Orissa High Court

Sulochana Sahoo vs Raghunath Sahoo And Another .... ... on 13 October, 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: 14-Oct-2025 13:48:24




                                      IN THE HIGH COURT OF ORISSA AT CUTTACK
                                                      C.M.P. No.937 of 2025
                            (In the matter of an application under Article 227 of the Constitution of
                            India)

                             Sulochana Sahoo                           ....                   Petitioner
                                                                    -versus-
                             Raghunath Sahoo and another               ....            Opposite Parties

                            Advocate(s) appeared in this case:-

                                          For Petitioner         : Mr. B. Tripathy, Advocate

                                          For Opposite Parties   : Ms. S. Mohanty, Advocate
                                                                   For O.P. Nos.1 & 2

                                            CORAM: JUSTICE B.P. ROUTRAY
                                                             JUDGMENT

13th October 2025

B.P. Routray, J.

1. Heard Mr. B. Tripathy, learned Advocate for the Petitioner and

Ms. S. Mohanty, learned Advocate for Opposite Parties 1 & 2.

2. Present C.M.P. is directed against the order dated 21.11.2024 of

the learned trial court which was confirmed vide order dated

06.03.2025 of the first appellate court in F.A.O. No.174 of 2024.

3. Present Petitioner is the Plaintiff, who filed C.S. No.872 of 2021

praying for partition, declaration, permanent injunction and other

Signed by: BASANTA KUMAR BARIK

Location: High Court of Orissa, Cuttack Date: 14-Oct-2025 13:48:24

consequential reliefs. The case of the Plaintiff is that, the suit schedule

land belonging to their common ancestor, Jogi Sahoo, which was not

partitioned except the amicable partition took place in the year 1965

between the sons of Jogi Sahoo. Late Jogi Sahoo had three sons,

namely, Gangadhar Sahoo, Chakradhar Sahoo, Damodar Sahoo and the

present Plaintiff claims to be the daughter of Gangadhar Sahoo.

However, the Defendants after their appearance filed the written

statement disclosing about earlier suit filed by Damodar and others in

O.S. No.18 of 1971(I), wherein preliminary decree was passed on

12.01.1977 on contest. It is admitted by all the parties that said

preliminary decree dated 12.01.1977 passed in O.S. No.18 of 1971(I)

has not yet been made final and no such final decree proceeding has

been initiated by any of the parties till date.

4. The Plaintiff filed I.A. No.01 of 2021 praying for temporary

injunction under Order 39 Rule 1 & 2, C.P.C. to restrain Defendants 1

& 2 from coming over the suit land. In the opinion of the learned trial

court vide its order dated 21.11.2024 (Annexure-1), the Plaintiff is

unable to disclose a prima facie case in her favour as she suppressed

about the earlier decree passed in O.S. No.18 of 1971. The first

appellate court in his judgment dated 06.03.2025 has confirmed the

Signed by: BASANTA KUMAR BARIK

Location: High Court of Orissa, Cuttack Date: 14-Oct-2025 13:48:24

order of the learned trial court regarding absence of prima facie case in

favour of the Plaintiff and in this regard the first appellate court has

held that in absence of any sort of documents filed by the Plaintiff to

substantiate her case and since the properties have been partitioned

including the suit property that fell into the share of the Plaintiff, she

lacks prima facie case in her favour.

5. Copies of the plaint and WS filed by Defendants 1 & 2 are

produced by Ms. S. Mohanty, learned counsel for the Opposite Parties

for perusal of this Court. It is seen therefrom that the preliminary

decree dated 12.01.1977 passed in O.S. No.18 of 1971 has been clearly

pleaded to counter the case of the Plaintiff in respect of her prayer for

partition. But at the same time, it remains admitted by the parties that

the RoR in respect of Khata No.194 of mouza-Jagamara stands

recorded jointly in the name of the sons of Jogi Sahoo, the common

ancestor. Khata No.194 consists of several plots which implies that the

Plaintiff being the successor of Gangadhar having her share in said

plots prima facie, baring other properties of Jogi Sahoo. Therefore, the

finding of both the courts that the Plaintiff did not have a prima facie

case appears to be a prima facie error on record.

Signed by: BASANTA KUMAR BARIK

Location: High Court of Orissa, Cuttack Date: 14-Oct-2025 13:48:24

6. For entertaining the prayer of temporary injunction pending the

lis in terms of the provisions of Order 39 Rule 1 & 2, C.P.C., the three

essential things, i.e. prima facie case, balance of convenience and

irreparable loss are to be looked into essentially. Prima facie case

means, an arguable case made out on record in favour of the party

seeking the relief. It is explained in State of Kerala v. Union of India,

(2024) 7 SCC 183, that;

"16. xx .. xx .. xx .. Generally speaking, the phrase "prima facie case" is not a term of art and it simply signifies that at first sight the plaintiff has a strong case. According to Webster's International Dictionary, "prima facie case" means a case established by "prima facie evidence", which in turn means the evidence that is sufficient in law to raise a presumption of fact unless rebutted."

7. In Dalpat Kumar v. Prahlad Singh, (1992) 1 SCC 719, the

Hon'ble Supreme Court have held as follows:-

"5. Therefore, the burden is on the plaintiff by evidence aliunde by affidavit or otherwise that there is "a prima facie case" in his favour which needs adjudication at the trial. The existence of the prima facie right and infraction of the enjoyment of his property or the right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established, on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by

Signed by: BASANTA KUMAR BARIK

Location: High Court of Orissa, Cuttack Date: 14-Oct-2025 13:48:24

itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference by the Court would result in "irreparable injury" to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. The third condition also is that "the balance of convenience" must be in favour of granting injunction. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject matter should be maintained in status quo, an injunction would be issued. Thus the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit."

8. In the case at hand, when the record of right admittedly stands

jointly in the name of three sons of Jogi Sahoo and it is admitted that

the Plaintiff is the successor of one of the sons of Jogi Sahoo, such

observation made by the learned trial court as well as the appellate

court that there is no prima facie case in favour of the Plaintiff is not

found sustainable on the face of record. Therefore, taking note of the

Signed by: BASANTA KUMAR BARIK

Location: High Court of Orissa, Cuttack Date: 14-Oct-2025 13:48:24

pleadings in the plaint as well as the counter averments made in the

written statement, where the question of partition and passing of earlier

preliminary decree in O.S. No.18 of 1971 remains admitted, it would

be better in the interest of justice that the first appellate court should