The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Nov-2023 17:09:46 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO.927 OF 2023 Udayanath Rout Jugal Rout …. Petitioner Ms. Samapika Mishra, Advocate -versus- …. Opp. Party Mr. Amitav Tripathy, Advocate Order No. 07. 1. 2. CORAM:
Decision
JUSTICE K.R. MOHAPATRA ORDER 23.11.2023 This matter is taken up through hybrid mode. Order dated 14th August, 2023 (Annexure-5) passed by learned District Judge, Nayagarh in FAO No.11 of 2023 is under challenge in this CMP, whereby setting aside the order dated 18th April, 2023 (Annexure-4) passed by learned Additional Civil Judge (Junior Division), Khandapada in IA No.04 of 2023 (arising out of Civil Suit No.22 of 2023), has been set aside. 3. It is submitted by Ms. Mishra, learned counsel for the Petitioner that the suit has been filed for permanent injunction. It is the case of the Plaintiff-Petitioner that he has left 5 Ft. vacant land to the west of his house for maintenance of the building and drainage of rain water. But the Defendant, encroaching upon the same, has started construction of his house encroaching upon the said 5 Ft. land set out by the Petitioner. Hence, the suit for permanent injunction has been filed. Along with the plaint, the Petitioner has also filed an application under Order XXXIX Rules 1 and 2 CPC (I.A. No.04 of 2023) with a prayer to restrain the Page 1 of 6 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Nov-2023 17:09:46 // 2 // Defendant-Opposite Party from making any construction or causing any disturbance over the suit land. Learned trial Court, taking into consideration of the rival cases of the parties, directed them to maintain status-quo over the IA schedule property by order under Annexure-4 with a further direction not to raise any structure over the suit land and change its nature and character in any manner. The parties were also directed not to create any disturbance over the IA schedule land. Assailing the same, the Opposite Party preferred FAO No.11 of 2023 and order under Annexure-5 has been passed. 4. It is submitted by Ms. Mishra, learned counsel for the Petitioner that during pendency of the suit, the status of the lis should be maintained. If the Opposite Party-Defendant is allowed to make construction of his residential house, encroaching upon 5 ft. vacant land set out by the Petitioner to its western side, then the Petitioner will suffer irreparable loss. The balance of convenience also leads in favour of the Petitioner as he has already constructed his residential house by leaving 5 ft. of land of its western side, which is being encroached upon by the Defendant. She also relied upon the decision in the case of Mahadeo Savlaram Shelke and others vrs. Pune Minicipal Corporation and another reported in (1995) 3 Supreme Court Cases 33, in which relying upon the most celebrated case of Dalpat Kumar, Hon’ble Supreme Court at Paragraph-8 held as under: “8. In Dalpat Kumar v. Prahlad Singh³ a Bench of two Judges (in which K. Ramaswamy, J. was a member) of this Court held that the phrases "prima facie case", "balance of convenience" and "irreparable loss" are not rhetoric phrases for incantation but words of width and elasticity, intended to meet myriad situations presented by men’s ingenuity in given facts and circumstances and should always be hedged with sound exercise of judicial discretion Page 2 of 6 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Nov-2023 17:09:46 // 3 // to meet the ends of justice. The court would be circumspect before granting the injunction and look to the conduct of the party, the probable injury to either party and whether the plaintiff could be adequately compensated if injunction is refused. The Court further held: (SCC p. 721, para 5) “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 g 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 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." 5. Learned appellate Court, ignoring the settled position of law, erroneously held that grant of order of injunction will amount to granting the final relief in the case. 6. It is also held that the Petitioner (Plaintiff) and his brother (not the Defendant) have raised construction over their share and are objecting to the construction of the Opposite Party. Hence, he set aside the impugned order stating that the balance of convenience and irreparable loss cannot be stated to be in favour of the Plaintiff- Page 3 of 6 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Nov-2023 17:09:46 // 4 // Petitioner. It is her submission that by the time, order of status-quo was passed by this Court, the construction of the house of the Opposite Party was up to plinth level. She also drew attention of this Court to two photographs annexed to the CMP and submits that the construction of the house of the Opposite Party is at a primary stage and he should be restrained from making any further construction preventing light and air to the residential house of the Petitioner. She, therefore, prays for setting aside the impugned order. 7. Mr. Tripathy, learned counsel for the Opposite Party submits that there was a settlement between the Petitioner and his brother, namely, Debaraj Rout and accordingly, they have already constructed their residential house thereon. The Opposite Party does not have his residential house. When he started construction over his vacant land, the Plaintiff-Petitioner created disturbance. It is his submission that the Plaintiff has not left an inch towards his western side while making construction. Neither any rain water pipe has been fixed at the western side of the house nor any Chajja over the windows of the house of the Opposite Party has been made to the western side of the house of the Petitioner, which prima facie shows that not an inch of the land has been left by the Petitioner to its western side. It is his submission that by the time, the Petitioner received status-quo order, he had constructed up to lintel level. Although, arrangement was being made to cast of the roof, but due to the order of status-quo, the same could not be done. It is at this stage, if the Opposite party is restrained from completing the construction, it will enure to the benefit of none. On the other hand, the Opposite Party will suffer irreparable loss as he would be Page 4 of 6 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Nov-2023 17:09:46 // 5 // homeless. He further submitted that the Opposite Party has not encroached any portion of the land of the Petitioner. The construction is being made within the land fell to the share of the Defendant-Opposite Party. He also submits that he has no objection, if an Amin Commissioner is deputed to measure the land in possession of the respective parties. 8. He, however, submits that the Opposite Party does not have his residential house and investing all his resources, he is trying to complete the construction. Due to pendency of the suit, he is seriously prejudiced. He, therefore, submits that if the Opposite Party is allowed to complete the construction, he will not claim any equity over the same. 9. In course of hearing, Ms. Mishra, learned counsel for the Petitioner submits that although the Opposite Party had made construction upto the plinth level by the time of order of status-quo was made, but at present it is made up to roof level. 10. In view of the above, when learned counsel for the parties submit that at present, construction of the house by the Opposite Party has been made up to roof level, this Court feels that restraining the Opposite Party from completing construction of the residential house will enure to the benefit of none. He also relied upon the decision in the case of Padmini Sekhar Deo and others vrs. Pankajini Thakur and another, reported in 88 (1999), CLT, 297, in which it is held that if the construction is made up to roof level, restraining a party to make further construction will enure to the benefit of none. Hence, the parties should be allowed to complete the construction without claiming any equity thereon. Page 5 of 6 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Nov-2023 17:09:46 // 6 // 11. In that view of the matter, this Court without interfering with the impugned order under Annexure-5, disposes of the CMP with an observation that the Opposite Party shall not claim any equity on the construction of his residential house. If it is found that the Opposite Party has encroached upon the land of the Petitioner, he will demolish the encroached portion of his house at his own cost. If he does not do so, the same shall be undertaken by the Petitioner and the cost of such demolition shall be recovered from the Opposite Party following due procedure of law. It is also directed that while making construction, if any, the Opposite Party shall not damage any portion of the house of the Petitioner. 12. With the aforesaid observation and direction, this CMP is disposed of. 13. Interim order dated 21st August, 2023 passed in IA No.907 of 2023 stands vacated. Issue urgent certified copy of this order on proper application. Rojalin (K.R. Mohapatra) Judge Page 6 of 6