:

JUSTICE K.R. MOHAPATRA

ORDER

Order No.

09.12.2022

4.

1.

This matter is taken up through hybrid mode.

2.

The Petitioner in this CMP seeks to assail the order dated

26^th July, 2022 (Annexure-8) passed in I.A. No.12 of 2022

(arising out of C.S. No.61 of 2020), whereby learned Civil Judge

(Senior Division), Chandikhole dismissed an application filed by

the Petitioner under Section 151 C.P.C.

3.

Mr. Tripathy, learned counsel for the Petitioner submits

that C.S. No.61 of 2020 has been filed for declaration and

permanent injunction. During pendency of the suit, the Petitioner

had filed I.A. No.53 of 2020 under Order XXXIX Rules 1 and 2

C.P.C. to restrain the Opposite Parties from entering upon the

suit land and also to permit him to repair, renovate, remodel and

reconstruct the shop house existing over the suit land. Said

application was disposed of vide order dated 16^th September,

2021 directing the parties to maintain status quo over the suit

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property. But, in the meantime due to cyclone Jawad occurred

in the month of December, 2021, the shop room as well as

residential house of the Petitioner was completely damaged.

Two side walls and roof of the house were partially collapsed

and

it

requires

immediate

repairing/renovation

and

reconstruction to make the house habitable. Learned trial Court

most erroneously taking into consideration that the earlier

petition i.e. I.A. No.53 of 2020 was disposed of vide order dated

16^th September, 2021 with a direction that the parties should

maintain status quo over the suit property and that there is no

change in circumstance in between, a successive petition for the

self same prayer is not maintainable.

4.

It is his submission that learned trial Court though took

note of contention of the Petitioner to the effect that the cyclone

Jawad took place during the month of December, 2021, but

failed to appreciate that the order in I.A. No.53 of 202o was

passed earlier to that. Thus, the finding that there is no change

in circumstance is not correct. Further learned trial Court has

not dealt into the merit of the petition, as contended. Hence, he

prays for setting aside the impugned order under Annexure-8

and to remit the matter back to learned trial Court for fresh

adjudication giving opportunity of hearing to the parties.

5.

Mr. Satapathy, learned counsel appearing for the Chief

Administrator, Shree Jagannath Temple Managing Committee,

Puri-Opposite Party No.3 submits that he has received the

instruction. But, he could not file the counter affidavit. He,

therefore, prays for an adjournment to file counter affidavit. But

in view of the order of this Court dated 2^nd December, 2022 to

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the effect that, if no instruction is received by the next date, the

Court will proceed in the matter in accordance with law, this

Court refuses to grant any further adjournment. He, however,

submits that the claim of the Petitioner in the suit is baseless as

the lease deed in question was executed in his favour by the

Jagannath Road Fund Authority, which was under the control of

Endowment Commissioner. After enactment of the Jagannath

Temple Act, 1954, the lease deed executed by the Jagannath

Road Fund Authority is no more valid and thus, the claim of the

Petitioner is not sustainable.

6.

Mr. Mishra, learned Additional Standing Counsel

appearing for the Opposite Party Nos