Orissa High Court
(An Application Under Article 227 Of The ... vs Rohit Kumar Prusty .... Opposite Party on 4 July, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
C.M.P. No.195 of 2020
(An application under Article 227 of the Constitution of India, 1950)
Nishamani Sahoo .... Petitioner
-versus-
Rohit Kumar Prusty .... Opposite Party
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Petitioner - Mr. Gajendranath Rout,
Advocate.
For Opposite Party - Mr. M.M. Das,
Advocate.
CORAM:
HON'BLE MR. JUSTICE A.C.BEHERA
Date of Hearing :20.06.2025 :: Date of Judgment :04.07.2025
A.C. Behera, J. This Civil Miscellaneous Petition under Article
227 of the Constitution of India, 1950 has been filed by the petitioner
praying for quashing the final order dated 21.01.2020 (Annexure-13)
passed in F.A.O. No.12 of 2018/02 of 2019 arising out of I.A. No.27
of 2018 by the learned Addl. District Judge-cum-Special Judge
(Vigilance), Dhenkanal.
2. The factual backgrounds of this CMP, which prompted the
petitioner for filing of the same is that, the opposite party in this CMP
i.e. Rohit Kumar Prusty was the plaintiff in the suit vide C.S. No.93
of 2014 and the petitioner in this CMP i.e. Nishamani Sahoo along
with two others i.e. Ajay Kumar Sahoo and Akshay Kumar Sahoo
were the defendants in that suit vide C.S. No.93 of 2014 in the Court
of learned Civil Judge, Dhenkanal.
The petitioner in this CMP was the defendant No.1 in that
suit, vide C.S. No.93 of 2014.
That suit vide C.S. No.93 of 2014 of the O.P. (plaintiff) was
decreed ex parte on dated 15.03.2016 against all the defendants
including the petitioner in this CMP restraining all the defendants
including the petitioner in this CMP permanently from entering into
and creating any disturbance in the peaceful possession and
enjoyment of the plaintiff (O.P. in this CMP) over the suit land.
Thereafter, she (defendant No.1) filed CMA No.13 of 2018
under O.9 R.13 of CPC, 1908 against the plaintiff praying for setting
aside that ex parte decree passed on dated 15.03.2016 in the suit vide
C.S. No.93 of 2014.
In that CMA No.13 of 2018 under O.9 R.13 of the CPC,
1908, the petitioner/defendant No.1 filed an interlocutory application
vide I.A. No.27 of 2018 under O.39 R.1 & 2 read with Section 151 of
the CPC, 1908 against the O.P./plaintiff praying for restraining him
temporarily from entering into the suit land till the disposal of the
CMA No.13 of 2018 under O.9 R.13 of the CPC, 1908.
After hearing from both the sides, learned Civil Judge,
Dhenkanal allowed that I.A. No.27 of 2018 of the
petitioner/defendant No.1 on dated 01.06.2018 on contest against the
O.P./plaintiff and restrained the O.P./plaintiff from entering into the
suit land till the disposal of the CMA No.13 of 2018.
On being dissatisfied with the said order dated 01.06.2018
passed in I.A. No.27 of 2018, the O.P./plaintiff challenged the same
preferring an appeal under O.43 R.1 of the CPC, 1908 vide F.A.O.
No.12 of 2018/02 of 2019.
3. After hearing from both the sides, the Appellate Court i.e.
learned Addl. District Judge-cum-Special Judge (Vigilance),
Dhenkanal allowed that F.A.O. No.12 of 2018/02 of 2019 filed by the
appellant/O.P./plaintiff on contest on dated 21.01.2020 and set aside
the order of temporary injunction passed by the learned Civil Judge,
Dhenkanal in I.A. No.27 of 2018 assigning the reasons that, due to
the passing of an ex parte decree i.e. permanent injunction in C.S.
No.93 of 2014 against the defendant No.1 (petitioner in I.A. No.27 of
2018) and in favour of the plaintiff (O.P. in I.A. No.27 of 2018), the
petitioner in I.A. No.27 of 2018 has no prima facie case in her favour.
Because, ex parte decree passed in favour of the O.P. is in force. For
which, the impugned order i.e. temporary injunction passed by the
learned Civil Judge, Dhenkanal is not sustainable under law.
4. On being aggrieved with the said order of dismissal of
F.A.O. No.12 of 2018/02 of 2019, the petitioner in I.A. No.27 of 2018
challenged the same by filing this CMP praying for quashing it.
5. I have already heard from the learned counsels of both the
sides.
6. In order to quash the impugned order passed in F.A.O.
No.12 of 2018/02 of 2019, during the course of hearing of this CMP,
learned counsel for the petitioner relied upon following decisions i.e.
Nanasaheb Vs. Dattu and others reported in AIR 1992 BOM 24 and
Leela Dhar Gera & Anr. Vrs. Special Judge S.C. S.T. Act/ADJ.
7. It is the undisputed case of the parties that, the O.P. in this
C.M.P. was the plaintiff in the suit vide C.S. No.93 of 2014 and the
petitioner in this CMP was the defendant No.1 in that suit.
That suit, vide C.S. No.93 of 2014 in respect of the suit
properties has already been decreed ex parte in favour of the plaintiff
(O.P. in this CMP) and against the defendant No.1 (petitioner in this
CMP) on dated 15.03.2016 restraining the petitioner in this CMP
permanently from entering into and creating any disturbance in the
peaceful possession and enjoyment of the O.P. in this CMP over the
suit land.
CMA No.13 of 2018 under O.9 R.13 of the CPC, 1908 was
filed by the defendant No.1 (petitioner in this C.M.P) praying for
setting aside that ex parte decree passed in C.S. No.93 of 2014, which
is sub-judice/pending for adjudication. Till yet, the ex parte decree
passed in C.S. No.93 of 2014 in favour of the plaintiff (O.P. in this
CMP) has not been set aside and the same is in force.
During the pendency of the CMA No.13 of 2018 under O.9
R.13 of the CPC, 1908, the petitioner/defendant No.1 had filed I.A.
No.27 of 2018 under O.39 R.1 & 2 read with Section 151 of the CPC,
1908 against the plaintiff arraying him as O.P. praying for injuncting
him temporarily from entering into the suit properties till the final
disposal of the CMA No.13 of 2018, which was allowed by the
learned Civil Judge, Dhenkanal on dated 01.06.2018, to which, in an
appeal vide F.A.O. No.12 of 2018/02 of 2019, the learned Appellate
Court set aside on dated 21.01.2020 on the ground that, due to the
passing of the ex parte decree in respect of the suit properties in
favour of the plaintiff (the O.P. in I.A. No.27 of 2018), the defendant
No.1 (petitioner in I.A. No.27 of 2018) has no prima facie case in her
favour.
8. Now the question arises, whether during the pendency of the
petition under O.9 R.13 of the CPC, 1908 vide CMA No.13 of 2018
filed by the defendant No.1 for setting aside the ex parte decree
passed in the suit vide C.S. No.93 of 2014 against her (defendant
No.1), a petition for temporary injunction vide I.A. No.27 of 2018 in
respect of the suit properties filed by the defendant No.1 against the
plaintiff is entertainable under law, when the main suit vide C.S.
No.93 of 2014 is not in existence?
9. On this aspect, the propositions of law has already been
clarified by the Hon'ble Courts in the ratio of the following
decisions:-
(i) In a case between Kunjabihari Pradhan Vrs. Jayanti
Pradhan reported in 96 (2003) CLT 151 (Para 12), a judgment
delivered by a Court between the parties on relevant issue is binding
on the parties so long as that judgment and decree holds the field. In
that context, it is immaterial whether that judgment was passed on
contest or ex parte.
(ii) In a case between Gelhei Mallik and six others Vrs.
Dibakar Mallik and Seven others reported in 2011 (I) OLR 684,
2011 (I) CLR 948, 111 (2011) CLT 755 & III (2011) CLT
255;when the suit is dismissed and a petition is pending for
restoration of the suit, the Court is not in seisin over the dispute in
respect of the subject-matter of the suit. A petition for temporary
injunction is not entertainable under law.
(iii) In a case between Sayed Basar Alli Vrs. Smt. Urmila
Pattanaik reported in 112 (2011) CLT 1 & IV (2011) Civ.L.T. 91;
when the suit is not in existence and till the application under O.9
R.9 of the CPC, 1908 is allowed for restoration of the suit, Trial
Court becomes functus officio until suit is not restored. No
application for injunction under Section 151 of the CPC is
maintainable.
10. In view of the propositions of law enunciated in the ratio of
the aforesaid decisions, when the suit vide C.S. No.93 of 2014 is not
in existence due to its final disposal through an ex parte decree i.e.
permanent injunction against the defendants including defendant No.1
(petitioner in I.A. No.27 of 2018), a petition for temporary injunction
vide I.A. No.27 of 2018 filed by the petitioner in the CMA No.13 of
2018 (who was the defendant No.1 in C.S. No.93 of 2014) under O.9
R.13 of the CPC, 1908 is not entertainable under law. Because, as per
law, an order for temporary injunction can be granted during the
pendency of a suit.
That apart, when through an ex parte decree passed on dated
15.03.2016 in the suit vide C.S. No.93 of 2014, the petitioner in I.A.
No.27 of 2018 has been restrained permanently from entering into
and from creating any disturbance in the peaceful possession and
enjoyment of the O.P. in I.A. No.27 of 2018 over the case land and
when the said ex parte decree passed in C.S. No.93 of 2014 is in force
without being set aside as yet, then naturally, there is no prima facie
case in favour of the petitioner in I.A. No.27 of 2018, who is
defendant No.1 in C.S. No.93 of 2014.
For which, the question of interfering with the impugned
order passed in F.A.O. No.12 of 2018/02 of 2019 through this CMP
filed by the petitioner/defendant No.1 does not arise. Because, the
impugned order is neither perverse nor unreasonable or illegal for the
reasons assigned above.
So, the decisions relied upon by the learned counsel for the
petitioner indicated in Paragraph No.6 of this judgment are not
applicable to this CMP on facts and law as discussed above.
11. Therefore, there is no merit in the CMP filed by the
petitioner. The same must fail.
12. In result, this CMP filed by the petitioner is dismissed on
contest against the O.P., but without cost.
13. Accordingly, the CMP is disposed of finally.
(A.C. Behera),
Judge.
Orissa High Court, Cuttack.
04.07.2025//Utkalika Nayak//
Junior Stenographer
Signature Not
Verified
Digitally Signed
Signed by: UTKALIKA
NAYAK
Reason: Authentication
Location: High Court of
Date: 04-Jul-2025
15:47:00 C.M.P. No.195 of 2020
