The High Court
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IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 687 of 2021 Ramadevi Behera and others Petitioners Mr. Asim Kumar Dash, Advocate …. -versus- Bipin Behera and others …. Opp. Parties Mr. Pradipta Kumar Mohanty, Senior Advocate being assisted by Mr. Pronoy Mohanty, Advocate (For Opp. Party No.2-IDCO) Mr. Prakash Ranjan Barik, Advocate CORAM: JUSTICE K.R. MOHAPATRA (For Opp. Party No. 4) Order No. ORDER 11.09.2024 5. 1. This matter is taken up through hybrid mode. 2. The Petitioners in this CMP seek to assail the judgment dated 30th October, 2021 (Annexure-6) passed in FAO No. 67 of 2018, whereby learned Additional District Judge, Kujang allowing the appeal set aside the order dated 5th July, 2018 (Annexure-5) passed by learned Civil Judge (Senior Division), Kujang in I.A. No. 29 of 2016 (arising out of C.S. No.42 of
Legal Reasoning
2016) directing the parties to maintain status quo over the suit schedule property till disposal of the suit.
Legal Reasoning
3. Mr. Dash, learned counsel submits that the Petitioners are Plaintiffs in the suit. The suit has been filed seeking for a decree to direct the Defendant No.1-IDCO to execute and register the lease deed in respect of the suit schedule shed/property in their names upon receipt of the balance Page 1 of 7 // 2 // premium amount from Defendant No.3, namely, Hari Kishan Singh, proprietor of Defendant No.2, namely, M/s Anand Ice Factory. The Petitioners also prayed for permanent injunction against the Defendants. Along with the plaint, the Petitioners filed an application under Order XXXIX Rules 1 and 2 C.P.C., i.e., I.A. No. 641 of 2016 (29 of 2016) praying, inter alia, to restrain the Defendants-Opposite Parties from alienating the suit schedule shed/property to any other person than the Petitioners and dispossessing them from the suit property till disposal of the suit. Learned trial Court considering the case from its proper prospective vide order dated 5th July, 2018 (Annexure-5) directed the parties to maintain status quo over the suit schedule property till disposal of the suit. Assailing the same, the Defendant No.4 filed FAO No. 67 of 2018 and vide judgment dated 30th October, 2021 (Annexure-6), learned Appellate Court reversed the order passed under Annexure-5 and vacated the interim order of status quo. Hence, this CMP has been filed assailing the order under Annexure-6. 3.1 Mr. Dash, learned counsel for the Petitioners further submits that IDCO-Defendant No.1 is the owner of Plot Nos.646 and 1067 to an extent of Ac.0.55 decimals. The same was leased out in favour of M/s International Food Syndicate for carrying out its business in the Industrial Estate at Paradipgarh. Said M/s International Food Syndicate established its business concerned by taking financial assistance from OSFC, Cuttack. It made an agreement with M/s Anand Ice Factory-Defendant No.2 for transfer of the suit schedule Page 2 of 7 // 3 // shed/property with due permission of IDCO and in lieu thereof, the Defendant No.2 agreed to repay the loan dues of OSFC. Accordingly, the suit schedule shed/property was transferred to the Defendant No.2. The Defendant No.3, namely, Hari Kishan Singh, was the proprietor of Defendant No.2. In the year, 1992, father of the Plaintiffs-Petitioners, namely, Nidhisudan Behera, on a mutual agreement with the Defendant No.3 invested a huge amount of money for smooth running of M/s. Anand Ice Factory. He also gave Rs.75,000/- to the Defendant No.3 to purchase the unit. Accordingly, the Defendant No.3 executed an unregistered Power of Attorney in favour of father of the Plaintiffs-Petitioners on 15th August, 1993 on receiving the said amount of Rs.75,000/- and delivered possession of the unit with its assets and liabilities to the said Nidhisudan Behera. The Defendant No.3 also received a sum of Rs.5.00 lakh from the father of the Plaintiffs-Petitioners to transfer the suit property. Said Nidhisudhan Behera died on 11th January, 2006. In spite of several requests, said Hari Kishan Singh, Defendant No.3, did not return the amount, which was paid by the father of the Plaintiffs-Petitioners for transfer of the business concerned along with suit schedule shed/property. However, by virtue of the Power of Attorney, the Plaintiffs-Petitioners being the legal heirs are in possession of the suit schedule shed/property after death of their father. Since the IDCO- Defendant No.1 created disturbance and threatened to evict the Plaintiffs-Petitioners, the suit was filed. Learned trial Court holding that the Plaintiffs-Petitioners are in possession of the Page 3 of 7 // 4 // suit schedule shed/property by virtue of the unregistered Power of Attorney and the Plaintiffs-Petitioners have prayed for execution of the lease deed in their favour by accepting the balance amount from Defendant No.3, directed the parties to maintain status quo over the suit schedule shed/property. Learned Appellate Court observing that said Nidhisudan Behera, Power of Attorney Holder of Defendant No.3, died prior to filing of the suit and Power of Attorney was an unregistered document held that the Plaintiffs-Petitioners have not acquired any right to possess the industrial shed/land. It was also observed that the IDCO-Defendant No.1 does not recognize the Plaintiffs-Petitioners as the rightful persons to possess the suit schedule shed/property. Thus, learned Appellate Court set aside the order of status quo under Annexure-5 and allowed the appeal. 3.2 Mr. Dash, learned counsel submits that since the Plaintiffs-Petitioners are in possession over the suit schedule shed/property and their father has invested a huge amount to run the Defendant No.2-unit, balance of convenience leans in their favour and they will suffer irreparable loss, if the order of injunction is not continued. He also draws attention of this Court to the order dated 23rd December, 2021 passed in I.A. No. 747 of 2021 by which this Court while issuing notice in the matter directed that there shall stay operation of the judgment dated 30th October, 2021 under Annexure-6 till the next date. Said interim order is continuing till date. He, therefore, Page 4 of 7 // 5 // submits that said interim order should be allowed to continue till disposal of the suit for the interest of justice. 4. Mr. Mohanty, learned Senior Advocate appearing for IDCO-Opposite Party No.2 submits that the Petitioners do not have any locus standi to occupy the said industrial shed/land as rightly observed by learned Appellate Court. The IDCO- Opposite Party No.2 never recognized either the Petitioners or their father as the rightful person(s) to possess the suit schedule shed/property. The transaction between Defendant No.3 and father of the Plaintiffs-Petitioners is not within the knowledge of the IDCO-Opposite Party No.2 and if, at all, such transaction was made, the same is void ab initio without prior permission of the IDCO, who is the rightful owner of the suit industrial shed and plot. Since the Defendant No.2 could not repay the loan amount, the OSFC auctioned the suit schedule shed/property and in view of the interim order passed by this Court, process of transfer in respect of the suit shed and land to Opposite Party No.4 has been kept in abeyance. Thus, the Petitioners do not have any semblance of right to occupy the said suit schedule shed/property. 5. Mr. Barik, learned counsel for Opposite Party No.4 also reiterates the same and submits that since the Opposite Party No.4 has invested a huge amount in participating in the auction process and has been adjudged successful, the process of transfer of the suit schedule shed/property should not be obstructed in between. As it is, the Opposite Party No.4 has suffered a lot. Hence, he prays for dismissal of the CMP. Page 5 of 7 // 6 // 6. Taking into consideration the submission made by learned counsel for the parties and on perusal of the record, it appears that the suit schedule shed/property is owned by IDCO- Opposite Party No.2. It was initially leased out in favour of one M/s International Food Syndicate. In due process, the Defendant No.2, M/s Anand Ice Factory, was allotted with said industrial shed/plot by IDCO. There might be some transaction between the proprietor of Defendant No.2, namely, Defendant No.3 and father of the Petitioners, namely, Nidhisudan Behera, but the same was done without consent and prior approval of the true owner of the property, namely, IDCO. As such, it does not have any legal sanctity. It further appears that the Petitioners claimed right over the suit schedule shed/property by virtue of Power of Attorney executed in favour of their father and some money receipts. They might have some cause of action against Defendant No.3, but for the same, the true owner, namely, IDCO-Defendant No.1 and proposed allottee, namely, Defendant No.4, should not suffer. The Petitioners have neither any prima facie case to occupy the suit property nor balance of convenience leans in their favour. Loss, if any, to the Petitioners may be recovered from Defendant No.3 in due process of law. As such, learned Appellate Court has committed no error in reversing the order passed by learned trial Court by setting aside the order of status quo. 7. In view of the above, the CMP being devoid of any merit stands dismissed. Page 6 of 7 // 7 // 8. The interim order dated 23rd December, 2021 passed in I.A. No.747 of 2021 stands vacated. Urgent certified copy of this order be granted on proper application. bks (K.R. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: BIJAY KUMAR SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 17-Sep-2024 15:25:38 Page 7 of 7