Orissa High Court
Mukul Kumar vs Laxmidhar Samantaray & Anr. .... ... on 28 October, 2025
Author: B.P. Routray
Bench: B.P. Routray
Signature Not Verified
Digitally Signed
Signed by: SANGRAM DAS
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 06-Nov-2025 17:38:47
IN THE HIGH COURT OF ORISSA AT CUTTACK
C.M.P. No.297 of 2025
(In the matter of an application under Article 227 of the Constitution
of India)
Mukul Kumar .... Petitioner
-versus-
Laxmidhar Samantaray & Anr. .... Opposite Parties
Advocate(s) appeared in this case:-
For Petitioner : Mr. P.K.Rath, Sr.Advocate
For Opposite Parties : Mr. S.R.Mahapatra, Advocate
CORAM: JUSTICE B.P. ROUTRAY
JUDGMENT
28th October 2025
B.P. Routray, J.
1. Heard Mr. P.K.Rath, learned Senior Counsel for the Petitioner
and Mr. S.R.Mahapatra, learned counsel for Opposite Parties.
2. Present CMP is directed challenging impugned judgment
dated 13th February 2025 passed in F.A.O. No.99 of 224 of the
Location: High Court of Orissa, Cuttack
learned 2nd Additional District Judge, Bhubaneswar (Annexure-1)
and the order of learned Trial Court dated 26th June 2024 (Annexure-
8) passed in I.A. No.01 of 2024 (arising out of C.S. No.455 of 2024),
wherein the prayer for temporary injunction of the Plaintiff under
Order 39 Rule 1 & 2 of the CPC has been refused.
3. Present Petitioner is the Plaintiff who filed the aforesaid suit
praying for permanent injunction against Defendant No.2 not to
evict him without due process of law and not to interact the business
of the Plaintiff. The Plaintiff's case is based on a house rent
agreement dated 20th August 2022 executed between Defendant
No.1 and himself to be effective for a period of four years then to
run a commercial shop (IMFL OFF SHOP). The suit property is a
shop house situating over Plot No.298/2087. The suit plot was
earlier owned by Defendant No.1 and others as a joint family
property which was subsequently sold to Defendant No.2 on 16 th
February 2024 and the disputes started thereafter.
4. Admittedly, the Plaintiff was running an IMFL OFF Shop in
the suit house situating over the suit plot having license obtained
from the Competent Authority dated 1st April 2023 for a period of
Location: High Court of Orissa, Cuttack
one year which was then extended up-to 31st October 2023 and
finally up-to 11th September 2024. This license of IMFL OFF Shop
granted by the department of Excise, Government of Odisha
mentions about the house rent agreement dated 20th August 2022
executed between Defendant No.1 and the Plaintiff. It is of course
true that the license for running the IMFL OFF shop in the suit
house was not extended after 11th September 2024 for the dispute
pending between the parties in respect of the suit house.
5. According to the Plaintiff, after Defendant No.2 managed to
purchase the suit land from Defendant No.1 and other family
members, he wanted to close down the business of the Plaintiff for
the reason he having another IMFL ON shop adjacent to the suit
house. In such premises the Plaintiff contends that when his
admission into the suit shop house is lawful, Defendant No.2 should
be prohibited from creating any disturbance to his possession unless
and until the Plaintiff is lawfully evicted therefrom.
6. Defendant No.2 after his appearance in the suit has filed his
written statement disputing possession of the Plaintiff over the suit
house by raising his counter claim for eviction of the Plaintiff from
Location: High Court of Orissa, Cuttack
the suit shop house. As per Defendant No.2, the Plaintiff's induction
in the shop house as a tenant under Defendant No.1 is disputed since
there was a lease deed executed on 21st April 2022 by Defendant
No.1 with one Ashok Kumar Swain. Thus it is contended by the
Defendants that the Plaintiff was never in lawful possession of the
suit house and he managed the Government authorities to get the
IMFL OFF Shop license in his favour by producing the forged house
rent agreement dated 20th August 2022.
7. In such background of the facts in controversy, both the Trial
Court and First Appellate Court have refused to grant temporary
injunction in favour of the Plaintiff with regard to his possession
over the suit shop house mainly on the ground of disputing the house
rent agreement dated 20th August 2022. As per the Trial Court, the
Plaintiff did not produce any valid house rent agreement in support
of his possession over the suit shop house and according to the
findings of the First Appellate Court the house rent agreement dated
20th August 2022 being an unregistered one cannot confer any right
in favour of the Plaintiff to retain his lawful possession over the suit
shop house.
Location: High Court of Orissa, Cuttack
8. It is well-settled in law that a person in lawful possession of
the property can maintain the injunction against the owner unless
and until he is evicted in due process of law. In this regard, it is
observed in Premji Ratansey Shah v. Union of India, (1994) 5 SCC
547, as follows;
"The question, therefore, is whether an injunction can
be issued against the true owner. Issuance of an order
of injunction is absolutely a discretionary and equitable
relief. In a given set of facts, injunction may be given to
protect the possession of the owner or person in lawful
possession. It is not mandatory that for mere asking
such relief should be given. Injunction is a personal
right under Section 41(j) of the Specific Relief Act,
1963; the plaintiff must have personal interest in the
matter. The interest of right not shown to be in
existence, cannot be protected by injunction."
In Anathula Sudhakar v. P. Buchi Reddy, (2008) 4 SCC 594, it has
been stated that;
"In a suit for permanent injunction to restrain the
defendant from interfering with the plaintiff's
possession, the plaintiff will have to establish that as on
the date of the suit he was in lawful possession of the
suit property and the defendant tried to interfere or
disturb such lawful possession. Where the property is a
building or building with appurtenant land, there may
Location: High Court of Orissa, Cuttack
not be much difficulty in establishing possession. The
plaintiff may prove physical or lawful possession,
either of himself or by him through his family members
or agents or lessees/licensees. Even in respect of a land
without structures, as for example an agricultural land,
possession may be established with reference to the
actual use and cultivation. The question of title is not in
issue in such a suit, though it may arise incidentally or
collaterally."
9. In the case at hand, the admitted fact remains that Defendant
No.2 purchased the suit land on 16th February 2024 from Defendant
No.1 and others. The rent agreement dated 20th August 2022 as
relied on by the Plaintiff has been admittedly acknowledged by the
authorities of Government in Excise Department to grant licence for
IMFL OFF Shop in favour of the Plaintiff over the suit shop house.
The contention of Defendants that prior to execution of such alleged
house rent agreement dated 20th August 2022 a lease deed was
earlier executed by Defendant No.1 with one Ashok Kumar Swain
dated 21st April 2022 is not substantiated by any material to show
prima facie possession of Ashok Kumar Swain over the suit shop
house. It appears that a lease agreement dated 21st April 2022 as
contended by the Defendants is though came into existence prior to
the house rent agreement dated 20th August 2022 still the running of
Location: High Court of Orissa, Cuttack
IMFL OFF shop over the suit house by the Plaintiff is never
disputed by the Defendants which dispels the contention of
Defendants with regard to possession of the Plaintiff over the suit
shop house.
10. It is true that when a new purchaser purchases a property
wherein there was a tenant previously existing, the option lies
between either to continue with the tenancy by execution of fresh
tenancy agreement or to evict the tenant by due process of law, at the
choice of the new owner. So once it is found that the Plaintiff was
running an IMFL OFF Shop from 1st April 2023 over the suit shop
house the prima facie possession of the Plaintiff over the suit shop
house is substantiated by the fact of grant of license by Competent
Authority of Government. This is further fortified in absence of any
material in respect of possession of alleged Ashok Kumar Swain
over the suit shop house. Thus, it can be safely opined that the
Plaintiff has a prima facie case in his favour to proceed in the suit
against the Defendants.
11. It is explained in State of Kerala v. Union of India, (2024) 7
SCC 183, that three golden principles Viz. of prima facie case,
Location: High Court of Orissa, Cuttack
balance of convenience, and irreparable loss has to be in favour of
the party seeking temporary injunction and it is explained as follows;
"12. The globally acknowledged golden principles,
collectively known as "the triple-test", are followed by the
courts across the jurisdictions as the prerequisites before a
party can be mandatorily injuncted to do or to refrain from
doing a particular thing. These three cardinal factors, that are
deeply embedded in the Indian jurisprudence as well, are:
12.1. A "prima facie case", which necessitates that as per
the material placed on record, the plaintiff is likely to
succeed in the final determination of the case;
12.2. "Balance of convenience", such that the prejudice
likely to be caused to the plaintiff due to rejection of the
interim relief will be higher than the inconvenience that the
defendant may face if the relief is so granted; and
12.3. "Irreparable injury", which means that if the relief
is not granted, the plaintiff will face an irreversible injury
that cannot be compensated in monetary terms.
XX .. xx .. xx ..
16. Coming to the first factor i.e. the prima facie case, the
plaintiff State has raised various substantive questions of
constitutional interpretation. 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."
Location: High Court of Orissa, Cuttack
12. In Best Sellers Retail (India) (P) Ltd. v. Aditya Birla Nuvo
Ltd., (2012) 6 SCC 792, it has held that;
"26. It has been held by this Court in Kishoresinh Ratansinh
Jadeja v. Maruti Corpn. [(2009) 11 SCC 229 : (2009) 4 SCC
(Civ) 506] that it is well established that while passing an interim
order of injunction under Order 39 Rules 1 and 2 CPC, the Court
is required to consider:
(i) whether there is a prima facie case in favour of the
plaintiff;
(ii) whether the balance of convenience is in favour of
passing the order of injunction; and
(iii) whether the plaintiff will suffer irreparable injury if
an order of injunction would not be passed as prayed for.
Hence, we only have to consider whether these well-settled
principles relating to grant of temporary injunction have been
kept in mind by the trial court and the High Court.
Xx .. xx .. xx ..
29. Yet, the settled principle of law is that even where prima
facie case is in favour of the plaintiff, the Court will refuse
temporary injunction if the injury suffered by the plaintiff on
account of refusal of temporary injunction was not irreparable.
30. In Dalpat Kumar v. Prahlad Singh [(1992) 1 SCC 719] this
Court held: (SCC p. 721, para 5)
"5. ... Satisfaction that there is a prima facie case by
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
Location: High Court of Orissa, Cuttack
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."
Xx .. xx .. xx ..
36. To quote the words of Alderson, B. in Attorney
General v. Hallett [(1857) 16 M & W 569 : 153 ER 1316] :
(ER p. 1321)
"... I take the meaning of irreparable injury to be that
which, if not prevented by injunction, cannot be
afterwards compensated by any decree which the
court can pronounce in the result of the cause."
13. The document produced on record when shows that the
Plaintiff was running an IMFL OFF Shop over the suit house being
duly permitted by the Competent Authority, and such documents of
license granted by the Competent Authority remain undisputed, the
balance of convenience leans in favour of the Plaintiff for an order
of temporary injunction in his favour since the loss likely to be
caused on his part deprived from running his business would be
more and such loss sustained by the Plaintiff in his business cannot
be compensated subsequently or otherwise.
14. It needs to be mentioned here that Defendant No.2 being the
subsequent purchaser of the suit property must be aware of
Location: High Court of Orissa, Cuttack
possession of the Plaintiff over the suit house and when prima facie
the Plaintiff has established his possession over the suit house being
inducted as a tenant by the previous owner, the same can be well
termed as lawful possession to presume in favour of the Plaintiff.
15. In view of the discussions made above, the CMP is allowed
directing both parties to maintain status-quo over the suit shop house
in respect of possession of the Plaintiff over the same till final
decision in the suit. It is made clear that any such observation made
in this order or by the First Appellate Court or by the Trial Court
while dealing with the prayer of the Plaintiff under Order 39 Rule 1
& 2 of the CPC, shall not influence the final decision.
(B.P. Routray)
Judge
S.Das/Sr.Steno
