The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 1024 of 2022 (In the matter of an application under Article 227 of the Constitution of India, 1950) ******* Puspalata Das Petitioner Mr. Swarup Kumar Patnaik, Advocate …. -versus- Nabin Kumar Dey and another …. Opp. Parties Mr. Dwarika Prasad Mohanty, Advocate (For Caveator/Opposite Party No.1) -------------------------------------------------------------------------- Heard and Disposed of on : 27.01.2023 --------------------------------------------------------------------------- CORAM: JUSTICE KRUSHNA RAM MOHAPATRA JUDGMENT KRUSHNA RAM MOHAPATRA, J. 1. This matter is taken up through Hybrid mode. 2. Judgment dated 17th August, 2022 (Annexure-7) passed by learned 3rd Additional District Judge, Balasore in FAO No.61 of 2021 is under challenge in this CMP, whereby setting aside the order dated 11th October, 2021 (Annexure-6) passed by learned
Facts
Senior Civil Judge, Balasore in IA No.48 of 2019 (arising out of CS No.96/126 of 2019) learned appellate Court allowed the appeal filed by the Opposite Parties.
Legal Reasoning
in possession over the suit land and she has prima facie case in Page 2 of 7 // 3 // her favour, as an agreement for sale has been executed in between her and Opposite Party No.1. The correctness/veracity of such agreement along with signature of Opposite Party No.1 thereon can be adjudicated at the time of hearing of the suit, but prima facie, there is an agreement for sale between the parties. Learned appellate Court, misconstruing the fact that there is a dispute with regard to possession of the Petitioner over the suit land held that balance of convenience leans in favour of Opposite Parties and the Petitioner will not suffer any irreparable loss, if no order of injunction is passed and loss, if any, can be compensated in terms of money. Such a finding is not sustainable in the eye of law. 4. Mr. Patnaik, learned counsel for the Petitioner, in support of his case placed reliance on a decision of this Court in the case of Gangadhar Raut Vs. Bindo Bihari Nayak, reported in 1998 (I) OLR 199, wherein this Court at para-3 observed as under:- “3. In matters relating to injunction, the court is not required to give finding regarding the maintainability of the suit itself. The observation of the lower appellate court that the present suit was not maintainable by applying the principles of res judicata and Order 2, Rue 2 CPC is wholly uncalled for and there was no necessity at this stage for giving such a finding. In such matters a prima facie case is to be found out and emphasis is always on the question of possession and that too only prima facie opinion on the matter is required to be formed. Of course the courts are also required to consider about irreparable loss and balance of convenience. It is apparent that the appellate court has misdirected itself in the matter. As such, I consider it a fit case where the matter should be remanded fresh to disposal…….” lower appellate court the for Page 3 of 7 // 4 // Hence, he prays for setting aside of the impugned order. 5. Taking into consideration the contentions of the parties, this Court, vide order dated 9th December, 2022, directed the Petitioner to take instruction with regard to mode of payment of Rs.45.00 lakh to the Opposite Party No.1, as alleged by the Petitioner. In compliance of such direction, the Petitioner files an affidavit along with certain documents including the income tax return of the husband of the Petitioner for the years 2017-18, 2018-19 and 2019-20 and balance sheet of the respective years of the firm, namely, M/s Durga Enterprises. Petitioner also filed a copy of the tenancy agreement (annexure-2 to the affidavit dated 25th January, 2023) to establish that she is in possession over the suit property. 6. Mr. Mohanty, learned counsel for the Opposite Party No.1 vehemently objecting to the above contends that those documents filed along with the affidavit were never produced before learned trial as well as appellate Court. Further, IT returns and balance sheet does not disclose that a sum of Rs.45.00 lakh was made over to the Opposite Party No.1 towards part payment of the consideration money pursuant to alleged agreement for sale. The alleged rent agreement was also not produced either before learned trial Court or before learned appellate Court for consideration. The signature of Opposite Party No.1 appearing therein does not tally with the signature in the alleged agreement for sale. It appears that the rent agreement is an afterthought and has been prepared to be produced before the Court. It is further alleged that the entire averments in the plaint has been made for specific performance of contract. But Page 4 of 7 // 5 // no such prayer has been made in the plaint. Thus, learned appellate Court has committed no error in coming to conclusion that there is dispute with regard to possession of the Petitioner over the suit property. A bald statement in the alleged agreement for sale to the effect that the Petitioner is continuing as a tenant over the suit property does not ipso facto establishes that the Petitioner is in possession over the suit land. It is his submission that admittedly the Opposite Parties are recorded tenants over the suit property and loss, if any, occurred to the Petitioner can be compensated in terms of money, as his claim is completely based on an alleged rent agreement for sale. He has also placed reliance upon the decision in the case of Sasmita Nayak Vs. Dinesh Chandra Pattanaik (dead) represented by substituted legal heirs, Sri Amita Pattanaik and two others, reported in 2017 (II) OLR 412 in which, it is held that when learned Courts scrutinizing the materials on record come to definite conclusion with regard to possession, this Court in exercise of power under Article 227 of the Constitution should not interfere with the same. 7. Considering the rival contentions of learned counsel for the parties and on perusal of record, this Court finds that admittedly suit property stands recorded in the name of the Opposite Parties, but the Petitioner alleged that there is a rent agreement between her deceased husband and Opposite Party No.1 under Annexure-2 to the affidavit dated 25th January, 2023. Said rent agreement was neither produced before learned trial Court nor before learned appellate Court. The IT returns and balance sheet does not disclose that sum of Rs.45.00 lakh was ever made over Page 5 of 7 // 6 // to Opposite Parties towards part payment consideration amount pursuant to the alleged agreement for sale. Except said agreement, there is no material available on record to show that in fact the Petitioner had made over a substantial amount of Rs.45.00 lakh to Opposite Parties. This Court considering the same, vide order dated 9th December, 2022, directed the Petitioner to produce document with regard to mode of payment of Rs.45.00 lakh to Opposite Parties pursuant to the alleged agreement for sale. But, no document to that effect has been filed by the Petitioner. Prima facie, no reliance can be placed on the alleged agreement for sale to consider the application under Order XXXIX Rules 1 and 2 CPC, as the Petitioner failed to establish that either she or her husband had in fact made over a sum of Rs.45.00 lakh to Opposite Parties towards part payment of consideration. Perusal of the order passed in IA No.48 of 2019, it appears that learned trial Court was swayed away by the recitals of the agreement for sale, which is seriously disputed by the Opposite Parties. However, Mr. Patnaik, learned counsel for the Petitioner submits that Opposite Parties have not yet filed written statement in the suit. But in the objection to the IA they have raised such objection, which was not properly considered by learned trial Court. Except a bald statement in the said alleged agreement for sale that the Petitioner is a tenant in the said premises, there is nothing on record to show that the Petitioner is in possession over the suit property. The same cannot be taken into consideration at this stage, in view of the discussion made herein above. Since the Opposite Parties are admittedly the recorded tenants, balance of convenience leans in their favour. Loss, if any, to the Petitioner can be compensated Page 6 of 7 // 7 // in terms of money as the case of the Petitioner completely based upon the alleged agreement for sale. 8. Further, the case law cited by Mr. Patnaik, learned counsel in Gangadhar Raut (supra) has no application to the case of the Petitioner, as there is no material to form a prima facie opinion that the Petitioner is in possession over the suit land and an amount of Rs.45.00 lakh was, in fact, paid to the Opposite Parties towards part payment of the consideration amount. 9. In that view of the matter, this Court is of the considered opinion that learned appellate Court has committed no error in allowing the appeal by dismissing the application under Order XXXIX Rules 1 and 2 CPC. 10. Accordingly, the CMP stands dismissed for being devoid of any merit. s.s.satapathy (K.R. Mohapatra) Judge Page 7 of 7
Arguments
3. Mr. Patnaik, learned counsel for the Petitioner submits that Petitioner herein being the Plaintiff has filed the Suit bearing CS No.96/126 of 2019 for permanent injunction. When the Page 1 of 7 // 2 // Defendants/Opposite Parties made an attempt to dispossess the Petitioner forcibly and to alienate the property by creating fake deed and avoided to register sale deed in favour of the Plaintiff, the suit was filed. Along with the plaint, the Petitioner filed an application under Order XXXIX Rules 1 and 2 CPC in IA No.48 of 2019 with a prayer to restrain the Opposite Parties from dispossessing the Plaintiff-Petitioner, alienating as well as changing nature and character of the suit property. The said application in IA No.48 of 2019 was allowed vide order dated 11th October, 2021 (Annexure-6) restraining Opposite Parties from alienating the IA schedule property to any 3rd party till disposal of the suit. Assailing the same, Opposite Parties filed FAO No.61 of 2021 and the impugned order has been passed setting aside the order passed in the IA under Annexure-6. 3.1 It is his submission that husband of the Petitioner was the Proprietor of M/s Durga Enterprises and was a tenant under Opposite Parties. An agreement for sale was also executed between the Opposite Party No.1 and the Petitioner and accordingly, Opposite Parties received Rs.45.00 lakh towards part consideration money. Though the suit has been filed for a decree of permanent injunction, but inadvertently the prayer for specific performance of contract could not be made in the suit. Accordingly, an application under Order VI Rule 17 CPC has been filed, which is pending for consideration. Learned trial Court, taking this fact into consideration, restrained the Opposite Parties from alienating the suit property. However, learned appellate Court failed to appreciate that the Petitioner is