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2007 Supreme(Ori) 678
2007 (II) OLR — 548
L. MOHAPATRA, J.
Sri Tapan Kumar Mohanty...Petitioner
Versus
Smt. Sudhansubala Sahu and another...Opp. Parties
W. P. (C) No. 9899 of 2007
Decided on 7th September, 2007.
For Petitioner:M/s. Bansidhar Baug, S.S.Ghose, S. Rath, R.C.P.Das
For Opp. Parties:M/s. Mr. B.H.Mohanty and Mr. Jaya¬deep Pal
Headnote:1. CIVIL PROCEDURE CODE, 1908 - Order 39, Rules 1 and 2 - Suit - Injunction - Trial Court passed an order of status quo to be maintained by the parties and confirmed in appeal by the learned District Judge - Writ - The person who seeks injunction must establish that he has prima facie title over the property - Court having not found title with either party on the existing materials, which was difficult for it to ascertain, could not have held that the O.P.No. 1 has prima facie title over the property merely because he has an arguable case - Even if a party seeking injunction is capable to establish a prima facie case, unless he is in possession of the disputed property, the Court may refuse to grant injunction considering other ingredients such as irreparable loss and balance of convenience - The documents produced by the petitioner proves that he is in possession of the suit property and not the plaintiff-O.P.No. 1 - Since the peti¬tioner is in possession of the suit property and has constructed major part of the multistoried building, balance of convenience lies in his favour - If an order of injunction or status quo is passed, the same shall cause irreparable loss to the petitioner - Granting an order of status quo in absence of finding with regard to title, possession, etc. has resulted in gross failure of justice - Order of status quo passed by Courts below vacated. (Paras - 9 to 11)
2. INJUNCTION - Ingredients of stated.
It is a form of equitable relief and they have to be adjust¬ed in aid of equity and justice to the facts of each particular case. It is not a violation of every legal right which justifies the grant of an injunctive remedy. Injunction can be issued where the right which is sought to be protected is clear and unques¬tioned and not where the right is doubtful and there is no emer¬gency and further where the injury threatened is positive and substantial and is otherwise irremediable. The conduct of the person seeking injunction must be free from the shadow of unfair¬ness. (Para - 8)
3. INJUNCTION - Principles on which grant of injunction rests:
(1)in the facts and circumstances of each individual case there must exist a strong probability that the petitioner has an ulti¬mate chance of success in the suit, which is otherwise known as prima facie case.
(2)As the injunction is granted during the pendency of the suit, the Court will interfere to protect the plaintiff from injuries which are irreparable. This otherwise means that it must be material one which cannot be adequately compensated for in damages. The injury need not be actual, but may be apprehended.
(3)The Court is to balance and weight the mischief or inconven¬ience to either side before issuing or withholding the injunc¬tion. (Para - 8)
JUDGMENT
L. MOHAPATRA, J. — This writ application is directed against the order 9.8.2007 passed by the learned District Judge, Khurda at Bhubaneswar in F.A.O. No. 60 of 2007 dismissing the same and confirming the order dated 30.6.2007 passed by the learned Civil Judge (Senior Division), Bhubaneswar in Misc. Case No. 30 of 2002 (arising out of Title Suit No. 29 of 2002) in an application filed under Order 39 Rules 1 and 2 of the Code of Civil Procedure directing the parties to maintain status quo over the suit land till disposal of the suit.
2. Opposite party No. 1, Smt. Sudhansubala Sahu, had initially filed the aforesaid suit against the opposite party No. 2 Soubhagya Kumar Mishra for declaration of right, title and interest over the B-Schedule property and also for confirmation of possession and permanent injunction. Case of the plaintiff-opposite party No. 1 is that one Tilatama Samal was the rightful owner in respect of the suit Schedule property who derived her title by virtue of the order passed in O.E.A.Case No. 75 of 1959-60 and Revision Case No. 3178 of 1973-74 and Record-of-Right has been published in her name. The said Tilatama Samal expired leaving behind Alekha Sasmal @ Samal, Gurei Sasmal @ Samal and Rabindra Sasmal @ Samal as her legal heirs who succeeded to the suit property. The aforesaid three legal heirs sold the suit property to Jayant Kumar Jena and Kailash Chandra Mishra under two registered sale deeds dated 9.10.1995, whole in turn sold the same to the plaintiff-opposite party No. 1 under two sale deeds dated 7.3.2001 through their power of attorney Sasanka Sekhar Sahu. It is further case of the plaintiff-opposite party No. 1 that while he was continuing in possession of the aforesaid suit property, the opposite party No. 2 created disturbance in her possession and accordingly the suit was filed. In the said suit an application was filed under Order 39, Rules 1 and 2 of the C.P.C. vide M.J.C. No. 30 of 2002 to grant temporary injunction restraining the opposite party No. 2 from demolishing the bound¬ary wall and from evicting the opposite party No. 1 from the suit schedule property. An application under Order 30, Rule 3 C.P.C. was also filed vide Misc. Case No. 30 of 2002 for grant of ex parte ad-interim injunction and by order dated 15.1.2002 the Court passed an ex parte order of status quo, whereafter notice was served on the opposite party No. 2 sometime in December, 2006 and the said order was extended from time to time by the trial Court.
3. Case of the present petitioner, who was not originally a party to the suit, is that the suit schedule property and some other undisputed properties belonged to one Tilatama Samal, who derived her title by virtue of O.E.A. Vesting Case No. 75 of 1059-60 and Revision case No. 3178 of 1973-74, pursuant to which R.O.R. had been published in the favour of said Tilatama Samal in the year 1989. According to the present petitioner, said Tilatama Samal is a resident of Dihabalarampur in the district of Kendrapara and while in possession of the disputed property she sold the same to one Siprarani Jena through her power of attorney under registered sale deed dated 11.10.1985. Said Siprarani Jena after her purchase got the land mutated and accordingly mutated R.O.R. was issued in favour of said Siprarani Jena and while she was continuing in possession of the suit property by paying rent, she sold the same to the company of the present petitioner under registered sale deed No. 956 dated 26.2.2004 and delivered pos¬session thereof to the petitioner. After purchasing the land from Siprarani Jena the petitioner filed an application before the Revenue Officer, Bhubaneswar under the provisions of the Orissa Land Reforms Act for conversion of the same to homestead land and the Tahasildar, Bhubaneswar in O.L.R.Case No. 1275 of 2004 al¬lowed conversion of the land on payment of conversion fees of Rs. 84,000/- and Rs. 10,430/- for the suit schedule land and other undisputed lands and
