The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.383 of 2025 Smt. Radhamani Panda and another Petitioners Mr. A.P. Bose, Advocate …. Order No. 01. -Versus- Truptirani Mishra and others …. Opposite Parties None
Legal Reasoning
CORAM: MR. JUSTICE R.K. PATTANAIK
Decision
ORDER 30.04.2025 1. Heard Mr. Bose, learned counsel for the petitioners. 2. No notices are issued to the opposite parties as the matter is disposed of at the stage of admission. 3. Instant petition is filed by the petitioners assailing the correctness of the impugned order dated 11th February, 2025 passed in CMA No.148 of 2024 as at Annexure-1 arising out of CS No.906 of 2014 corresponding to IA No.08 of 2020 by learned 2nd Additional Civil Judge (Senior Division), Puri on the grounds stated therein. 4. Mr. Bose, learned counsel for the petitioners submits that learned court below, while disposing of IA No.08 of 2020 arising of the suit, restrained the opposite parties over and in respect of the suit schedule property as per Annexure-2. The further submission is that despite such an order preventing the opposite parties even from raising construction or creating third party interest over the Page 1 of 4 same, it has been violated as against which an application Section 151 CPC i.e. Annexure-3 was filed seeking implementation of the same with the assistance of the local police but has not been allowed leading to the passing of the impugned order under Annexure-1. The order of injunction i.e. Annexure-2 has not been challenged by the opposite parties and it has attained finality and under such circumstances and as the opposite parties started construction over the suit schedule property, it is further submitted that such an application under Section 151 CPC was pressed into service but it has not been entertained on the premise that statutory remedy in terms of Order 39 Rule 2A CPC may be availed, hence, the power under Section 151 CPC is not to be invoked. In course of hearing, Mr. Bose, learned counsel for the petitioners refers to a decision of this Court in Gokula Naik Vrs. Pitambar Naik and others 2022 (II) CLR 1229 to contend that even with the availability of a remedy as per Order 39 Rule 2A CPC, inherent power could have been exercised by the court below. 5. Learned court below has placed reliance on the following decisions, namely, Subal Kumar Dey Vrs. Purna Chandra Giri and others 1989 (I) OLR 398 while denying such implementation of the order of injunction with the assistance of the local police. In the aforesaid decision referring to the decisions in Rayapati Audemma Vrs. Pothineni Narasimham AIR 1971 AP 13 and Sunil Kumur Halder and other Vrs. Nishikanta Bhandari and others AIR 1983 Calcutta 266, it is concluded by this Court that implementation of the order of temporary injunction in exercise of powers under Section 151 CPC may be exercised. It is has however been observed therein that the Court is to be careful before taking external help of police for implementation of the order. In Gokula Naik (supra), this Court had the occasion to consider whether inherent power under Section 151 Page 2 of 4 CPC should be exercised when statutory remedy under Order 39 Rule 2A CPC is available to a party. It has been held therein that a remedy under Order 39 Rule 2A CPC, if found to be not sufficient to mitigate the loss suffered by a party due to violation of order of injunction, the Court has the power to invoke Section 151 CPC. It is settled law that in case of violation of an interim order, the Court may be moved seeking action in terms of Order 39 Rule 2A CPC. However, at the same time, the law is also to the effect that there cannot be any absolute bar for a direction to implement an order with the assistance of the local police even when statutory remedy under Order 39 Rule 2A CPC is available. In fact, such is the view of this Court in Gokula Naik (supra). If an order of injunction is passed by the parties are directed to be maintained status quo and any one of them violates the same, action under Order 39 Rule 2A CPC may be initiated, whereas, as held in Rayapati Audemma (supra), the loss suffered by the party due to such violation, if not able to be properly addressed, notwithstanding any such remedy under Order 39 Rule 2A CPC, the Court shall have the powers to invoke Section 151 CPC to prevent such mischief. 6. In the instant case, on a reading of the application under Section 151 CPC as at Annexure-3, it is made to understand that the opposite parties had either contemplated or have taken up forceful construction over the suit schedule property which was brought to the notice of the learned court below. It has been held that the petitioners failed to convince to demonstrate the alleged construction by the opposite parties. On a reading of the pleading on record and Annexure-3, the Court finds that upon such violation of the order of injunction as at Annexure-2, the petitioners knocked the doors of the Court for orders under Section 151 CPC. When such an order has not been challenged by any of the opposite parties and Page 3 of 4 as earlier stated, the same attained finality and upon receiving a complaint from the petitioners regarding the alleged construction, the Court is of the view that the learned court below, after taking cognizance of the same, should have entertained the plea under Section 151 CPC for orders. The Court reiterates the law and settled legal position that irrespective of any such action under Order 39 Rule 2A CPC, the Court has the powers dealing with such situation exercising inherent power under Section 151 CPC, which in the case hand, learned court below failed to do, hence, therefore, the impugned order as at Annexure-1 in CMA No.148 of 2024 is liable to be interfered in the interest of justice. 7. 8. Accordingly, it is ordered. In the result, the CMP stands allowed. As a necessary corollary, the impugned order dated 11th February, 2025 in CMA No.148 of 2024 by learned 2nd Additional Civil Judge (Senior Division), Puri is hereby set aside with a direction to implement and enforce the order of injunction in IA No.08 of 2020 with the assistance of the local police. In the circumstances, however, there is no order as to costs. 9. Urgent certified copy of this order be issued as per rules. (R.K. Pattanaik) Judge TUDU Signature Not Verified Digitally Signed Signed by: THAKURDAS TUDU Reason: Authentication Location: OHC,CTC Date: 03-May-2025 11:05:21 Page 4 of 4