The High Court
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IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 735 of 2024 & CMP No. 736 of 2024 [Applications under Article 227 of the Constitution of India] AFR CMP No. 735 of 2024 Rabindra Panigrahi …. Petitioner -Versus- Gouranga Panigrahi & others ….. Opp. Parties CMP No. 736 of 2024 Samira Panigrahi & another …. Petitioners -Versus- Gouranga Panigrahi & others ….. Opp. Parties Advocate(s) appeared in this case: For Petitioner(s) : M/s. J.R. Deo, A.K. Das & A. Moharana & A.P. Bose, Advocates. For Opp.Parties : M/s. S.S. Chaini & S.K. Sahoo, Advocates _________________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 12th December, 2025 Page 1 of 13 SASHIKANTA MISHRA, J. Though both the applications filed under Article 227 of the Constitution of India are individually directed against two separate orders passed in connection with the same civil suit, yet the facts involved in both being intricately connected, both were heard together and are
Decision
being disposed of by this common judgment. 2. The petitioner in CMP No.735 of 2024 is defendant No.2 in C.S. Case No.19 of 2022 pending in the Court of learned Civil Judge (Senior Division), Basudevpur. He is also petitioner No.2 in CMP No.736 of 2024, while petitioner No.1 thereof is defendant No.1 in the aforementioned suit. The present opposite parties are the plaintiffs in the said suit. 3. The suit is one filed by the plaintiffs for partition of the scheduled properties claiming that the same are the ancestral properties. The plaintiffs filed an application Page 2 of 13 being I.A. No.25 of 2023 in the said suit under Order XXXIX, Rules 1 and 2 of CPC, read with section 151 of CPC for temporary injunction against the defendants. The defendants filed their objection. By order dated 15.05.2023, the Trial Court finding no merit in the application, rejected the same. The plaintiffs thereafter filed another application being I.A. No. 51 of 2023 with prayer to restrict the defendants from constructing any house over the suit land till disposal of the suit. The defendants filed objection. By order dated 03.07.2023, the Trial Court allowed the application by directing both parties to maintain status quo. 4. Being aggrieved, the defendants carried appeal to the District Judge being FAO No.61 of 2023. By order dated 20.02.2024, the appeal was dismissed. Said order is impugned in CMP No. 735 of 2024. 5. After dismissal of the appeal by the District Judge, the defendants filed an application in the Trial Court being CMA No.21 of 2024 seeking permission to complete Page 3 of 13 their half-constructed house. The plaintiffs filed objection. By order dated 25.04.2024, the Trial Court rejected the application, against which CMP No. 736 of 2024 has been filed. 2. For the sake of convenience, the parties are referred to as per their respective status in the trial Court. 6. Heard Mr. A.P. Bose, learned counsel for the defendants and Mr. S.S. Chaini, learned counsel for the plaintiffs. 7. Mr. Bose would argue that a second application for injunction could not have been entertained after dismissal of the first application by the Trial Court. Further, the Trial Court having found that the three ingredients for passing an order of injunction being absent, could not have passed an order directing both parties to maintain status quo. He further submits that the defendants having constructed their house in part shall be put to immense difficulties if they are not allowed to complete the construction. Mr. Bose Page 4 of 13 has relied upon several judgments in support of his contentions. 8. Per contra, Mr. Chaini would argue that the first application having been rejected on technical grounds but not on merits, the second application was maintainable particularly as there was change in circumstances. He further argues that in a suit for partition every co-sharer has a right over every inch of joint property until the same is partitioned by metes and bounds. The principle of res judicata does not apply to interlocutory applications. Though the Trial Court refused to grant injunction but passed the impugned order with the intent of preserving the property as it is till disposal of the suit as otherwise it would cause prejudice to the parties. Having once passed an order of status quo, the Trial Court rightly rejected the application filed by the defendants seeking permission to complete the so-called half-constructed house as it would alter the nature of the property and thereby defeat the very purpose of the partition suit. Page 5 of 13 9. After hearing learned counsel for the parties, this Court finds that the first point for consideration is the correctness of the order dated 03.07.2023 passed by the Trial Court directing both parties to maintain status quo, which was confirmed by the learned District Judge in appeal by order dated 20.02.2024. It has been argued that such order could not have been passed on an application filed by the plaintiffs subsequent to rejection of identical prayer made in a previous application. As already stated, the first application for injunction being I.A. No. 25 of 2023 was rejected by order dated 15.05.2023. Reading of the said order reveals that the Trial Court was not convinced on the facts placed before it that the necessary ingredients for grant of injunction were in existence. In particular, the Trial Court noted that there was lack of specific pleadings and averments as regards the particular plot on which the defendants were attempting to make construction. There was also absence of pleadings with regard to date of arising of the cause of action. The Trial Court also weighed the comparative mischief likely to be caused by granting an Page 6 of 13 order of injunction and refusing it. As such, the application was rejected. It cannot be said that the application was rejected on technical grounds. Be that as it may, the second application was filed being I.A. No.51 of 2023 by the plaintiffs stating that after dismissal of the earlier application the defendants were making preparation to construct a house over the suit land for which they approached the Sub-Divisional Magistrate, Bhadrak to initiate a proceeding under Section 144 of Cr.P.C. in view of the summer holidays of the Court. In fact, the learned SDM also directed both parties to maintain status quo. When the said order was in operation, the defendant allegedly gathered house building materials and started digging earth for construction of the new house. Whether the allegations are correct or not is a different matter, but it can certainly be said that if true, it was a different cause of action that had arisen after disposal of the earlier application. Page 7 of 13 10. In the case of Arjun Singh v. Mohindra Kumar1, the Supreme Court held that rejection of an interim application does not bar a subsequent application based on new facts. “14. It is needless to point out that interlocutory orders are of various kinds; some like orders of stay, injunction or receiver are designed to preserve the status quo pending the litigation and to ensure that the parties might not be prejudiced by the normal delay which the proceedings before the court, usually take. They do not, in that sense, decide in any manner the merits of the controversy in issue in the suit and do not, of course, put an end to it even in part. Such orders are certainly capable of being altered or varied by subsequent applications for the same relief, though normally only on proof of new facts or new situation which subsequently emerge. As they do not impinge upon the legal rights of parties to the litigation the principle of res judicata does not apply to the findings on which these orders are based, though if applications were made for relief on the same basis after the same has once been disposed of the court would be Justified in rejecting the same as an abuse of the process of court. There are other orders which are also interlocutory but would fall into a different category. The difference from the ones just now referred to lies in the fact that they are not directed to maintaining the statusquo, or to preserve the property pending the final adjudication but are designed to ensure just, smooth, orderly and expeditious disposal of the suit. They are interlocutory in the sense that they do not decide any matter in issue arising in the suit, nor put an end to the litigation. The case of an application under 0. IX, Rule 7 would be an illustration of this type. If an application made under the provisions of that rule is dismissed and an appeal were filed against the decree in the suit in which such application were made, there can be no doubt that the propriety of the 1 1963 SCC OnLine SC 43 : (1964) 5 SCR 946 : AIR 1964 SC 993 Page 8 of 13 the order rejecting the reopening of the proceeding and the refusal to relegate the party to an earlier stage might be canvassed in the appeal and dealt with by the appellate court. In that sense, the refusal of the court to permit the defendant to “set the clock back” does not attain finality. But what we are concerned with is slightly different and that is whether the same Court is finally bound by that order at later stages so as to preclude its being reconsidered. Even if the rule of res judicata does not apply it would not follow that on every subsequent day which the suit stands adjourned for further hearing, the petition could be repeated and fresh orders sought on the basis of identical facts. The principle that repeated applications based on the same facts and seeking the same reliefs might be disallowed by the court does not however necessarily rest on the principle of res judicata. Thus, if an application for the adjournment of a suit is rejected, a subsequent application for the same purpose even if based on the same facts, is not barred on the application of any rule of res judicata, but would be rejected for the same grounds on which the original application was refused. The principle underlying the distinction between the rule of res judicata and a rejection on the ground that no new facts have been adduced to justify a different order is vital. If the principle of res judicata is applicable to the decision on a particular issue of fact, even if fresh facts were placed before the Court, the bar would continue to operate and preclude a fresh investigation of the issue, whereas in the Other case, on proof of fresh facts, the court would be competent, nay would be bound to take those into account and make an order conformably to the facts freshly brought before the court.” This Court is therefore, unable to accept the argument that the second application was not maintainable. 11. Coming to the next ground raised, that is, legality of passing an order of status quo in the absence of the Page 9 of 13 necessary ingredients for grant of injunction, it has been argued that the Trial Court found that the necessary ingredients are absent and recorded such fact in its order. Having noted so, it could not have directed both parties to pass an order of status quo. The District Judge also confirmed the order of the Trial Court. Mr. Bose, learned counsel for the defendants has relied upon the following judgments of the Supreme Court to buttress his contention as above. 1. Best Sellers Retail (India) (P) Ltd. v. Aditya Birla Nuvo Ltd.2 2. Kishorsinh Ratansinh Jadeja v. Maruti Corpn.3 3. Dalpat Kumar v. Prahlad Singh4, Learned counsel for the plaintiffs however, has argued that the order was passed with the intent of preserving and protecting the suit property during pendency of the suit.