A suit for permanent injunction does not abate under the provisions of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act (Orissa Act 21 of 1972), inasmuch as the authorities under the special Act have no jurisdiction to grant injunction.

R. N. MISRA, C. J.

( 1 ) PLAINTIFF's suit for permanent injunction restraining the defendants from interfering with her possession and enjoyment of the property having been declared to have partly abated by the trial Court under the provisions of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act (Orissa Act 21 of 1972) (hereinafter referred to as the 'act') she has filed this revision application challenging the order of partial abatement. When the revision petition came up for hearing before one of us, it was directed to be placed before a Division Bench as some single Judge decisions to which we shall make reference later took contradictory views oa the point in issue.

( 2 ) THE suit property covered both homestead and other lands. So far as homestead property is concerned, the learned Munsif held that there would be no abatement and accordingly in the impugned order he directed the suit to continue in regard to plots Nos. 534, 538, 539 and 540. He, however, directed the suit to stand abated so far as Khata Nos. 152, 249, 501, 537 and 271 are concerned.

( 3 ) THERE is no dispute that there is a notification under Section 3 of the Act in which the disputed properties are included. Section 4 of the Act makes provision as to the effect of the notification. Sub-section (4) thereof provides : -

"every suit and proceedings for declaration of any right or interest in any land situate within the consolidation area in regard to which proceeding could be or ought to be started under this Act, which is pending before any Civil Court, whether of the first instance or appeal, reference or revision shall, on an order being passed in that behalf by the Court before which such suit or proceeding is pending, stand abated : Provided. . . . . "

Counsel for the petitioner contends that a suit for permanent injunction cannot abate under the provisions of the Orissa Act 21 of 1972, inasmuch as the authorities under the special Act have no jurisdiction to grant injunction. Counsel maintains that the relief of permanent injunction is a well-recognised one at law. Section 54 of the Specific Relief Act of 1977 made provision for such a suit and Section 38 of the new Specific Relief Act of 1963 is a provision following the old pattern. According to petitioner's counsel, since permanent injunction is a known form of remedy and a suit exclusively for that relief lay, unless there was clear provision or by necessary implication, the legislative intention became manifest, a pending action could not abate. The oft-quoted dictum of Willes J. , in Wolverhampton New Waterworks Co. v. Hawkesford, (1859) 6 CB (NS) 336, is to the following effect :--

"there are three classes of cases in which a liability might be established, founded upon statute. One is where there was a liability existing at common law, and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law; there, unless the statute contains words which expressly or by necessary implication excludes the common law remedy, the party suing has his election to pursue either that or the statutory remedy. The second class of cases is, where the statute gives the right to sue merely, but provides no particular form or remedy; there, the party can only proceed by action at common law. But there is a third class, viz. , where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. "

The relief of injunction, as already pointed out. was an existing remedy at common law. No provision has been made in the Act empowering the authorities to grant injunction. Can the existing remedy at common law for which there is a pending action, in the circumstances, be held to h