Rabindra Panigrahi vs Gouranga Panigrahi & Others ..... Opp. ...
2025 Latest Caselaw 11122 Ori

Orissa High Court

Rabindra Panigrahi vs Gouranga Panigrahi & Others ..... Opp. ... on 12 December, 2025

Author: Sashikanta Mishra

Bench: Sashikanta Mishra

             IN THE HIGH COURT OF ORISSA AT CUTTACK
                          CMP No. 735 of 2024 &
                           CMP No. 736 of 2024

      [Applications under Article 227 of the Constitution of India]

AFR   CMP No. 735 of 2024
      Rabindra Panigrahi                        ....     Petitioner

                                     -Versus-

      Gouranga Panigrahi & others               .....   Opp. Parties

      CMP No. 736 of 2024
      Samira Panigrahi & another                ....     Petitioners

                                     -Versus-

      Gouranga Panigrahi & others               .....   Opp. Parties


      Advocate(s) appeared in this case:


      For Petitioner(s)   :     M/s. J.R. Deo, A.K. Das &
                                A. Moharana & A.P. Bose, Advocates.

      For Opp.Parties :     M/s. S.S. Chaini &
                            S.K. Sahoo, Advocates
      _________________________________________________________
      CORAM:
                JUSTICE SASHIKANTA MISHRA

                                 JUDGMENT

th 12 December, 2025

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

application filed by the defendants seeking permission to

complete the so-called half-constructed house as it would

alter the nature of the property and thereby defeat the very

purpose of the partition suit.

9. After hearing learned counsel for the parties, this

Court finds that the first point for consideration is the

correctness of the order dated 03.07.2023 passed by the

Trial Court directing both parties to maintain status quo,

which was confirmed by the learned District Judge in

appeal by order dated 20.02.2024. It has been argued that

such order could not have been passed on an application

filed by the plaintiffs subsequent to rejection of identical

prayer made in a previous application. As already stated,

the first application for injunction being I.A. No. 25 of 2023

was rejected by order dated 15.05.2023. Reading of the

said order reveals that the Trial Court was not convinced

on the facts placed before it that the necessary ingredients

for grant of injunction were in existence. In particular, the

Trial Court noted that there was lack of specific pleadings

and averments as regards the particular plot on which the

defendants were attempting to make construction. There

was also absence of pleadings with regard to date of arising

of the cause of action. The Trial Court also weighed the

comparative mischief likely to be caused by granting an

order of injunction and refusing it. As such, the application

was rejected. It cannot be said that the application was

rejected on technical grounds. Be that as it may, the

second application was filed being I.A. No.51 of 2023 by

the plaintiffs stating that after dismissal of the earlier

application the defendants were making preparation to

construct a house over the suit land for which they

approached the Sub-Divisional Magistrate, Bhadrak to

initiate a proceeding under Section 144 of Cr.P.C. in view

of the summer holidays of the Court. In fact, the learned

SDM also directed both parties to maintain status quo.

When the said order was in operation, the defendant

allegedly gathered house building materials and started

digging earth for construction of the new house. Whether

the allegations are correct or not is a different matter, but

it can certainly be said that if true, it was a different cause

of action that had arisen after disposal of the earlier

application.

10. In the case of Arjun Singh v. Mohindra Kumar1,

the Supreme Court held that rejection of an interim

application does not bar a subsequent application based

on new facts.

"14. It is needless to point out that interlocutory orders are of various kinds; some like orders of stay, injunction or receiver are designed to preserve the status quo pending the litigation and to ensure that the parties might not be prejudiced by the normal delay which the proceedings before the court, usually take. They do not, in that sense, decide in any manner the merits of the controversy in issue in the suit and do not, of course, put an end to it even in part. Such orders are certainly capable of being altered or varied by subsequent applications for the same relief, though normally only on proof of new facts or new situation which subsequently emerge. As they do not impinge upon the legal rights of parties to the litigation the principle of res judicata does not apply to the findings on which these orders are based, though if applications were made for relief on the same basis after the same has once been disposed of the court would be Justified in rejecting the same as an abuse of the process of court. There are other orders which are also interlocutory but would fall into a different category. The difference from the ones just now referred to lies in the fact that they are not directed to maintaining the statusquo, or to preserve the property pending the final adjudication but are designed to ensure the just, smooth, orderly and expeditious disposal of the suit. They are interlocutory in the sense that they do not decide any matter in issue arising in the suit, nor put an end to the litigation. The case of an application under 0. IX, Rule 7 would be an illustration of this type. If an application made under the provisions of that rule is dismissed and an appeal were filed against the decree in the suit in which such application were made, there can be no doubt that the propriety of

1963 SCC OnLine SC 43 : (1964) 5 SCR 946 : AIR 1964 SC 993

the order rejecting the reopening of the proceeding and the refusal to relegate the party to an earlier stage might be canvassed in the appeal and dealt with by the appellate court. In that sense, the refusal of the court to permit the defendant to "set the clock back" does not attain finality. But what we are concerned with is slightly different and that is whether the same Court is finally bound by that order at later stages so as to preclude its being reconsidered. Even if the rule of res judicata does not apply it would not follow that on every subsequent day which the suit stands adjourned for further hearing, the petition could be repeated and fresh orders sought on the basis of identical facts. The principle that repeated applications based on the same facts and seeking the same reliefs might be disallowed by the court does not however necessarily rest on the principle of res judicata. Thus, if an application for the adjournment of a suit is rejected, a subsequent application for the same purpose even if based on the same facts, is not barred on the application of any rule of res judicata, but would be rejected for the same grounds on which the original application was refused. The principle underlying the distinction between the rule of res judicata and a rejection on the ground that no new facts have been adduced to justify a different order is vital. If the principle of res judicata is applicable to the decision on a particular issue of fact, even if fresh facts were placed before the Court, the bar would continue to operate and preclude a fresh investigation of the issue, whereas in the Other case, on proof of fresh facts, the court would be competent, nay would be bound to take those into account and make an order conformably to the facts freshly brought before the court."

This Court is therefore, unable to accept the

argument that the second application was not

maintainable.

11. Coming to the next ground raised, that is, legality

of passing an order of status quo in the absence of the

necessary ingredients for grant of injunction, it has been

argued that the Trial Court found that the necessary

ingredients are absent and recorded such fact in its order.

Having noted so, it could not have directed both parties to

pass an order of status quo. The District Judge also

confirmed the order of the Trial Court. Mr. Bose, learned

counsel for the defendants has relied upon the following

judgments of the Supreme Court to buttress his contention

as above.

1. Best Sellers Retail (India) (P) Ltd. v. Aditya Birla Nuvo Ltd.2

2. Kishorsinh Ratansinh Jadeja v. Maruti Corpn. 3

3. Dalpat Kumar v. Prahlad Singh4,

Learned counsel for the plaintiffs however, has

argued that the order was passed with the intent of

preserving and protecting the suit property during

pendency of the suit.

(2012) 6 SCC 792

(2009) 11 SCC 229

(1992) 1 SCC 719

12. There is no quarrel with the proposition that in the

absence of the necessary ingredients, such as, prima facie

case, balance of convenience and irreparable loss,

injunction cannot be granted but fact remains that the

application for injunction (I.A. No. 51 of 2023) was filed not

only under the provisions of order XXXIX Rule 1 and 2 but

also Section 151 of C.P.C. It is trite law that Section 151

C.P.C., which saves the inherent powers of the Civil Court,

confers wide power on it to pass such orders as may be

necessary in a particular fact-situation for preservation of

the subject matter of the suit. It cannot therefore, be said

that only because the Court did not find the existence of

the ingredients necessary to pass an order of injunction, it

became powerless to pass any order for protection of the

subject matter of the suit. In fact, reading of the impugned

order would reveal that the Trial Court, despite holding

that the petitioners are not entitled to the relief of

injunction, held that if the defendants continue with their

construction work exceeding their share it may cause great

hardship to the plaintiffs, if equity is claimed. Therefore, in

the interest of justice and for the purpose of preservation of

the suit property, the order of status quo was passed.

Learned District Judge, finding the order of the Trial Court

to be reasonable, concurred with it.

13. Considering the fact that there is an allegation

that the defendants are attempting to make construction

over a portion of the suit land exceeding their share, this

Court is also of the considered view that the status quo

ought to be maintained till disposal of the suit as it would

preserve the property as it is. This is being said for all the

more reason that the suit has been targeted for expeditious

disposal by the learned District Judge.

14. Now, coming to the order of the Trial Court

refusing to grant permission to the defendants to complete

construction of their house, in view of the fact that this

Court also concurs with the order of status quo passed by

the Trial Court and confirmed by the Appellate Court, finds

no illegality in the order of the Trial Court refusing such

permission.

15. In the fitness of things and for ends of justice, it is

necessary that status quo with regard to the suit property

should be maintained till disposal of the suit.

16. Thus, from the analysis of facts, law involved and

the contentions raised, this Court is not persuaded to

interfere with the orders impugned in both the

applications. Both the CMPs are therefore, dismissed.

...............................

Sashikanta Mishra, Judge Orissa High Court, Cuttack The 12th December, 2025/ A.K. Rana, P.A.

Location: HIGH COURT OF ORISSA, CUTTACK Date: 12-Dec-2025 18:44:46