Designation: Junior ... vs Premananda Muduli
2023 Latest Caselaw 5931 Ori

Signature Not Verified                           IN THE HIGH COURT OF ORISSA AT CUTTACK
Digitally Signed
Signed by: MADHUSMITA SAHOO                                    CMP No. 155 OF 2022
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack        Basanti Mohapatra                   ....       Petitioner
Date: 15-May-2023 19:07:26
                                                                    Mr. Prafulla Kumar Rath, Advocate
                                                                    -versus-
                                               Premananda Muduli                   .... Opp. Party
                                                               Mr. Mruganka Mauli Patanaik, Advocate


                                                     CORAM:
                                                     JUSTICE K.R. MOHAPATRA
                                                                     ORDER

                    Order No.                                       15.05.2023
                          5.              1.      This matter is taken up through hybrid mode.

2. The Petitioner in this CMP seeks to assail the judgment dated 28th January, 2022 (Annexure-1) passed by learned District Judge, Puri in F.A.O. No.50 of 2021, whereby learned Appellate Court allowed the appeal and thereby set aside the order dated 13th December, 2021 (Annexure-8) passed by learned Civil Judge (Junior Division), Puri in I.A. No. 07 of 2020 (arising out of C.S. Case No.11 of 2020) directing both the parties to maintain status quo over the suit property till disposal of the suit.

3. Mr. Rath, learned counsel submits that the Defendant is the Petitioner in this CMP. The suit has been filed for an injunction simplicitor directing the Defendant-Petitioner not to come over Plot No.154. Admittedly, the Plaintiff is the owner in possession over Plot No.154 and the Defendant is the owner in possession of Plot No.150. There is a boundary dispute between the parties, for which a proceeding under Section 144 Cr.P.C. was initiated in Crl. Misc. Case No.190 of 2019. The said proceeding was dropped vide order dated 22nd January,

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2020 observing that the dispute is civil in nature. Both the Courts have categorically observed that the Defendant- Petitioner has started construction. The Plaintiff alleges that the construction is being made encroaching upon Plot No. 154. Hence, an application under order XXXIX Rules 1 and 2 in I.A. No.07 of 2020 was filed. Although, learned trial Court found prima facie case in favour of the Plaintiff-Opposite Party, but held that the Plaintiff-Opposite Party will not suffer any irreparable loss, if the order of injunction is not granted and it is also held that the balance of convenience leans in favour of the present Petitioner. Thus, learned trial Court dismissed the petition and vacated the interim order of status quo passed earlier. Being aggrieved, the Opposite Party preferred an appeal in F.A.O. No. 50 of 2021 before learned District Judge, Puri. Although learned District Judge, Puri held the prima facie case in favour of the Plaintiff-Opposite Party, but without recording any finding on balance of convenience as well as irreparable loss, allowed the appeal and directed both the parties to maintain status quo over the suit property observing that there is a scramble of possession between the parties. Hence, this CMP has been filed.

4. It is submitted by Mr. Rath, learned counsel for the Petitioner that at the instance of the Plaintiff-Opposite Party, a petition under Order XXVI Rule 9 C.P.C. was filed. Although, there was a direction for deputation of a Survey knowing Commissioner, but no report has yet been submitted. In absence of any finding with regard to irreparable loss or balance of convenience, learned Appellate Court should not have directed both the parties to maintain status quo over the suit property

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thereby restraining the Defendant from making further construction over the suit land. Hence, he prays for setting aside the impugned order under Annexure-1.

5. Mr. Patanaik, learned counsel for the Opposite Party submits that learned Appellate Court while discussing the matter has considered the question of balance of convenience at Paragraph-5 of the impugned order under Annexure-1. He also brought notice of this Court to the observation made in Paragraph-6 of the impugned order to the effect that since there is a scramble for possession over the suit property. Thus, the same need to be protected by passing an order of status quo. He also submitted that loss, if any, caused to the Defendant- Petitioner can be compensated by claiming damages. He, therefore, submits that the injunction being an equitable relief, learned Appellate Court by striking a balance with regard to comparative inconvenience to the parties directed both the parties to maintain status quo over the suit property. As such, the impugned order under Annexure-1 warrants no interference.

6. Considering the submissions made by learned counsel for the parties and on perusal of the record, it appears that there is a boundary dispute between the parties with regard to Plot Nos. 150 and 154, although none of the parties dispute title of the other over their respective lands. It also appears that there has already been 30% construction made by the Petitioner, as held by both the Courts. In that situation, learned Appellate Court while adjudicating the matter, should have been more careful in discussing the comparative inconvenience to be caused to the parties if an order of injunction in the form of status quo is passed. Although, learned Appellate Court has

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discussed ingredients of balance of convenience, but there is no finding to that effect. Further, there is no finding with regard to irreparable loss to be caused to the Plaintiff-Opposite Party, if no interim order of injunction is passed. Further, Mr. Rath, learned counsel for the Petitioner relied upon the case of Kishor Kumar Khaitan and another -vs.- Praveen Kumar Singh reported in (2006) 3 SCC 312 wherein, it is held that learned Court should state the status of the property before directing the parties to maintain an order of status quo.

7. In that view of the matter, this Court feels that the matter requires fresh consideration by learned appellate Court. Accordingly, the impugned order under Annexure-1 is set aside and the matter is remitted back to learned District Judge, Puri for adjudication of F.A.O. No.50 of 2021 afresh giving opportunity of hearing to the parties concerned.

8. With the aforesaid observation and direction, this CMP is disposed of.

Urgent certified copy of this order be granted on proper application.

(K.R. Mohapatra) Judge

Rojalin