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Mahavir Prasad Santuka and ors. Vs. Sankar Lal Tiberwal - Court Judgment

SooperKanoon Citation
SubjectCivil;Tenancy
CourtOrissa High Court
Decided On
Case NumberW.A. No. 19 of 2003
Judge
Reported inAIR2005Ori159
ActsOrissa Municipal Act, 1950; Code of Civil Procedure (CPC) , 1908 - Order 39, Rules 1 and 2
AppellantMahavir Prasad Santuka and ors.
RespondentSankar Lal Tiberwal
Appellant AdvocateB.K. Mohanty, ;G.K. Nayak, ;G.C. Jena and ;M.R. Mohanty, Advs.
Respondent AdvocateA.K. Mishra, ;A.K. Mohanty, ;N. Mohanty, ;G.S. Panda and ;T. Mishra, Advs.
DispositionAppeal dismissed
Excerpt:
- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. .....thereafter preferred w.p. (c) no. 9095 of 2003. by the impugned order dated 18-11-2003 the learned single judge has dismissed the said writ petition. being aggrieved by the said order, the appellants have preferred this appeal as a letters patent appeal.3. we have perused the order dated 18-11-2003 passed by the learned single judge in w.p. (c) no. 9095 of 2003, which is impugned in the present appeal. from the said order it appears that the learned single judge after considering the case of the appellants as made out in the plaint, found that allowing the interim order of injunction in favour of the appellants would amount to allowing the prayer made in the suit, as the sole dispute in the suit, is that the defendant no. 1 is interfering with the plaintiffs.....
Judgment:

M.M. Das, J

1. This appeal has been preferred by the appellants who were petitioners in W.P. (C) No. 9095 of 2003.

2. Facts of the case reveal that the appellants as plaintiffs filed T.S. No. 541 of 2001 in the Court of the learned Civil Judge (Junior Division), Ist Court, Cuttack, praying therein for a decree for permanent injunction restraining the defendant No. 1 from interfering with the construction/reconstruction/repair work of the shop rooms standing over the disputed property. The appellants filed an application for interim injunction under Order 39, Rules 1 and 2, CPC vide Misc. Case No. 311 of 2001 before the trial Court. After hearing, the learned trial Court by order dated 29-1-2002 dismissed the said Misc. Case on the finding that the appellants were tenants and defendant No. 1 being a member of the Trust Board, is the Landlord and, as such, the Landlord cannot be restrained by an order of injunction and that the Pleader Commissioner who was deputed by the learned trial Court reported that the shop rooms were in habitable condition. The trial Court found that there is no prima facie case made out by the appellants and no irreparable injury will be caused to them if the order of injunction is withheld. The appellants being aggrieved, filed Misc. Appeal No. 32 of 2002 which was ultimately dismissed by the learned District Judge by his order dated 2-9-2002. The appellants thereafter preferred W.P. (C) No. 9095 of 2003. By the impugned order dated 18-11-2003 the learned single Judge has dismissed the said writ petition. Being aggrieved by the said order, the appellants have preferred this appeal as a Letters Patent Appeal.

3. We have perused the order dated 18-11-2003 passed by the learned single Judge in W.P. (C) No. 9095 of 2003, which is impugned in the present appeal. From the said order it appears that the learned single Judge after considering the case of the appellants as made out in the plaint, found that allowing the interim order of injunction in favour of the appellants would amount to allowing the prayer made in the suit, as the sole dispute in the suit, is that the defendant No. 1 is interfering with the plaintiffs construction/reconstruction/repair work of the shop rooms in which they are tenants. It was, therefore, rightly concluded by the learned single Judge that the trial Court was right in refusing to grant interim order of injunction on the ground that the same would amount to granting the relief claimed in the suit. It has also been taken note of, in the impugned order dated 18-11-2003 that the learned District Judge was right in holding that the defendants did not produce any document in proof of obtaining permission from the Cuttack Municipal Corporation for constructing or repairing work, which is required under the Orissa Municipal Act, 1950.

4. We, therefore, find no infirmity or perversity in the order impugned in this appeal. The appeal is accordingly dismissed.


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