Orissa High Court
Paramananda Pradhan vs Laxmidhar Pradhan @ Rath on 20 August, 2025
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 1150 of 2024
(An Application under Articles 226 & 227 of the Constitution
of India)
Paramananda Pradhan ...... Petitioner
-Versus-
Laxmidhar Pradhan @ Rath
and others .... Opposite Parties
_____________________________________________
For Petitioner : Mr. T. Panigrahi, Advocate
For Opp. Parties : Mr. S. Mishra, Advocate
______________________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
20th August, 2025
SASHIKANTA MISHRA, J.
The petitioner is the defendant No.1 in C.S. No. 85
of 2015 pending in the Court of learned Civil Judge
(Senior Division), Nimapara. In the present application
filed under Article 227 of Constitution of India, he
questions the correctness of order dated 30.07.2024
passed by the learned Additional District Judge,
Nimapara in FAO No. 36 of 2022 whereby, the order of
injunction passed by the trial Court was confirmed.
2. The facts, relevant only to decide the present
application are that the aforementioned suit has been
filed by the plaintiff-Opposite Party for declaration,
partition and permanent injunction. It is claimed that the
plaintiff has a positive right over the suit schedule
property which stands recorded jointly in his name along
with others. One Achyut Pradhan has one eighth share.
He died living behind his wife, Suma Bewa and two
daughters, Biki Dei and Panchei Dei. The successors of
Achyut Pradhan, for their legal necessity, executed a
registered sale deed dated 19.07.1982 in respect of their
share over schedule 'A' and 'B' properties in favour of the
plaintiff for consideration followed by delivery of
possession. Thus, the plaintiff became entitled to one
eighth share of Achyut over the schedule properties and
has joint possession along with others. The property
under 'A' schedule, being the ancestral joint homestead
and Bagayat land has not been partitioned by metes and
bounds. As such, the defendants have no exclusive
heritable right to alienate the properties without consent
of the plaintiff. The defendant No.1, however obtained
registered sale deed dated 25.01.2014 in respect of A and
B schedule property from defendant No.2 exceeding his
share by practicing fraud. It is therefore, contended that
defendant No. 1 has no right, title, interest and
possession over the suit land. Defendant Nos. 1 and 2
threatened the plaintiff to interfere with his joint
possession and to make illegal construction over the
property by evicting the plaintiff on the suit land.
The plaintiff complained before the police but, to no
avail. The plaintiff was also requested for partition but
defendant No.1 refused and openly threatened to evict
the plaintiff and to interfere with his possession. Hence,
the suit.
3. The case of defendant No.1 is that the suit is barred for
non-joinder of necessary parties i.e., the successors of
Achyut. The plaintiff changed his surname Rath to
Pradhan. His father's name is Brahmananda Rath.
Taking advantage of the wrong recording in the ROR, the
plaintiff has filed the suit by giving a wrong genealogy.
The suit property is recorded in the name of Achyut
Pradhan. The plaintiff has never been in possession over
the suit property nor has any right, title, interest or
possession. The suit plots are recorded jointly and the
parties have been in amicable possession in separate
residence since the time of their ancestors.
4. Pending disposal of the suit, the plaintiff filed an
application being I.A. No. 53 of 2015 under Order 39
Rules 1 and 2 with prayer for injunction. Said application
was subsequently withdrawn. The plaintiff thereafter
moved an application being I.A. 29 of 2022 seeking the
following relief:
"It is therefore prayed that the Honourable Court may
graciously be pleased to pass an order of Injunction
restraining the opposite parties from interfering in the
joint possession of petitioner over the schedule 'A' and
'B' properties or from making any illegal construction
over which act of kindness, the petitioner shall as in
duty bound remain ever pray'"
The defendant No.1 filed his objection (mentioned as
rejoinder affidavit) to the I.A. filed by the plaintiff. By
order dated 19.08.2022, the trial Court allowed the
application by directing both parties to maintain status
quo in respect of possession and to not make any new
construction over the suit land till final disposal of the
suit.
5. Being aggrieved, defendant No.1 filed appeal before the
District Court being FAO No. 36 of 2022. The lower
appellate Court, after going through the facts of the case
did not find any infirmity in the order passed by the trial
Court so as to interfere. Accordingly, both parties were
directed not to make any construction over the suit land
and interfere in each other's possession till disposal of
the suit. Said order is impugned in the present
application.
6. Heard Mr. T. Panigrahi, learned counsel for the
defendant No.1 and Mr. S. Mishra, learned counsel
appearing for the plaintiff.
7. Mr. Panigrahi would argue that the application for
injunction filed by the plaintiff having been withdrawn
without any liberty granted by the Court to file a fresh
application, his subsequent application claiming the
same relief could not have been entertained as the same
would be hit by the principle of res-judicata. Mr.
Panigrahi elaborates his argument by submitting that the
principle of res judicata also applies to interlocutory
applications. On merits, Mr. Pangrahi would argue that
the finding of the trial Court that sale deed dated
25.08.2014 was not acted upon is not valid and beyond
the materials on record. The status of the plaintiff is in
itself doubtful, as he is not the son of the Achyut
Pradhan but of one Brahmananda Rath and the suit was
filed by him taking advantage of the wrong recording
made in the Hal settlement records. The plaintiff is
neither in possession nor has any right or title over the
suit properties. Therefore, any prohibitory order passed
against the defendant No.1, who is in possession, would
cause him serious prejudice, as he has been residing in a
dilapidated thatched house with his family which needs
immediate renovation.
8. Per contra, Mr. Mishra would argue that the
application in question having been filed seeking
injunction against the defendants, the principle of res
judicata would not apply. He would further argue that
the dispute relating to paternity of the plaintiff is a matter
to be decided during trial on the basis of evidence. It is,
prima facie, proved that the property is joint ancestral
property of the parties and has been recorded jointly in
the names of the co-owners. The plaintiff is also in joint
possession along with other co-owners. Defendant No.1
has executed a sale deed in favour of defendant No. 2
exceeding his share by practicing fraud though said sale
deed has not yet been acted upon. Since he has been
threatening to evict the plaintiff and to make
construction over the suit property, an order of
injunction is necessary to preserve the property till
disposal of the suit.
9. The first question that falls for consideration is
whether the application (I.A. 29 of 2022) is hit by the
principle of res judicata as similar application (I.A. 53 of
2015) was permitted to be withdrawn by the trial Court
without granting any liberty. There is no quarrel with the
proposition that the principle of res judicata applies not
only to suits disposed of but can also be applied at
different stages of the same suit.
10. Coming to the facts of the case at hand, it is seen
that in the first application i.e. I.A. 53 of 2015, the
plaintiff had sought injunction against the defendants
from interfering in his joint possession or for evicting
him, alienating any portion of the property or making any
illegal construction or changing the nature and character
of the suit land. In the subsequent application, as per the
prayer already quoted above, the plaintiff asked for an
injunction to restrain the defendants from interfering in
his joint possession or from making any illegal
construction. In the earlier application, it is mentioned
under Paragraph-5 that on 24.04.2015 the defendants
gave open threat to the plaintiff to interfere in his joint
possession or to evict him from the property by force and
to make illegal construction over the same or to alienate
any portion to strangers or outsiders.
11. For reason best known to the plaintiff, said
application was withdrawn. It is stated at the bar that no
liberty was granted. In the subsequent application, the
plaintiff has stated that defendant No.1 joined hands with
defendant No.2, gave similar threat to the plaintiff on
13.12.2021. The matter was reported to the police station
and because of intervention by police, the defendants
remained silent for three months. Again, on 16.03.2021,
they threatened the plaintiff. Thus, it is evident that the
cause of action for moving application for injunction on
the first occasion was different from the cause of action
for moving the subsequent application. It cannot,
therefore, be said that withdrawal of the suit, even sans
any liberty, would operate as res judicata for all times to
come. More importantly, the earlier application for
temporary injunction was not decided on merit and it was
simply withdrawn. Doctrine of res-judicata typically
applies to the matters already decided on merit, which is
not the state of affairs in the present case. Further, a
relief of temporary injunction is interlocutory in nature
and may be considered afresh depending on the change
of events and circumstances. These orders can never be
treated as final decisions on the rights of the parties. In
other words, if the situation gets altered significantly
since the disposal of the first application, the Court may
consider a fresh or new application for temporary
injunction.
That apart, when a property is brought into dispute
and is pending adjudication, it is necessary, in the
interest of justice, to preserve the same till its final
disposal to prevent multiplicity of proceedings and
unnecessary legal complications. This Court is therefore,
unable to accept the contention that the subsequent
application was barred by res judicata.
12. Coming to the merits of the case, this Court finds
that the trial Court as well as the lower appellate Court
have meticulously examined the contentions of both
parties and the facts and circumstances of the case and
the position of law has also been considered and
discussed in detail. The trial Court has rightly held that
the question of adoption of the plaintiff is to be decided in
the suit and the defendants have not been able to show
that the plaintiff has got any property from his original
father, as his natural son. Prior to that, if any party is
allowed to alienate the suit property or cause disturbance
thereon or make any construction, it would create
multiplicity of proceeding and the plaintiff would sustain
irreparable loss. This Court fully concurs with such
reasoning. The lower appellate Court has also concurred
with such finding and held that in the circumstances it
would be proper to direct both parties to preserve the
property as it is, till their rights are decided in the suit.
13. From what has been narrated before, this Court
finds nothing wrong in the orders passed by the Courts
below so as to be persuaded to interfere therewith.
14. In the result, the CMP being devoid of merit is
therefore, dismissed.
...............................
Sashikanta Mishra,
Judge
Deepak
