The court affirmed its inherent authority to issue preservation orders under Article 227 and Section 151 of CPC, regardless of injunction criteria not being satisfied, emphasizing the maintenance of status quo in joint property disputes.

JUDGMENT :

SASHIKANTA MISHRA, J.

Though both the applications filed under Article 227 of the Constitution of India are individually directed against two separate orders passed in connection with the same civil suit, yet the facts involved in both being intricately connected, both were heard together and are being disposed of by this common judgment.

2. The petitioner in CMP No.735 of 2024 is defendant No.2 in C.S. Case No.19 of 2022 pending in the Court of learned Civil Judge (Senior Division), Basudevpur. He is also petitioner No.2 in CMP No.736 of 2024, while petitioner No.1 thereof is defendant No.1 in the aforementioned suit. The present opposite parties are the plaintiffs in the said suit.

3. The suit is one filed by the plaintiffs for partition of the scheduled properties claiming that the same are the ancestral properties. The plaintiffs filed an application being I.A. No.25 of 2023 in the said suit under Order XXXIX, Rules 1 and 2 of CPC, read with section 151 of CPC for temporary injunction against the defendants. The defendants filed their objection. By order dated 15.05.2023, the Trial Court finding no merit in the application, rejected the same. The plaintiffs thereafter filed another application being I.A. No. 51 of 2023 with prayer to restrict the defendants from constructing any house over the suit land till disposal of the suit. The defendants filed objection. By order dated 03.07.2023, the Trial Court allowed the application by directing both parties to maintain status quo.

4. Being aggrieved, the defendants carried appeal to the District Judge being FAO No.61 of 2023. By order dated 20.02.2024, the appeal was dismissed. Said order is impugned in CMP No. 735 of 2024.

5. After dismissal of the appeal by the District Judge, the defendants filed an application in the Trial Court being CMA No.21 of 2024 seeking permission to complete their half-constructed house. The plaintiffs filed objection. By order dated 25.04.2024, the Trial Court rejected the application, against which CMP No. 736 of 2024 has been filed.

2. For the sake of convenience, the parties are referred to as per their respective status in the trial Court.

6. Heard Mr. A.P. Bose, learned counsel for the defendants and Mr. S.S. Chaini, learned counsel for the plaintiffs.

7. Mr. Bose would argue that a second application for injunction could not have been entertained after dismissal of the first application by the Trial Court. Further, the Trial Court having found that the three ingredients for passing an order of injunction being absent, could not have passed an order directing both parties to maintain status quo. He further submits that the defendants having constructed their house in part shall be put to immense difficulties if they are not allowed to complete the construction. Mr. Bose has relied upon several judgments in support of his contentions.

8. Per contra, Mr. Chaini would argue that the first application having been rejected on technical grounds but not on merits, the second application was maintainable particularly as there was change in circumstances. He further argues that in a suit for partition every co-sharer has a right over every inch of joint property until the same is partitioned by metes and bounds. The principle of res judicata does not apply to interlocutory applications. Though the Trial Court refused to grant injunction but passed the impugned order with the intent of preserving the property as it is till disposal of the suit as otherwise it would cause prejudice to the parties. Having once passed an order of status quo, the Trial Court rightly rejected the a