The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 11-Mar-2024 10:27:43 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 1273 OF 2023 Pratap Chandra Dixit Petitioner Mr. Bhaskar Chandra Panda, Advocate …. Amarendra Dixit CORAM: -versus- …. Opp. Party
Legal Reasoning
Mr. S.S.K. Nayak, Advocate JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 07.03.2024 3. 1. This matter is taken up through hybrid mode. 2. Order dated 13th September, 2023 (Annexure-1) passed in F.A.O No.70 of 2023 is under challenge in this CMP, whereby learned District Judge, Bhadrak dismissing the appeal confirmed the order dated 1st August, 2023 (Annexure-5) passed by learned Civil Judge, Bhadrak in I.A. No.160 of 2023 (arising out of C.S. No.313 of 2023) rejecting an application under Order XXXIX Rules 1 and 2 CPC. 3. Mr. Panda, learned counsel for the Petitioner submits that the suit has been filed with a prayer to declare the Registered Sale Deed No.784 dated 24th April, 1987 in favour of Defendant No.11-Opposite Party as void, declaration of right, title and interest of the Plaintiff-Petitioner in respect of the suit property pursuant to the Gift Deed dated 26th April, 1974, 7th April, 1975 and 7th June, 1977 and also to declare the R.O.R. in respect of the said land to be illegal and void as well as for permanent injunction along with other reliefs. Since the Opposite Party by virtue of the mutation R.O.R. created disturbance in peaceful possession of the Plaintiff, an application in I.A. No.160 of 2023 Page 1 of 5 // 2 // Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 11-Mar-2024 10:27:43 was also filed for temporary injunction to restrain the Opposite Party from entering upon the suit land, cut away the trees and create any kind disturbance in peaceful possession of the Plaintiff. The said application was rejected vide order dated 1th August, 2023 under Annexure-5. Assailing the same, the Plaintiff-Petitioner preferred F.A.O. No.70 of 2023, which has also been dismissed vide order under Annexure-1. Hence, this CMP has been filed. 4. Mr. Panda, learned counsel for the Plaintiff-Petitioner submits that learned appellate Court while adjudicating the appeal categorically held that there is a prima facie case in favour of the Petitioner. But, holding the balance of convenience in favour of the Opposite Party, dismissed the appeal. It is further submitted that by playing fraud, the Opposite Party has obtained the sale deed in the guise of executing a deed of Power of Attorney. Unless the lis is protected during pendency of the suit, the Petitioner will be highly prejudiced. In support of his case, Mr. Panda, learned counsel for the Petitioner relied upon the case of Sagir Ahmed and others –v- Baptist Mission Corporation and others, passed in Misc. Case No.288 of 2015 (decided on 15th October, 2015), wherein this Court has held as under: “10. An order of interim injunction can only be passed in a case where that the applicant satisfies three ingredients, i.e., prima facie case, balance of convenience as well as irreparable loss. The Hon’ble Supreme Court in the case of Dalpat Kumar and another v. Prahlad Singh and others, reported in MANU/SC/0715/1991 : AIR 1993 SC 276, has vividly described the aforesaid three ingredients, which runs as follows: 5.Therefore, the burden is on the plaintiff by evidence aliunde by affidavit or otherwise that there is "a prima facie case" in his favour which needs adjudication at the trial. The existence of the prima facie right and infraction Page 2 of 5 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 11-Mar-2024 10:27:43 // 3 // 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 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 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 it 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. third condition also is 5. Mr. Panda, learned counsel for the Petitioner also relied upon the case of Lark Book Publishers, Bhubaneswar & another –v- Girija Nandini Praharaj & another, reported in AIR 2007 (NOC) 2354 (ORI.), whereby this Court has held as under: the “15. After patiently hearing the learned counsel for both sides, meticulously going through the pleadings of the parties, carefully examining legal provisions and diligently considering the matter in issue, this Court finds that all the submissions raised by Mr. Acharya before this Court relate to the merit of the suit. Therefore this Court feels that it would not be prudent to adjudicate the matter at this stage which may pre- judge the issue in the suit. Law is well settled that while considering an interim application it would be sufficient for the Page 3 of 5 // 4 // Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 11-Mar-2024 10:27:43 plaintiff to satisfy the court that he had a fair question to raise as to existence of his right, and that ends of justice and equity warrant that such right should be preserved until disposal of the suit. At that juncture it is not required for the plaintiff to prove his right and it would be sufficient if he can prima facie satisfy the court that he has got a good case to go to the trial.” He, therefore, submits that in view of the aforesaid settled law and that learned appellate Court found prima facie case in favour of the Petitioner, it should have protected the lis during pendency of the suit. Hence, the impugned order under Annexure-1 is not sustainable. 6. Mr. Nayak, learned counsel for the Opposite Party vehemently objects to the same and submits that when the Registered Sale Deed has been executed in favour of the Petitioner and on that basis the Petitioner has mutated the land in the name of the Opposite Party, learned appellate Court rightly held prima facie possession of the Opposite Party over the suit land. The validity of the sale deed is in question in the suit. Thus, at this stage, the possession and enjoyment of the Opposite Party over the suit property should not be disturbed by an order of injunction. As such, the impugned orders under Annexures-1 and 5 warrant no interference. 6. Considering the rival contentions of the parties and on perusal of the record along with the case laws cited, this Court is of the considered opinion that there can be no quarrel over the ratio decided in the aforesaid case. In the case at hand, mutation R.O.R. stands in the name of Opposite Party on the basis of Registered Sale Deed executed by the recorded tenant. It is alleged that in the guise of executing a Power of Attorney, the Opposite Party obtained the sale deed, which is a matter to be adjudicated in the suit itself by receiving evidence. The Mutation Page 4 of 5 // 5 // Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 11-Mar-2024 10:27:43 R.O.R. neither creates nor extinguishes any title of a party. But, it prima facie shows possession of the party in whose favour the R.O.R. has been published. Presumption of correctness of the Registered Sale Deed is attached to it unless disproved following due procedure of law. 6.1. In the instant case, the Mutation R.O.R. has been published in the name of the Opposite Party. Thus, learned appellate Court has rightly held prima facie possession of the Opposite Party over the suit property. If the prayer made in the petition under Order XXXIX Rules 1 and 2 CPC is allowed, there is every likelihood of dispossession of the Opposite Party from the suit property. Thus, learned appellate Court holding the prima facie case in favour of the Plaintiff-Petitioner held that the balance of convenience leans in favour of the Defendant- Opposite Party as he will be put to more inconvenience, if the temporary order of injunction is granted. If the Opposite Party is dispossessed from the suit property by virtue of an injunction order, he will definitely suffer irreparable loss. In view of the above, I find no infirmity in the impugned orders under Annexures-1 and 5. 7. Accordingly, the CMP being devoid of any merit stands dismissed. Urgent certified copy of this order be granted on proper application. ms (K.R. Mohapatra) Judge Page 5 of 5