The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.425 of 2025 Ajijul Ali Khan and others Petitioners Mr. A.P. Bose, Advocate …. Order No. 01. -Versus- Kamrul Ali Khan and another …. Opposite Parties Mr. D.P. Mohanty, Advocate
Legal Reasoning
CORAM: MR. JUSTICE R.K. PATTANAIK
Decision
ORDER 27.03.2025 1. Heard Mr. Bose, learned counsel for the petitioners and Mr. Mohanty, learned counsel for the opposite parties. 2. Instant petition is filed by the petitioners challenging the impugned order dated 5th March, 2025 passed in connection with FAO No.47 of 2024 by learned Additional District Judge, Balasore arising out of IA No.82 of 2024 corresponding to CS No.323/438 of 2024-I of the file of learned Senior Civil Judge, Balasore on the grounds stated therein. 3. Mr. Bose, learned counsel for the petitioners would submit that IA No.82 of 2024 was filed by the petitioners and the same was disposed of by the order dated 20th April, 2024 with a direction for both the parties to maintain status quo in respect of the schedule property till disposal of the suit dismissing the application dated 7th March, 2024 moved at the behest of the opposite parties. The further submission of Mr. Bose, learned counsel is that the said order was challenged in appeal and it has been followed by the order as at Annexure-1 but with observations made therein which is to affect Page 1 of 5 the interest of the petitioners in the suit. Mr. Bose, learned counsel submits that the petitioners do not have any objection upon such remand but learned court below could not have made the observations, while disposing of FAO No.47 of 2024 and that too, without any interim orders in respect of the suit schedule property, hence, therefore, the same is liable to be interfered with and set aside to the extent as aforesaid. 4. Mr. Mohanty, learned counsel for the opposite parties, on the other hand, submits that as there has been a remand and disposal of IA No.82 of 2024, the request for injunction at the instance of the petitioners is to be freshly examined. It is further submitted by Mr. Mohanty, learned counsel that in view of the pleadings on record and relief sought for in the suit with a declaration to the effect that the decree in CS No.1882/2132 of 2021 by the court of learned Senior Civil Judge, Balasore to be illegal and not binding to the plaintiffs without having any relief with regard to the sale deeds in question, the observations by learned court below was well justified. In reply and response to the demand with an interim order of status quo, till the IA is disposed of, Mr. Mohanty, learned counsel submits that in view of the agreement and a Letter of Allotment (LoA) in favour of opposite party No.1, any such order would substantially prejudice him, hence, therefore, it was not directed. 5. The petitioners as plaintiffs filed the application under Order 39 Rule(s) 1 and 2 CPC in IA No.82 of 2024 and as earlier stated, by order dated 20th April, 2024, the court of 1st Instance directed the parties to maintain status quo in respect of the suit schedule property. The opposite parties being aggrieved by the said order preferred the appeal and it has led to the passing the impugned order i.e. Annexure-1. The order of such remand has not Page 2 of 5 been challenged by the opposite parties vis-(cid:224)-vis the permission for construction over the suit land but there was no restriction imposed either, as the order of status quo was not allowed to remain. The petitioners have challenged the same on the grounds that there was a need for an interim order, till IA No.82 of 2024 was disposed of by learned Senior Civil Judge, Balasore and also for the observations in FAO No.47 of 2024. 6. The observations of learned court below is as to the following. “10. In the humble opinion of this court, RoR neither creates title nor extinguishes title and as per the rulings of the Hon’ble court, it cannot be accepted as a proof of title and that it is the Civil Court, which is competent to adjudicate the question of title. From the perusal of the impugned order, it is revealed that the learned trial court while considering the prima facie case, has failed to take into account the value of the RSD bearing No.3055 in the name of the appellants, which was originally the separate property of the minors and that the RSD will supersede the evidentiary value of RoR in the name of Kalsun Bibi in the matter of proof of the substantial portion of the M.S. plot No.1845 being exclusively belonging to the appellants. The learned trial court has committed an error of law in holding the prima facie case existed in favour of the respondents. So far as the extent of land measuring Ac.0.47 ‰ dec. covered under M.S. plot No.1818/5545 prima facie showing the appellants as the exclusive owners they cannot be is concerned, prevented from using or enjoying their land according to their wish. thereof, Thus, it seems that balance of convenience leans in favour of the appellants. The appellants having prima facie case and balance of convenience over the suit land to the extent of Ac.0.47 ‰ dec. covered under M.S. plot No.1818/5545 are likely to suffer irreparable loss in the event of any obstruction is faced not permitting them to proceed with the proposed Page 3 of 5 commercial project over their purchased property under RSD No.3055.” 7. Upon a reading of the above and considering the facts pleaded on record and submissions of learned counsel for the respective parties, the Court is of the view that the learned court below while considering the legality of the impugned order in IA No.82 of 2024 was required to delve in detail but without any such observations as it is likely to affect the petitioners, in particular leaving it open for a decision at the time of disposal of the suit. When there has been a relief of declaring a decree in a prior suit as invalid and challenging the record of rights prepared thereafter besides permanent injunction, the Court is of the humble view that learned court below should have avoided from any such observations made. In other words, the observations could have been avoided, as it was unwarranted, while dealing with and disposal of IA No.82 of 2024. The Court is of the conclusion that such remand by the impugned order i.e. Annexure-1 for a fresh decision by learned Senior Civil Judge, Balasore should be without being influenced by the observations, as above, as it may have a bearing in the suit. 8. In so far as the interim order of status quo as demanded by the petitioners vis-(cid:224)-vis the suit schedule property and in view of the (LoA) in favour of opposite party No.1 with the claim that such construction is necessary but without the impugned order i.e. Annexure-1 to the aforesaid extent having not been challenged but still no restriction imposed, the Court is of the view that till such time, there is a decision upon such remand by learned Senior Civil Judge, Balasore, an interim arrangement has to be made. The Court is also of the that a direction is required to be issued to ensure disposal of IA No.82 of 2024 as early possible and within a Page 4 of 5 stipulated period with an order of status quo in respect of the suit schedule property as any such construction is likely to defeat the interest of the petitioners at the end. Accordingly, it is ordered. 9. In the result, the CMP stands disposed of with a direction to learned Senior Civil Judge, Balasore to hear and dispose of IA No.82 of 2024 in the light of directions issued by learned 1st Additional District Judge, Balasore in FAO No.47 of 2024 at the earliest preferably within three weeks from today and till such time, the parties are to maintain status quo in respect of the suit schedule property. It is made clear that in case such disposal if not achieved within the above stipulated period, the opposite parties shall have liberty to renew the prayer for continuing the construction over the same in view of the LoA in favour of opposite party No.1 by considering the plea that any such construction by them shall be without claiming any equity in future. It is further made clear that the learned court below shall consider the interim relief of the opposite parties without being influenced by the observations made in FAO No.47 of 2024 and furthermore, if, in case, any such application seeking construction without claiming equity is moved by the opposite parties, it shall be independently examined by the learned court below with a decision on merit and according to law. In the circumstances, however, there is no order as to costs. 10. 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: 28-Mar-2025 11:11:21 Page 5 of 5