The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 1089 of 2022 Basant Prasad Binod Prasad CORAM: …. Mr. Prafulla Kumar Rath, Senior Advocate being assisted by Miss Sradha Das, Advocate Petitioner -versus- …. Opp. Party None JUSTICE K.R. MOHAPATRA Order No. 5. 1. 2.
Decision
ORDER 12.10.2023 This matter is taken up through Hybrid mode. Petitioner in this CMP seeks to assail the order dated 30th August, 2022 (Annexure-1) passed by learned 1st Additional District Judge, Rourkela, in FAO No.23 of 2021, whereby allowing the appeal, learned appellate Court set aside the order dated 15th September, 2021 (Annexure-5) passed by learned Senior Civil Judge, Rourkela in IA No.49 of 2020 (arising out of CS No.127 of 2020) dismissing an application under Order XXXIX Rules 1 and 2 CPC. 3. Mr. Rath, learned Senior Advocate appearing for the Petitioner submits that the Petitioner is father of the Opposite Party. The Opposite Party has filed the suit for declaration that the suit house is his exclusive property, permanent injunction restraining the Defendant/Petitioner from transferring the suit house in any manner whatsoever and cost of the suit. As revealed from the plaint, the suit house stands in the name of the Defendant/Petitioner. The Petitioner was an employee of Kalinga Iron Works, Barbil in the district of Keonjhar and availed voluntary retirement. The Plaintiff/Opposite Party is the Page 1 of 5 // 2 // Deputy Director of National Council for Cooperative Training, New Delhi and is posted at Patna. Pursuant to an advertisement published by the Odisha State Housing Board, Bhubaneswar, the Petitioner made an application for allotment of a HIG (core) house at Chhend, Phase-III, Stage-A, Rourkela. The entire money for acquiring the house and made it fit for habitation was paid by the Plaintiff/Opposite Party. Since the Defendant- Petitioner intended to alienate the property, the aforesaid suit has been filed. 3.1 Along with the plaint, the Plaintiff/Opposite Party filed an application in IA No.49 of 2020 under Order XXXIX Rules 1 and 2 CPC to restrain the present Petitioner from transferring the suit house during pendency of the suit. The Petitioner filed objection stating that the suit house stands in his name. The Opposite Party is not taking care of the Petitioner in his old age. Since the property acquired and stands in the name of the Petitioner and he is residing therein, the prayer made in the petition under Order XXXIX Rules 1 and 2 CPC does not merit consideration. Hence, he prays for dismissal of the IA. 3.2 Learned trial Court although held that the Opposite Party has a prima facie case and balance of convenience equally leans in favour of both parties, but held that the Plaintiff- Opposite party will not suffer any irreparable loss which can be compensated in terms of money. Hence, it dismissed the application. Assailing the same, the Opposite Party preferred FAO No.23 of 2021 and the impugned order under Annexure-1 has been passed. Learned appellate Court along with other observations held that the Opposite Party will suffer irreparable loss, if the injunction is not granted as he has invested a huge Page 2 of 5 // 3 // amount for acquisition of the property. It is also held that the Plaintiff-Opposite Party has the legal interest in the property as he has invested money for its acquisition. It is also held that the protection given in Section 52 of the Transfer of Property Act, 1882 will not suffice, if no injunction is granted. Accordingly, the impugned order has been passed. 4. It is submitted by Mr. Rath, learned Senior Advocate that admittedly the property stands in the name of the Petitioner and he is residing therein. It is alleged that the Opposite Party has invested money for its acquisition. Thus, loss, if any, to the Opposite party can be compensated in terms of money. This aspect has been elaborately dealt with by the learned trial Court, but learned Appellate Court held that if the property is sold, the Opposite Party will suffer irreparable loss. It is his submission that the Petitioner does not have any regular income, as his service was not pensionable. The Opposite party is not looking after the Petitioner-father in his old age. He (Petitioner) does not have any money to meet with daily needs as well as expenses of medicine. In view of the above, the residential house is the only source to get some income for the Petitioner in his old age. It is his submission that learned appellate Court erroneously held that the Opposite Party will suffer irreparable loss if no order of injunction is granted. If the property is alienated during pendency of the suit, it will be guided by the principle of Section 52 of the Transfer of Property Act. Thus, the transferee shall be bound by the decree, if any, passed in the suit. It is also submitted that the Opposite Party can be compensated in terms of money, if any loss is sustained by him. In that view of the matter, he prays for setting aside the impugned order. Page 3 of 5 // 4 // 5. Although the Opposite Party is represented through learned counsel, but none appears on his behalf at the time of call. From the order sheet, it appears that on 10th August, 2023 and 5th October, 2023, the matter was adjourned due to non- appearance of the Plaintiff-Opposite Party. Today also non- appears for the Opposite Party. Hence, this Court felt it proper to proceed with the matter in absence of the Opposite Party. 6. Admittedly, the property stands recorded in the name of the Petitioner and he is residing therein. Pursuant to an advertisement of Odisha Housing Board, the Petitioner made an application and the suit core house was allotted in his favour. It is alleged that the Opposite Party has invested a substantial amount of money for acquisition as well as for construction and furnishing of the suit house. Several documents were also filed on behalf of the Opposite Party in support of investment of money for its acquisition and to make it habitable. The veracity of those documents can be tested during adjudication of the suit. Prima facie it appears that the property stands in the name of the Petitioner and he is residing therein. If the property is transferred in the meantime, loss, if any to the Opposite Party can be compensated in terms of money. Although the Petitioner has a prima facie case in his favour, but balance of convenience equally leans in favour of both the parties in view of the facts and circumstances stated above. So far as irreparable loss is concerned, this Court is of the considered opinion that the loss, if any, can be made good in terms of money. Thus, the Petitioner, who is the recorded owner of the suit house should not be restrained from dealing with the property independently. However, if any alienation is made during pendency of the suit, Page 4 of 5 // 5 // the same would be guided by the principle under Section 52 of the Transfer of Property Act. As such, learned appellate Court has committed an error in holding that the Opposite Party will suffer irreparable loss, if the order of injunction is not granted. 7. Accordingly, the impugned order under Annexure-1 passed by learned 1st Additional District Judge, Rourkela in FAO No.23 of 2021 is set aside and the order under Annexure-5 passed by learned Senior Civil Judge, Rourkela in IA No.49 of 2020 (arising out of CS No.127 of 2020) is confirmed. 8. The CMP is allowed and disposed of as such. Issue urgent certified copy of the order on proper application. (K.R. Mohapatra) Judge s.s.satapathy Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Oct-2023 11:12:21 Page 5 of 5