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2003 Supreme(Ori) 176
2003 (I) OLR — 473
P. K. TRIPATHY, J.
Nandakishore Nayak and two others... Petitioners
Versus
State of Orissa and two others... Opp. Parties
C.R.P. No. 268 of 2002
Decided on 21st February, 2003.
For Petitioners:M/s A.R. Dash, N. Lenka, N. Das, S. Sahoo, R.N. Behera, R.N. Sahoo
For Opp.Parties:M/s D. Mohapatra, D.K. Sahu, M. Mohapatra (for OP-3)
Headnote:1. CIVIL PROCEDURE CODE, 1908 - Order 39, Rule 1 - Temporary injunction - In an application for temporary injunction applicant is not to succeed in getting such an equitable relief merely on proof of prima facie case - Alongwith the existence of a prima facie case petitioner has to prove on record that the balance of convenience leans in his favour and refusal to grant injunction will ensure in irreparable loss and injury which cannot be compensated.
(Para - 6)
2. CIVIL PROCEDURE CODE, 1908 - Sec. 115 - While exercising revisional jurisdiction Court does not have unfettered jurisdiction to interfere on factual findings recorded by Court below unless it finds that there exists illegality or perversity in recording factual findings - Order can be interfered if it is found that jurisdictional error has been committed by the Courts below - Jurisdiction can be exercised if Court finds that the Court below having jurisdiction to adjudicate the dispute and while so adjudicating such dispute acted illegally or with material irregularity - In the present case no illegality or perversity in the approach and adjudication made by Courts below. (Para - 7)
3. CIVIL PROCEDURE CODE, 1908 - Order 7, Rule 11 - A plaint shall not be admitted, inter alia if there is defect in valuation or non-payment of Court-fee in accordance with law - Direction in the regards issued. (Para - 11)
4. SUIT - Valuation of a suit and payment of Court-fees is a matter between the plaintiff and the Court and the defendants have no say in that respect. (Para - 11)
ORDER
CRP No. 268 of 2002
and
Misc. Case No. 148 of 2003
21.2.2003 — Learned counsel for both the parties are present. Petitioners have filed today in the Court the above noted Misc.Case with the prayer to pass appropriate interim order to prevent interference on the rights of the plaintiffs by the defendants. Since the revision is being taken up, on consent of the parties for dispos¬al at the stage of admission, therefore, appropriate orders shall be passed in the Civil Revision Petition and therefore no separate order need be passed on the aforesaid application filed in Court today.
2. Plaintiffs in Title Suit No.688/678 of 2001/1999 of the Court of Civil Judge (Jr. Division), Bhubaneswar have filed this Civil Revision Petition u/s 115, CPC challenging to legality and correctness of the order passed on 29.6.2002 by the said Civil Judge and the confirming order passed by learned Addl. District Judge, Bhubaneswar on 21.11.2002 in F.A.O. No. 74 of 2002 by refusing to grant temporary injunction in favour of the plain¬tiffs by issuing an order of restraint directing the defendants not to possess or to carry on any subsequent activities on the suit area measuring Ac.5.15 decimals from out of Ac.95.00 in plot No. 291 (according to 1931 Settlement).
3. It is the admitted case of the parties that in the Record-of-Right distributed in the year 1988-89 the disputed plot has been recorded in the name of the State Government of Orissa, i.e., Defendant No.1 and on 3.4.2000 defendant 1 and 2 have allotted Ac.19.00 out of the same in favour of Defendant No.3, i.e., Bhubaneswar Development Authority (in short the ‘BDA’) to carry out the social housing scheme.
4. The claim of the plaintiffs is based on a lease said to have been executed by the ex-proprietor and intermediary i.e. the Ruler of Patia Estate and granting a Hata Patta on 7.5.1931. Plaintiffs assert corroboration to that lease by stating that during the Estate Abolition Proceeding in the Ekapadia submitted by the ex-proprietor the aforesaid lease was intimated to the O.E.A. Collector, plaintiffs were not recorded in the Settlement of the year 1973 but a note of possession was endorsed in their favour and thereafter when they initiated action under the O.E.A. Act plaintiffs were advised to approach the Civil Court. With the aforesaid assertion and the contention that the Record-of-Right prepared in the name of Defendant No.1 in the year 1988 is illegal and not sustainable plaintiffs filed the aforesaid suit for declaration of title, confirmation of possession and permanent injunction. In the above noted suit plaintiffs also filed the application under Order 39 Rule 1 and 2, CPC which was registered as Misc.Case No.577/609 of 2001/1999. As noted above, as per the order passed on 29.6.2002 learned Civil Judge (Jr.Divn.) refused to grant temporary injunction in favour of the plaintiffs on the ground of valid title and possession being prima facie appearing in favour of the Defendants. In the above noted appeal, preferred by the plaintiffs, learned Addl. District Judge (FTC No. IV), Bhubaneswar also considered the pleadings and contention of the parties and adopted to the conclusion of the learned Civil Judge (Jr. Division) and accordingly dismissed the appeal on 11.11.2002.
5. In course of hearing various contentions have been raised by the plaintiffs/petitioners in support of the contention regarding existence of prima facie case on the basis of a good title in favour of the plaintiffs. In that respect, also several decisions were relied on, but it is not necessary to note the same because from the pleadings it appears that the plaintiffs make out a prima facie case.
6. It is the settled position of law that in an applica¬tion for temporary injunction applicant is not to succeed in getting such an equitable relief merely on proof of prima facie case. On the other hand, along with the existence of a prima facie case petitioner has to prove on record that the balance of convenience leans
