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Orissa High Court

Trilochan Mangaraj vs Rasabihari Pradhan And Others .... ... on 10 April, 2026

                           IN THE HIGH COURT OF ORISSA AT CUTTACK

                                           C.M.P. No.373 of 2024

                    (In the matter of an application under Article 227 of the
                  Constitution of India)

                   Trilochan Mangaraj                          ....             Petitioner
                                                    -versus-
                   Rasabihari Pradhan and others               ....      Opposite Parties

                  Appeared in this case:-
                        For Petitioner          :       Mr. D. Mohapatra, Sr. Advocate
                                                       assisted by Mr. J. Barik, Advocate

                   For Opposite Parties         :            Mr. B. Bhuyan, Sr. Advocate
                                                      assisted by Ms. S. Sahoo, Advocate
                                                      (For the Opposite Party Nos.1 to 4)


                   CORAM:
                   JUSTICE A.C. BEHERA
                                           JUDGMENT

Date of hearing : 16.03.2026 / date of judgment : 10.04.2026

A.C. Behera, J. This Civil Miscellaneous Petition under Article 227 of the

Constitution of India, 1950 has been filed by the petitioner against the

Opposite Parties praying for quashing(setting aside) the impugned order

dated 03.08.2022 (Annexure-4) passed in I.A. No.01 of 2022 arising out

of C.S. No.1424 of 2022 by the learned Civil Judge(Junior Division),

Bhubaneswar and the impugned judgment dated 29.09.2023(Annexure-5) passed in FAO No.102 of 2022 by the learned 5th Additional District

Judge, Khurda at Bhubaneswar.

2. The factual backgrounds of this Civil Miscellaneous Petition,

which prompted the petitioner for filing the same is that, the petitioner

being the plaintiff filed a suit vide C.S. No.1424 of 2022 in the court of

learned Civil Judge(Jr. Division), Bhubaneswar against the Opposite

Parties arraying them as defendants praying for injuncting

them(defendants) permanently from entering into the suit properties and

to injuct them(defendants/Opposite Parties) from making construction

thereon.

3. In that suit vide C.S. No.1424 of 2022, the petitioner(plaintiff)

filed an Interlocutory Application vide I.A. No.01 of 2022 under Order-

39, Rule-1 and 2 read with Section 151 of the C.P.C., 1908 against the

defendants arraying them(defendants) as Opposite Parties praying for

restraining them(Opposite Parties) temporarily from entering into the suit

properties and from making any construction on the suit properties till the

final disposal of the suit vide C.S. No.1424 of 2022 stating that, the

properties under Sabik Khata No.76 were recorded in 1962 settlement in

the names of Nityananda Samal and Kshetrabasi Samal both are the sons

of Late Narrotam Samal, Sarat Chandra Mangaraj son of Late

Banchhanidhi Mangaraj, Kunja Bewa wife of Madan Samal and

Bhagirathi Mangaraj son of Bidyadhar.

The suit properties under Hal Khata No.164 corresponds to Sabik

Khata No.76 of 1962 settlement. The properties under Hal Khata No.164

were recorded in the names of the successors of the recorded tenants of

1962 settlement along with two purchasers thereof.

The Opposite Parties are the purchasers of the properties of Hal

Khata No.164 from different share-holders. Although Opposite Party

No.1 has purchased and recorded his name through mutation, but, his

said purchase and mutation was not within the knowledge of the

petitioner.

The Opposite Party No.1 has also taken power of attorney from

Opposite Party Nos.2 to 4 in respect of the suit properties.

The Opposite Party nos.2 to 4 are also the purchasers of the suit

properties. They(Opposite Party Nos.2 to 4) have executed power of

attorney in favour of the Opposite Party No.1 in respect of the suit

properties. After managing to record the names of the Opposite Parties in

respect of the suit properties in their favour, when they(Opposite Parties)

tried to take possession of the suit properties forcefully and when, the

Opposite Party No.1 cut big Mango tree from Plot No.308 and engaged

huge machinery and labourers for construction of building on the suit

properties and dug plinth and declared that, he along with the other

Opposite Parties will make construction on the same, then, the petitioner

filed the suit vide C.S. No.1424 of 2022 against the Opposite Parties

praying for permanent injunction as well as I.A. for temporary injunction

against the Opposite Parties in order to restrain the Opposite Parties

temporarily from entering into the suit properties and also from making

any construction on the same till the final disposal of the suit vide C.S.

No.1424 of 2022.

4. Having been noticed from the learned trial court in I.A. No.01 of

2022, all the Opposite Parties filed their objections separately taking their

identical stands challenging the prayer for temporary injunction of the

petitioner on the grounds that, all the jointly recorded tenants of suit

Sabik Khata No.76 had partitioned the properties under that Sabik Khata

between them in writing on dated 07.11.1995 through a mutual partition

and on the basis of the such mutual partition, the allotted properties of

Sarat Chandra Mangaraj, Chandradwaja Mangaraj, Iswar Mangaraj and

Maheswar Mangaraj were sold by them through different sale deeds in

favour of the Opposite Parties and accordingly, they(Opposite Parties)

are the owners of the suit properties after purchasing the same from the

above rightful owners, in which, the petitioner has no interest and

possession and they(Opposite Parties) have already mutated their

purchased properties, i.e., suit properties to their names. They(Opposite

Parties) have also made constructions on their purchased suit properties

after obtaining necessary permission from Bhubaneswar Development

Authority(BDA), ORERA etc. by investing a lot of money and the

construction work thereof have already been progressed substantially and

they(Opposite Parties) have already received part amount from the

intending purchasers to sell their intended Duplexes. For which, the

petitioner has no locus standi to file the Interlocutory Application in

order to injunct them(Opposite Parties) temporarily. The petitioner has

filed the suit and I.A. only in order to extract money from them(Opposite

Parties). Therefore, the I.A. filed by the petitioner is liable to be

dismissed.

5. After hearing from both the sides, learned Civil Judge(Jr.

Division). Bhubaneswar dismissed to the I.A. No.01 of 2022 of the

petitioner on dated 03.08.2022(Annexure-4) on contest against the

Opposite Parties assigning the reasons that,

"when the petitioner himself has admitted that, a partition suit vide C.S.

No.1385 of 2013 filed by the mother of the Opposite Party Nos.2 to 4 in respect of

the suit properties is pending in the court of the learned Civil Judge(Sr. Division),

Bhubaneswar, wherein, he(petitioner) in I.A. No.01 of 2022 is a party as

defendant no.4 and when, the fact regarding the pendency of the suit for partition

vide C.S. No.1385 of 2013 in respect of the suit properties is evident from the

certified copy of the plaint of the said suit for partition vide C.S. No.1385 of 2013

and properties involved in the present suit vide C.S. No.1424 of 2022 are also

involved as Schedule-B properties in the earlier suit for partition vide C.S.

No.1385 of 2013 and when, it is the contention of the petitioner that, the Opposite

Parties are the purchasers from the co-sharers and when, a suit for partition vide

C.S. No.1385 of 2013 involving the properties of the I.A. at hand is pending in the

court of learned Civil Judge(Sr. Division), Bhubaneswar, then, the petitioner

could have taken appropriate step seeking relief against the Opposite Parties in

that suit vide C.S. No.1385 of 2013 instead of approaching the learned Civil

Judge(Jr. Division), Bhubaneswar by filing suit vide C.S. No.1424 of 2022 and

when he(petitioner) has filed the suit vide C.S. No.1424 of 2022 for the self-same

properties seeking temporary injunction between the self-same parties, then, in

view of the provisions of law envisaged in Section 41(h) of the Specific Relief Act,

1963, the petitioner is not entitled to get any relief in this I.A. Because, he could

have approached for the equally efficacious relief in the earlier suit for partition

vide C.S. No.1385 of 2013. Therefore, the petitioner is not entitled to get any

relief of temporary injunction. For which, I.A. No.01 of 2022 filed by the

petitioner is dismissed."

6. On being dissatisfied with above impugned order of rejection to

the I.A. No.01 of 2022 passed by the learned Civil Judge(Jr. Division),

Bhubaneswar, he(petitioner) challenged the same preferring FAO No.102

of 2022 under Order-43, Rule-1(r) of the C.P.C., 1908 before the

appellate court being the appellant against the Opposite Parties arraying

them(Opposite Parties) as respondents.

7. After hearing from both the sides, learned 5 th Additional District

Judge, Khurda at Bhubaneswar dismissed to that FAO No.102 of 2022 of

the petitioner as per its judgment dated 29.09.2023(Annexure-5)

confirming the dismissal of the I.A. No.01 of 2022 passed by the learned

Civil Judge(Jr. Division), Bhubaneswar assigning the reasons that,

"when the petitioner/appellant has admitted that, another suit for

partition between them(parties) on being filed by the mother of the Opposite

Party Nos.2 to 4 vide C.S. No.1385 of 2013 is sub-judice and when, prima

facie shows that, Opposite Parties have purchased suit schedule properties

and when, they(Opposite Parties) have mutated their purchased properties to

their names and they have started construction works over their purchased

separately recorded suit properties after obtaining permission from B.D.A. and

ORERA investing a lot of money and their such constructions have been

progressed substantially and when, from the RoRs in respect of the purchased

properties of the Opposite Parties are going to show that, they are in

possession of their purchased suit properties, then at this juncture, dismissal to

the prayer of the Interlocutory Application vide I.A. No.01 of 2022 under

Order-39, Rules-1 and 2 read with Section 151 of the C.P.C., 1908 passed by

the learned trial court is not erroneous. For which, the question of interfering

with the same does not arise."

8. On being aggrieved with the aforesaid dismissal order passed on

dated 03.08.2022(Annexure-4) in I.A. No.01 of 2022 as well as judgment

of dismissal passed on dated 29.09.2023(Annexure-5) in FAO No.102 of

2022, he(petitioner) challenged the same by filing this Civil

Miscellaneous Petition under Article 227 of the Constitution of India

praying for quashing the impugned order dated 03.08.2022(Annexure-4)

passed in I.A. No.01 of 2022 as well as impugned judgment dated

29.09.2023 (Annexure-5) passed in FAO No.102 of 2022.

9. I have already heard from the learned senior counsel for the

petitioner and the learned senior counsel for the Opposite Parties.

10. Learned senior counsel for the petitioner relied upon the following

judgments:-

(i) In a case between Smt. Jagadishwari vrs. Smt. M. Revathi and another decided on 19.01.2024 in MFA No.6094 of 2023(Karnatak High Court)

(ii) In a case between Julien Educational Trust vrs. Sourendra Kumar Roy and others : reported in (2010) 1 SCC-379.

11. As per the submissions of the learned counsels of both the sides,

the crux of this Civil Miscellaneous Petition is that,

whether, refusal to the prayer for temporary injunction sought for by

the petitioner in I.A. No.01 of 2022 arising out C.S. No.1424 of 2022 and the

confirmation to the same by the learned appellate court in FAO No.102 of

2022 on the ground of non-seeking the same relief by the petitioner in the

earlier suit vide C.S. No.1385 of 2013 pending between them(parties) in

respect of the suit properties in the court of learned Civil Judge(Sr. Division),

Bhubaneswar in view of the provisions of law envisaged in Section 41(h) of the

Specific Relief Act, 1963 as well as on the ground of substantial progress of

the construction works on the suit properties recorded in the names of the

Opposite Parties in separate RoRs is sustainable under law?

12. It is the settled propositions of law that,

exercise of supervisory jurisdiction under Article 227 of the Constitution of India, 1950 is not available to the High Court to correct mere errors of fact or law, unless the errors manifest and apparent on the face of the proceedings, such as, when the same is based on mere ignorance and utter disregard of the provisions of law and grave injustice as occasioned thereby.

High Court under Article 227 of the Constitution of India, 1950 cannot exercise its power as an appellate court or substitute its own judgment in place of that of sub-ordinate court to correct an error which is not apparent on the face of the record. Because, the High Court is not vested with unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of jurisdiction of the sub-ordinate court.

Therefore, the High Court in exercise of its jurisdiction under Article 227 of the Constitution of India, 1950, ought not to have interfered with the findings arrived at by two courts below.

13. On this aspect, the propositions of law has already been clarified in

the ratio of the following decisions:-

(i) In a case between Surya Dev Rai vrs. Ram Chander Rai and others : reported in (2003) 6 SCC-675 that,

Exercise of supervisory jurisdiction under Article 227 of the Constitution of India, 1950 is not available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) error is manifests and apparent on the face of the proceedings such as it is based on clear ignorance or utter disregard of the provisions of law and (ii) a grave injustice or gross failure of justice has occasioned thereby.(Para-38)

(ii) In a case between M/s. Estralla Rubber vrs. Dass Estate (P) Ltd. : reported in (2001) 8 SCC-97 that,

High Court while acting under Article 227 of the Constitution of India, 1950 cannot exercise its power as an appellate court or substitute its own judgment in place of that of the sub-ordinate court to correct an error, which is not apparent on the face of record, because, the High Court is not vested with any unlimited prerogative to correct all kind of hardship or wrong decisions made with the limits of the jurisdiction of the sub-ordinate courts or Tribunals.(Para-6)

(iii) In a case between S.P. Deshmukh vrs. Shah Nihal Chand Waghajibai Gujarati : reported in (1977) 3 SCC-515 that,

High Court in exercise of its jurisdiction under Article 227 of the Constitution of India, 1950 ought not to have interfered with the findings arrived at by two Courts below.

(iv) In a case between Kesharlal H. Pardeshi vrs. Vithal S. Patole(dead) by LRs : reported in (2005) 10 SCC-249 that,

High Court in exercise its jurisdiction under Article 227 of the Constitution of India, 1950 ought not to have interfered with the findings arrived at by the two Courts below.

14. When, the scope of interference of the High Court in exercising its

supervisory jurisdiction under Article 227 of the Constitution of India,

1950 is very very limited, then, in view of the principles of law

enunciated by the Apex Court in the ratio of the aforesaid decisions, it

will be seen,

whether, there is any manifest or apparent error on the face of the

impugned orders passed by the learned trial court and the learned

appellate court and whether, the said impugned order and judgment vide

Annexures-4 and 5 respectively have been passed on clear ignorance or

utter disregard to the provisions of law and whether, a grave injustice or

grave failure of justice has been caused in passing the said order and

judgment respectively.

15. It is the admitted case of the parties that, in respect of the self-same

properties between the parties, a partition suit vide C.S. No.1385 of 2013

between the parties is sub-judice/pending in the court of learned Civil

Judge(Jr. Division), Bhubaneswar since the year 2013.

16. It is the settled proposition of law that, in a suit for partition like

C.S. No.1385 of 2013, the status of all the parties are same and inter-

changeable in nature. There was/is no bar under law for the petitioner for

seeking similar relief in the earlier partition suit vide C.S. No.1385 of

2013, but, without seeking any relief in that earlier suit vide C.S.

No.1385 of 2013, the petitioner filed an another suit in the year 2022 vide

C.S. No.1424 of 2022 in respect of the self-same properties and filed an

Interlocutory Application vide I.A. No.01 of 2022 praying for temporary

injunction.

To which, learned trial court rejected/dismissed as per the

impugned order vide Annexure-4 applying the provisions of law

envisaged in Section 41(h) of the Specific Relief Act, 1963 assigning the

reasons that,

when equally efficacious remedy was available for the petitioner in

the earlier suit for partition vide C.S. No.1385 of 2013, but, he has not

availed the same, then, the relief sought for by him in the subsequent suit

vide C.S. No.1424 of 2022 is hit and barred under Section 41(h) of The

Specific Relief Act, 1963.

The aforesaid observations of the learned trial court refusing the

prayer for temporary injunction of the petitioner in I.A. No.01 of 2022

applying the provisions of law envisaged under Section 41(h) of the

Specific Relief Act is not erroneous.

On this aspect, the propositions of law has already been clarified in

the ratio of the following decisions:-

(i) In a case between The Municipal Corporation of Delhi vrs.

Suresh Chandra Jaipuria and another : reported in AIR 1976 SC- 2621 that,

Relief of injunction shall not granted, if equally efficacious relief can certainly be obtained by any other usual mode of proceedings.

(ii) In a case between M/s. India Navigatgion Company vrs. Haryana State Industrial Development Corporation : reported in 2006(2) Civil Court Cases-122(P&H) that,

Injunction cannot be granted, when equally efficacious relief could be obtained by any other usual mode of proceeding, which might have been available to the plaintiff except filing the suit for declaration.

(iii) In a case between Ratnagiri Nagar Parisad vrs. Gangaram Narayan Ambekar and others : reported in 2021(1) Civil Court Cases-304(SC) that,

Relief for injunction cannot be granted, when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust.

(iv) In a case between State of U.P. and another vrs. Tara Singh Jaiswal : reported in 2013(1) Civil Court Cases-395(Allahabad) (D.B.) that,

The court cannot grant relief sought for by the plaintiff, when equally efficacious relief can be obtained by any other usual mode proceeding.

(v) In a case between Kisan Singh vrs. Sucha Singh : reported in 2008(2) Civil Court Cases-755(P&H) that,

Suit for permanent injunction is not maintainable, when equally efficacious remedy is available for the plaintiff by other usual mode of proceeding.

For which, plaintiff could have asserted his right over the property by filing a suit for partition, but, instead of which, plaintiff filed a suit for injunction. Held. Suit for injunction barred by virtue of Section 41(h) of the Specific Relief Act, 1963.

17. Here in this matter at hand, when, without seeking relief, i.e.,

temporary injunction in the earlier suit for partition vide C.S. No.1385 of

2013, the petitioner sought for the same relief by filing subsequent suit in

the year 2022 with I.A. No.01 of 2022, then, in view of the principles of

law enunciated in the ratio of aforesaid decisions, the petitioner is not

entitled for any relief in I.A. No.01 of 2022. For which, the dismissal to

the I.A. No.01 of 2022 of the petitioner passed by the learned trial court

and confirmation of the same by the learned appellate court on such

ground cannot be held as erroneous.

18. The decision relied on behalf of the petitioner between Smt.

Jagadishwari vrs. Smt. M. Revathi and another decided on 19.01.2024

in MFA No.6094 of 2023(Karnatak High Court) is not applicable to this

matter at hand on facts.

Because, as per Para No.32 of the said decision, in the earlier suit

for partition, the persons, those were the parties in the subsequent suit for

injnction, they were not the parties in the earlier suit for partition.

19. So far as the other ground of refusal to the prayer of temporary

injunction is that, when constructions have already been raised by the

Opposite Parties in their purchased recorded land to a substantial extent,

then, there is no justification under law to stop such construction also

cannot be held as erroneous.

Because, when the construction of a building has been made up to

a considerable extent, then, the same cannot be in the interest of justice to

stop its further construction, because, a half constructed house is

beneficial to no party.

20. Therefore, the balance of convenience leans in favour of

completion of the construction, rather than obstruction of construction.

On this aspect, the propositions of law has already been clarified in

the ratio of the following decisions:-

(i) In a case between Khiroda Prasad Routray vrs. Smt. Satyabhama Routray and others : reported in 1986(II) OLR NOC-

22 that,

Order of ad interim injunction prohibiting the defendant from completing a half constructed house passed in Order-39, Rules-1 and 2 of the C.P.C. was vacated, because, a half constructed house is beneficial to no party.

(ii) In a case between Bholeswar Sahu and another vrs. Rama Chandra Behera and another : reported in 90(2000) CLT- 294(Para-6) that,

When a building has been constructed upto a considerable extent, then, it may not be in the interest of justice to stop further construction. It cannot be said that, balance of convenience lies in favour of the party opposing such construction.(Para-6)

(iii) In a case between Assa Manayami vrs. Pawan Kumar Dugat : reported in 2025(2) Civil Court Cases-535(Rajasthan) that,

When, construction of wall is already over and only finishing work is remain, then, petition under Order-39, Rules-1 and 2 read with Section 151 of the C.P.C. was rightly rejected.(Para-6)

21. The decision relied on behalf of the petitioner reported in (2010) 1

SCC-379 is also not applicable to this matter on facts.

Because, the nature of suit in the said decision was a suit for

specific performance of contract and construction works were not

progressed.

22. As per the discussions and observations made above, when, the

concurrent observations of the learned trial court as well as learned

appellate court as per the impugned order and judgment vide Annexures-

4 and 5 respectively are neither unreasonable nor erroneous, then at this

juncture, the question of interfering with the same through this Civil

Miscellaneous Petition filed by the petitioner/plaintiff does not arise.

23. As such, there is no merit in the Civil Miscellaneous Petition filed