The High Court · 2025
Case Details
Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 10-Dec-2025 11:09:39 IN THE HIGH COURT OF ORISSA AT CUTTACK C.M.P. No.229 of 2025 (In the matter of an application under Article 227 of the Constitution of India) Hrushikesh Rout …. -versus- Petitioner Gagan Bihari Singh …. Opposite Party Advocate(s) appeared in this case:- For Petitioner : Mr. B.C. Panda, Advocate For Opposite Party
Legal Reasoning
: Mr. R.K. Mohapatra, Advocate CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 5th December 2025 B.P. Routray, J. 1. Heard Mr. B.C. Panda, learned Advocate for the Petitioner and Mr. A.K. Sarangi, learned Advocate for the Opposite Party. 2. Present C.M.P. is directed against order dated 25.01.2025 of the learned Additional District Judge, Kendrapara passed in F.A.O. No.44 of 2019, wherein the interim order of temporary injunction against the Defendant as passed by the learned trial court was set aside. C.M.P. No.229 of 2025 Page 1 of 7 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 10-Dec-2025 11:09:39 3. Present Petitioner being the Plaintiff filed the suit with a prayer to declare the deed of partition dated 21.04.1999 as inoperative in respect of the suit land on the ground of fraud, as well as to set aside the sale deed made in favour of Defendant No.1. 4. The admitted fact remains that the Plaintiff and Defendant No.2 belong to same family and Defendant No.1 purchased the suit land from Defendant No.2 on the basis of the registered partition deed dated 21.04.1999 and the sale deeds have been executed in favour of Defendant No.1 on 19.02.2010 and 02.02.2011. According to Defendant No.1, he by virtue of the registered sale deeds acquired possession of the suit land and mutated the same in his favour from the competent authority. Nonetheless, such transfer of suit land in favour of Defendant No.1 vide aforesaid sales by Defendant No.2 being challenged before the Collector, Kendrapara and the Collector vide order dated 20.03.2013 declared such sale as void for violation of Sectio 34 of the Odisha Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (“OCH & PFL Act”). The order of the Collector, Kendrapara dated 20.03.2013 was subsequently challenged by Defendant No.1 in W.P.(C) No.23477 of 2013 and pending decision of said writ petition, the order of the Collector dated C.M.P. No.229 of 2025 Page 2 of 7 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 10-Dec-2025 11:09:39
Decision
20.03.2013 remain stayed. Ultimately, the writ petition was dismissed for default on 04.11.2024. But in the meantime, the Amendment to the OCH & PFL Act was effected w.e.f. 29.12.2023 nullifying the effect of prohibition of transfer of Chaka-land in terms of Section 34 retrospectively, where the possession of the land has not been returned. The copy of the order passed in the writ petition is produced by Mr. R.K. Mohapatra, learned counsel for the Opposite Party for reference. 5. Such development of facts regarding amendment of the OCH & PFL Act and the order of stay passed by this Court in the writ petition was not stated in the plaint and also not brought to the knowledge of the court by Defendant No.1 in his objection to the I.A. filed under Order 39 Rule 1 & 2 of the C.P.C. Thus, the learned trial court in order dated 06.05.2017 gave certain findings with regard to possession of the parties in respect of the suit land ignorant with such development of facts. Of course, the cancellation of registered partition deed as prayed by the Plaintiff in the suit is a separate matter to be decided on merit irrespective of possession of the parties over the suit land. Since the question of validity of the sale deed executed in favour of Defendant No.1 has also been raised by the Plaintiff to seek such relief against Defendant No.1, keeping in view his contentions about paying the rent C.M.P. No.229 of 2025 Page 3 of 7 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 10-Dec-2025 11:09:39 of the suit land vide the rent receipts produced by him, it would be inappropriate to opine at this stage that the Plaintiff does not satisfy the prima facie case in his favour in the pending suit to maintain the prayer for temporary injunction. 6. It is true that a prima facie alone would not entitle the Plaintiff to get the order of interim injunction, but at the same time the balance of convenience and irreparable loss are also to be in favour of the Plaintiff. In Dalpat Kumar v. Prahlad Singh, (1992) 1 SCC 719, the Hon’ble Supreme Court have held as follows:- “5. Therefore, the burden is on the plaintiff by evidence aliunde by affidavit or otherwise that there is “a prima facie case” in his favour which needs adjudication at the trial. The existence of the prima facie right and infraction of the enjoyment of his property or the right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established, on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference by the Court would result in “irreparable injury” to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that C.M.P. No.229 of 2025 Page 4 of 7 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 10-Dec-2025 11:09:39 the injury must be a material one, namely one that cannot be adequately compensated by way of damages. The third condition also is that “the balance of convenience” must be in favour of granting injunction. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject matter should be maintained in status quo, an injunction would be issued. Thus the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit.” 7. Further, in order to satisfy the three-fold test, it is required on the part of the Plaintiff to justify that balance of convenience lies in his favour and in the event the temporary injunction is refused, he will sustain irreparable loss. It is stated by the Honb’ble Supreme Court in State of Kerala v. Union of India, (2024) 7 SCC 183 as follows:- “12.The globally acknowledged golden principles, collectively known as “the triple-test”, are followed by the courts across the jurisdictions as the prerequisites before a party can be mandatorily injuncted to do or to refrain from doing a particular thing. These three cardinal factors, that are deeply embedded in the Indian jurisprudence as well, are: C.M.P. No.229 of 2025 Page 5 of 7 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 10-Dec-2025 11:09:39 12.1. A “prima facie case”, which necessitates that as per the material placed on record, the plaintiff is likely to succeed in the final determination of the case; 12.2. “Balance of convenience”, such that the prejudice likely to be caused to the plaintiff due to rejection of the interim relief will be higher than the inconvenience that the defendant may face if the relief is so granted; and 12.3. “Irreparable injury”, which means that if the relief is not granted, the plaintiff will face an irreversible injury that cannot be compensated in monetary terms. xx .. xx xx .. 16. Coming to the first factor i.e. the prima facie case, the plaintiff State has raised various substantive questions of constitutional interpretation. Generally speaking, the phrase “prima facie case” is not a term of art and it simply signifies that at first sight the plaintiff has a strong case. According to Webster’s International Dictionary, “prima facie case” means a case established by “prima facie evidence”, which in turn means the evidence that is sufficient in law to raise a presumption of fact unless rebutted. 8. Admittedly, in the facts of the given case at hand, the nature of suit land is an agricultural land. When the Plaintiff claims possession over it by virtue of the status of the land that it belongs to the joint family, Defendant No.1 claims possession over the same on the basis of the sale deeds made in his favour and the mutation of RoR in his favour. It is true that there is no material produced before the court regarding return of delivery of possession in favour of this Plaintiff or C.M.P. No.229 of 2025 Page 6 of 7 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 10-Dec-2025 11:09:39 his brother (Defendant No.2) by virtue of the order of cancellation passed by the Collector, Kendrapara dated 20.03.2013. In such premises, when the sale deed is in favour of Defendant No.1 and he has mutated the RoR in his support, the possession of the suit land in favour of Defendant No.1 is found more fortified than the claim of the Plaintiff with regard to possession of the same by virtue of the rent receipts alone. Thus, when the possession is not found in favour of the Plaintiff but is seen prima facie in favour of Defendant No.1, the balance of convenience lies in his favour. At the same time, the loss, if any, is not seen in favour of the Plaintiff in the event the prayer for temporary injunction is refused. 9. Accordingly, no infirmity is seen in the order of the learned first appellate court in setting aside the order of learned trial court dated 06.05.2017 under Annexure-5. 10. In the result, the C.M.P. is dismissed. (B.P. Routray) Judge B.K. Barik/Secretary C.M.P. No.229 of 2025 Page 7 of 7