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: 14-Oct-2025 13:48:24 IN THE HIGH COURT OF ORISSA AT CUTTACK C.M.P. No.937 of 2025 (In the matter of an application under Article 227 of the Constitution of India) Sulochana Sahoo …. -versus- Petitioner Raghunath Sahoo and another …. Opposite Parties Advocate(s) appeared in this case:- For Petitioner
Legal Reasoning
lacks prima facie case in her favour. 5. Copies of the plaint and WS filed by Defendants 1 & 2 are produced by Ms. S. Mohanty, learned counsel for the Opposite Parties for perusal of this Court. It is seen therefrom that the preliminary decree dated 12.01.1977 passed in O.S. No.18 of 1971 has been clearly pleaded to counter the case of the Plaintiff in respect of her prayer for partition. But at the same time, it remains admitted by the parties that the RoR in respect of Khata No.194 of mouza-Jagamara stands recorded jointly in the name of the sons of Jogi Sahoo, the common ancestor. Khata No.194 consists of several plots which implies that the Plaintiff being the successor of Gangadhar having her share in said plots prima facie, baring other properties of Jogi Sahoo. Therefore, the finding of both the courts that the Plaintiff did not have a prima facie case appears to be a prima facie error on record. C.M.P. No.937 of 2025 Page 3 of 6 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 14-Oct-2025 13:48:24 6. For entertaining the prayer of temporary injunction pending the lis in terms of the provisions of Order 39 Rule 1 & 2, C.P.C., the three essential things, i.e. prima facie case, balance of convenience and irreparable loss are to be looked into essentially. Prima facie case means, an arguable case made out on record in favour of the party seeking the relief. It is explained in State of Kerala v. Union of India, (2024) 7 SCC 183, that; “16. xx .. xx .. xx .. 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.” 7. 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 C.M.P. No.937 of 2025 Page 4 of 6 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 14-Oct-2025 13:48:24 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 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.” 8. In the case at hand, when the record of right admittedly stands jointly in the name of three sons of Jogi Sahoo and it is admitted that the Plaintiff is the successor of one of the sons of Jogi Sahoo, such observation made by the learned trial court as well as the appellate court that there is no prima facie case in favour of the Plaintiff is not found sustainable on the face of record. Therefore, taking note of the C.M.P. No.937 of 2025 Page 5 of 6 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 14-Oct-2025 13:48:24 pleadings in the plaint as well as the counter averments made in the written statement, where the question of partition and passing of earlier preliminary decree in O.S. No.18 of 1971 remains admitted, it would be better in the interest of justice that the first appellate court should reconsider the appeal afresh. It is to be mentioned here that both the courts have stated that since there was no prima facie case, no discussion is required on the balance of convenience and irreparable loss. This is an error committed by both the courts. 9. Thus, in the result, the C.M.P. is allowed in-part and the impugned order of the first appellate court dated 06.03.2025 (Annexure-4) is set aside. The matter is remitted back to the first appellate court to decide F.A.O. No.174 of 2024 afresh in accordance with law, preferably within a period of six months from the date of receipt of certified copy of this order without being influenced by any such observation made by this Court in the present C.M.P. (B.P. Routray) Judge B.K. Barik/Secretary C.M.P. No.937 of 2025 Page 6 of 6
Arguments
: Mr. B. Tripathy, Advocate For Opposite Parties : Ms. S. Mohanty, Advocate For O.P. Nos.1 & 2 CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 13th October 2025 B.P. Routray, J. 1. Heard Mr. B. Tripathy, learned Advocate for the Petitioner and Ms. S. Mohanty, learned Advocate for Opposite Parties 1 & 2. 2. Present C.M.P. is directed against the order dated 21.11.2024 of the learned trial court which was confirmed vide order dated 06.03.2025 of the first appellate court in F.A.O. No.174 of 2024. 3. Present Petitioner is the Plaintiff, who filed C.S. No.872 of 2021 praying for partition, declaration, permanent injunction and other C.M.P. No.937 of 2025 Page 1 of 6 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 14-Oct-2025 13:48:24 consequential reliefs. The case of the Plaintiff is that, the suit schedule land belonging to their common ancestor, Jogi Sahoo, which was not partitioned except the amicable partition took place in the year 1965 between the sons of Jogi Sahoo. Late Jogi Sahoo had three sons, namely, Gangadhar Sahoo, Chakradhar Sahoo, Damodar Sahoo and the present Plaintiff claims to be the daughter of Gangadhar Sahoo. However, the Defendants after their appearance filed the written statement disclosing about earlier suit filed by Damodar and others in O.S. No.18 of 1971(I), wherein preliminary decree was passed on 12.01.1977 on contest. It is admitted by all the parties that said preliminary decree dated 12.01.1977 passed in O.S. No.18 of 1971(I) has not yet been made final and no such final decree proceeding has been initiated by any of the parties till date. 4. The Plaintiff filed I.A. No.01 of 2021 praying for temporary injunction under Order 39 Rule 1 & 2, C.P.C. to restrain Defendants 1 & 2 from coming over the suit land. In the opinion of the learned trial court vide its order dated 21.11.2024 (Annexure-1), the Plaintiff is unable to disclose a prima facie case in her favour as she suppressed about the earlier decree passed in O.S. No.18 of 1971. The first appellate court in his judgment dated 06.03.2025 has confirmed the C.M.P. No.937 of 2025 Page 2 of 6 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 14-Oct-2025 13:48:24 order of the learned trial court regarding absence of prima facie case in favour of the Plaintiff and in this regard the first appellate court has held that in absence of any sort of documents filed by the Plaintiff to substantiate her case and since the properties have been partitioned including the suit property that fell into the share of the Plaintiff, she