Orissa High Court
Amrutakanta Das vs Smt. Snehalata Das And Others .... ... on 10 November, 2025
Author: B.P. Routray
Bench: B.P. Routray
Signature Not Verified
Digitally Signed
Signed by: BASANTA KUMAR BARIK
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 13-Nov-2025 15:20:29
IN THE HIGH COURT OF ORISSA AT CUTTACK
C.M.P. No.400 of 2025
(In the matter of an application under Article 227 of the Constitution of
India)
Amrutakanta Das .... Petitioner
-versus-
Smt. Snehalata Das and others .... Opposite Parties
Advocate(s) appeared in this case:-
For Petitioner : Ms. M. Mishra, Advocate
For Opposite Parties : Mr. U.K. Samal, Advocate
For O.P. No.1
Mr. M.B. Smrutiranjan, Advocate
For O.P. Nos.2 to 4
CORAM: JUSTICE B.P. ROUTRAY
JUDGMENT
th
10 November 2025
B.P. Routray, J.
1. Heard Ms. M. Mishra, learned Advocate for the Petitioner, Mr.
U.K. Samal, learned Advocate for Opposite Party No.1 and Mr. M.B.
Smrutiranjan, learned Advocate for Opposite Parties 2 to 4.
2. Present C.M.P. is directed against the order dated 24.02.2025
passed by the learned Senior Civil Judge (LR & LTV), Jajpur in
C.M.A. No.9 of 2024 (arising out of C.S. No.259 of 2020), wherein the
Signed by: BASANTA KUMAR BARIK
Location: High Court of Orissa, Cuttack
Date: 13-Nov-2025 15:20:29
prayer of Defendant No.5 to expand his petrol pump to the extent of
1650 sq. ft. in northern side over Plot No.687/1504 has been rejected.
3. Present Opposite Party No.1 is the Plaintiff, who filed C.S.
No.259 of 2020 praying for partition over suit schedule properties. The
suit schedule properties include Plot No.687/1504. Present Petitioner is
Defendant No.5 and Opposite Parties 2 to 4 are Defendants 2 to 4.
4. There is an interim order passed by the learned trial court dated
07.03.2022 directing all the parties to maintain status quo in respect of
the suit schedule properties. While said order of status quo is in
operation in respect of the suit schedule properties, Defendant No.5
filed a petition under Section 151 of the C.P.C. in C.M.A. No.9 of 2024
praying for permission in his favour to expand his petrol pump
situating over Plot No.687/1504 to the extent of 1650 sq. ft. towards
northern side on the ground that 1650 sq. ft. to the southern side of the
said Plot No.687/1504 was acquired by the State for expansion of the
road and therefore the necessity arose on the part of the Defendant
No.5 to expand his petrol pump to such extent towards the northern
side. It is also contended by Defendant No.5 that BPCL authorities are
insisting him of such expansion of such petrol pump. Defendant No.5
Signed by: BASANTA KUMAR BARIK
Location: High Court of Orissa, Cuttack
Date: 13-Nov-2025 15:20:29
while praying for expansion of the petrol pump in the northern side to
such extent has also undertaken not to claim any equity over such
extended land of the petrol pump and will abide by the orders passed in
the final decree proceeding.
5. The Plaintiff opposed the claim of the Defendant No.5 by
submitting that such prayer for expansion of the petrol pump to the
northern side is not at all necessary on the part of Defendant No.5 for
the purpose of his business, rather being the same as part of joint
family property, he is trying to grab such property in his favour
pending the partition suit among the co-sharers.
6. It is submitted by Ms. M. Mishra, learned counsel on behalf of
the present Petitioner (Defendant No.5) that learned trial court without
considering the matter in proper perspective raised unnecessary
objections doubting the existence of the petrol pump over the schedule
land and further, when Defendant No.5 is undertaking not to claim any
equity over such portion of land if allowed to be used by him, there is
no reason to refuse his prayer.
Signed by: BASANTA KUMAR BARIK
Location: High Court of Orissa, Cuttack
Date: 13-Nov-2025 15:20:29
7. Mr. Samal, learned counsel appearing for present Opposite Party
No.1 (Plaintiff) submits that present prayer of Defendant No.5 under
Section 151 of the C.P.C. is not at all maintainable in view of express
provision under Order 39 Rule 4 C.P.C. Mr. Samal contends that, the
inherent power of the court under Section 151 of the C.P.C. cannot be
exercised overriding any express provision in the C.P.C. and in the
present case when there is an order of status quo passed by the learned
trial court pending the suit, it is necessary on the part of the Defendant
No.5, if aggrieved, to apply under Rule 4 of Order 39 C.P.C. seeking
variance as sought by him in the present context. It is also submitted on
behalf of the Plaintiff that there being no necessity for expansion of the
petrol pump, the prayer of Defendant No.5 to expand the same is not at
all necessary.
8. Opposite Parties 2 to 4 (Defendants 2 to 4) support the case of
the Defendant No.5.
9. It is true that, the Plaintiff and other Defendants do not dispute
existence of a petrol pump over Plot No.687/1504 run by Defendant
No.5. It is also admitted that an area measuring 1650 sq. ft. abutting the
road running on southern side of said plot was acquired by the State in
Signed by: BASANTA KUMAR BARIK
Location: High Court of Orissa, Cuttack
Date: 13-Nov-2025 15:20:29
the year 2022. What is disputed is that according to Defendant No.5,
such extent of land acquired by the State from southern side of the plot
which was used as a part of the petrol pump run by him need to be
adjusted towards northern side for smooth business of the petrol pump,
and the same is disputed by the Plaintiff that no further expansion of
the petrol pump is at all necessary towards northern side since
Defendant No.5 has failed to satisfy that BPCL is insisting him for
expansion of the area of petrol pump.
10. In the above context, it needs to be mentioned here that when the
existence of the petrol pump over the plot is not disputed and further
the acquisition by the State from southern side of the plot used by the
petrol pump is admitted, the question of necessity of expansion of the
area of the petrol pump to the northern side depends on the requirement
of Defendant No.5. Defendant No.5 being the owner of the petrol
pump is the right person to say if any further area is required for
expansion of the petrol pump towards northern side. The smooth
running of the business is within the domain of the owner and he
therefore is the best person to say if any further necessity is there to
expand the area of petrol pump or not. The Plaintiff therefore cannot
Signed by: BASANTA KUMAR BARIK
Location: High Court of Orissa, Cuttack
Date: 13-Nov-2025 15:20:29
object expansion of the petrol pump as unnecessary towards the
northern side and that BPCL is not insisting for its expansion.
11. Coming to the next objection that the prayer of Defendant No.5
under Section 151 of the C.P.C. is not maintainable in view of the
express provisions under Order 39 Rule 4 of the C.P.C., it is true that
the inherent power of the court under Section 151 of the C.P.C. cannot
be exercised overriding any express provision of the C.P.C. The
Hon'ble Supreme Court in K.K. Velusamy v. N. Palanisamy, (2011)
11 SCC 275, while considering various earlier decisions, have
delineated the guidelines for exercise of power under Section 151 of
the C.P.C. as follows:-
"12. xx .. xx .. xx .. The scope of Section 151 has been explained by
this Court in several decisions [see Padam Sen v. State of U.P. [AIR
1961 SC 218 : (1961) 1 Cri LJ 322] , Manohar Lal Chopra v. Seth
Hiralal [AIR 1962 SC 527] , Arjun Singh v. Mohindra Kumar [AIR
1964 SC 993], Ram Chand and Sons Sugar Mills (P) Ltd. v.
Kanhayalal Bhargava [AIR 1966 SC 1899], Nain Singh v. Koonwarjee
[(1970) 1 SCC 732], Newabganj Sugar Mills Co. Ltd. v. Union of India
[(1976) 1 SCC 120 : AIR 1976 SC 1152] , Jaipur Mineral Development
Syndicate v. CIT [(1977) 1 SCC 508 : 1977 SCC (Tax) 208 : AIR 1977
SC 1348] , National Institute of Mental Health & Neuro Sciences v. C.
Parameshwara [(2005) 2 SCC 256] and Vinod Seth v. Devinder Bajaj
[(2010) 8 SCC 1 : (2010) 3 SCC (Civ) 212] ]. We may summarise them
as follows:
Signed by: BASANTA KUMAR BARIK
Location: High Court of Orissa, Cuttack
Date: 13-Nov-2025 15:20:29
(a) Section 151 is not a substantive provision which creates or
confers any power or jurisdiction on courts. It merely recognises the
discretionary power inherent in every court as a necessary corollary
for rendering justice in accordance with law, to do what is "right"
and undo what is "wrong", that is, to do all things necessary to
secure the ends of justice and prevent abuse of its process.
(b) As the provisions of the Code are not exhaustive, Section
151 recognises and confirms that if the Code does not expressly or
impliedly cover any particular procedural aspect, the inherent power
can be used to deal with such situation or aspect, if the ends of
justice warrant it. The breadth of such power is coextensive with the
need to exercise such power on the facts and circumstances.
(c) A court has no power to do that which is prohibited by law
or the Code, by purported exercise of its inherent powers. If the
Code contains provisions dealing with a particular topic or aspect,
and such provisions either expressly or by necessary implication
exhaust the scope of the power of the court or the jurisdiction that
may be exercised in relation to that matter, the inherent power
cannot be invoked in order to cut across the powers conferred by the
Code or in a manner inconsistent with such provisions. In other
words the court cannot make use of the special provisions of
Section 151 of the Code, where the remedy or procedure is provided
in the Code.
(d) The inherent powers of the court being complementary to
the powers specifically conferred, a court is free to exercise them
for the purposes mentioned in Section 151 of the Code when the
matter is not covered by any specific provision in the Code and the
exercise of those powers would not in any way be in conflict with
what has been expressly provided in the Code or be against the
intention of the legislature.
Signed by: BASANTA KUMAR BARIK
Location: High Court of Orissa, Cuttack
Date: 13-Nov-2025 15:20:29
(e) While exercising the inherent power, the court will be
doubly cautious, as there is no legislative guidance to deal with the
procedural situation and the exercise of power depends upon the
discretion and wisdom of the court, and in the facts and
circumstances of the case. The absence of an express provision in
the Code and the recognition and saving of the inherent power of a
court, should not however be treated as a carte blanche to grant any
relief.
(f) The power under Section 151 will have to be used with
circumspection and care, only where it is absolutely necessary,
when there is no provision in the Code governing the matter, when
the bona fides of the applicant cannot be doubted, when such
exercise is to meet the ends of justice and to prevent abuse of
process of court."
12. Rule 4 of Order 39 of the C.P.C. prescribes the provision for
variance of the interlocutory order. Order 39 Rule 4 of the C.P.C. reads
as follows:-
"4. Order for injunction may be discharged, varied or set
aside.--Any order for an injunction may be discharged, or
varied, or set aside by the Court, on application made thereto
by any party dissatisfied with such order:
[Provided that if in an application for temporary
injunction or in any affidavit supporting such application, a
party has knowingly made a false or misleading statement in
relation to a material particular and the injunction was
granted without giving notice to the opposite party, the Court
shall vacate the injunction unless, for reasons to be recorded,
Signed by: BASANTA KUMAR BARIK
Location: High Court of Orissa, Cuttack
Date: 13-Nov-2025 15:20:29
it considers that it is not necessary so to do in the interests of
justice:
Provided further that where an order for injunction has
been passed after giving to a party an opportunity of being
heard, the order shall not be discharged, varied or set aside on
the application of that party except where such discharge,
variation or setting aside has been necessitated by a change in
the circumstances, or unless the Court is satisfied that the
order has caused undue hardship to that party.]"
13. Looking to the prayer of the Defendant No.5 minutely, it can
necessarily be said that he does not want to vary the interim order of
status quo directed by the learned trial court in respect of the suit
properties, but he requires permission to use 1650 sq. ft. of land to the
northern side of his petrol pump for smooth running of his business.
The suit schedule land as mentioned in the plaint is huge covering
number of plots in different lots. What Defendant No.5 is seeking only
1650 sq. ft. in Plot No.687/1504 to be used for the purpose of running
of his petrol pump smoothly with the undertaking not to claim any
equity thereof or not to claim any right of allotment of the same during
final decree proceeding. Therefore, the prayer of Defendant No.5 under
section 151 in said context cannot be said as unsustainable. It needs to
be mentioned here that the possession of Defendant No.5 in respect of
running of the petrol pump over Plot No.687/1504 is not disputed by
Signed by: BASANTA KUMAR BARIK
Location: High Court of Orissa, Cuttack
Date: 13-Nov-2025 15:20:29
any of the parties and it is true that Defendant No.5 has undertaken in
his petition to dismantle the constructions if any made by him over said
extended area of 1650 sq. ft. in future as and when directed.
14. It is admitted at the bar that at present the area towards northern
side of Plot No.687/1504 remains vacant and not used by any of the
parties. Therefore, no harm can be done to any of the parties if such
land measuring 1650 sq. ft. is extended for use of petrol pump by
Defendant No.5 pending the suit.
15. In the result, the C.M.P. is allowed and the impugned order is set
aside. Defendant No.5 is permitted to use an area measuring 1650 sq.
ft. as prayed by him in the petition dated 31.01.2024 (Annexure-8) for
use of the petrol pump and he will not claim any equity for such
extended land in future or any constructions made thereof pending
adjudication of the rights of the parties in the suit. It is further observed
that if necessary he will vacate such extended portion of the land as
and when directed by the court.
(B.P. Routray)
Judge
B.K. Barik/Secretary
