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IN THE HIGH COURT OF ORISSA
B.N. Misra., J.
GOPI BHOI - APPELLANT
Versus
LAXMAN PRADHAN - RESPONDENT
Civil Revision No. 776 of 1983 (from an order dated 7-11-1983 passed by Shri A.P. Guru, District Judge, Puri in Misc. Appeal No. 87 of 1983, reversing the order dated 30-7-1983 of Smt. B. Devi, Munsif, Puri in Misc. Case No. 100 of 1983)
Decided On : 27-06-1984
INJUNCTION - ORDER 39, RULE 4, C.P.C. - CHANGE IN CIRCUMSTANCES - UNDUE HARDSHIP - VARIATION OF INJUNCTION ORDER - COURT'S JURISDICTION - RES JUDICATA - APPLICABILITY TO INTERLOCUTORY ORDERS - DISTINCTION BETWEEN ORDERS MAINTAINING STATUS QUO AND THOSE ENSURING JUST AND ORDERLY DISPOSAL OF SUIT.
Fact of the Case:
Petitioners challenged an order of the District Judge restraining them from entering upon or interfering with the possession of the opposite parties over the suit-lands. The opposite parties had earlier filed an injunction petition on the same grounds, which was dismissed by the Munsif. The District Judge, on appeal, had clarified that the petitioners were not restrained from going upon the suit-land and raising crops. However, the opposite parties filed a second injunction petition, which was allowed by the District Judge.
Finding of the Court:
The court held that the District Judge acted in excess of his jurisdiction in passing the impugned order as it was based on the same facts which had been duly considered and rejected by his predecessor-in-office. The court further held that the opposite parties had not proved any change in circumstances or undue hardship to justify the variation of the injunction order.
Issues: 1. Whether the District Judge had jurisdiction to vary the injunction order passed by his predecessor-in-office on the same facts? 2. Whether the opposite parties had proved any change in circumstances or undue hardship to justify the variation of the injunction order?
Ratio Decidendi: 1. The court held that the District Judge did not have jurisdiction to vary the injunction order passed by his predecessor-in-office on the same facts. The court relied on the principle of res judicata, which applies to interlocutory orders that do not decide the merits of the controversy in issue in the suit and do not put an end to it even in part. 2. The court held that the opposite parties had not proved any change in circumstances or undue hardship to justify the variation of the injunction order. The court noted that the second Proviso to Order 39, Rule 4, C.P.C. provides that an order of injunction shall not be discharged, varied or set aside except where such a course is necessitated by change in the circumstances or unless the court is satisfied that the order had caused undue hardship to that party.
Final Decision: The revision petition was allowed, the impugned order of the District Judge was set aside, and the order of the Munsif was restored.
JUDGMENT :
B.N. Misra, J. - Though in this revision notice of admission and hearing bad been issued, with consent of counsel for both sides the matter was heard.
2. Amit.
3. This revision is directed against the order dated 7-11-1983 passed by the learned District Judge, Puri in Misc. Appeal No. 87 of 1983 restraining the petitioners from entering upon the suit-properties and causing disturbance in the possession of the opposite parties and in addition restraining the former from cutting the standing trees and damaging the boundaries of the suit-properties till the disposal of the suit by the trial court. By this order the learned District Judge set aside the order dated 30-7-1983 of the learned Munsif, Puri in Misc. Case No. 100 of 1983 wherein the injunction petition filed by the opposite parties against the petitioners had been dismissed.
4. The facts may be briefly noted. The opposite parties are the plaintiffs and the petitioners are the defendants in O. S. No. 273/82-1 pending in the file of the learned Munsif, Puri. The suit is one for permanent injunction. In the suit the opposite parties had filed a petition under Order 39, Rule 1, C. P. C. which was registered by the trial court as Misc. Case No. 263 of 1982. The opposite parties had prayed that the petitioners should be restrained from entering upon the suit land and interfering with their peaceful possession, cutting the trees and damaging the boundaries of the suit-lands till the final disposal of the suit. The petitioners had filed a rejoinder opposing the prayer for injunction. The learned Munsif who heard the matter restrained the petitioners from cutting and removing the trees standing on the suit-lands and damaging the boundaries thereof, but did not restrain the petitioners from entering upon the said lands. Thereafter, the petitioners filed Misc. Appeal No. 117 of 1982, but the opposite parties did not prefer any appeal against the aforesaid order of the learned Munsif. Vide his order dated 21-3-1983, the learned District Judge dismissed the appeal with the following clarification:-
"Accordingly it is hereby clarified that by the temporary injunction issued by the learned Munsif, Puri the defendants have not been restrained from going upon the suit-land and therefore, it follows that there is no impediment for them to raise crops and appropriate the usufructs. They have been restrained only from causing any damage, destruction or loss to the suit-property. With this clarification sought, for, the appeal is dismissed."
Neither the petitioners nor the opposite parties challenged the aforesaid order of the learned District Judge which was allowed to stand as final.
5. Thereafter, the opposite parties filed a second petition under Order 39, Rule 1, C. P. C. with a prayer to restrain the petitioners from entering upon or interfering with their possession over the suit-lands. This petition was registered as Misc. Case No. 100 of 1983. The petitioners filed their objection. By order dated 30-7-1983, the learned Munsif dismissed the injunction petition on finding that there was no fresh cause of action and that the previous injunction application filed by the opposite parties on the same grounds had been duly considered and decided. The opposite parties challenged the aforesaid order of the learned Munsif in Misc. Appeal No. 87 of 1983. By his order dated 7-11-1983, the learned District Judge allowed the appeal and restrained the petitioners from entering upon the suit-lands or creating any disturbance in the possession of the opposite parties and further restrained the petitioners from cutting the standing trees or damaging the boundaries of the suit-lands. It is this order of the learned District Judge which is challenged in this revision.
6. Mr. A.K. Mahapatra, learned counsel appearing for the petitioners, has urged that the learned District Judge acted in excess of his jurisdiction in passing the impugned order in as much as on the same facts his predecessor-in-office
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