This corpus petition challenges the dismissal of an appeal against the rejection of an application for temporary injunction.
The petition was dismissed, affirming the order rejecting the application for preliminary injunction.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
C.M.P.No.1599 of 2016
8.11.2016 This petition challenges the judgment dated 15.9.2016 passed by the learned Di
strict Judge, Khurda in F.A.O.No.80 of 2016. By the said judgment, the learned appellate court
dismissed the appeal and confirmed the order dated 20.5.2016 passed by the learned Senior Civ
il Judge, Bhubaneswar in I.A.No.582 of 2015 arising out of C.S.No.7231 of 2015, whereby and wh
ereunder, the application filed by the petitioner under Order 39 Rule 1 and 2 read with Secti
on 151 C.P.C. was dismissed.
The petitioner as plaintiff instituted C.S.No.7231 of 2015 in the court of the
learned Civil Judge (Sr.Division), Bhubaneswar for a declaration that the sale deed executed
by defendant no.2 in favour of defendant no.1 is invalid and void and permanent and mandatory
injunction. The case of the plaintiff is that a lease deed was executed by the G.A. Department
, Government of Orissa on 1.9.1962 in favour of his father Raj Kishore Pattnaik in respect of
an area Ac.0.175 dec. The same was converted to free-hold land and, accordingly, a conveyance
deed bearing no.10695 dated 16.7.2008 in respect of an area Ac.0.172 dec. out of Ac.0.175 dec.
was executed. On 23.9.2009 his father had executed a gift deed in favour of his brother-Bijay
a Bhusan Pattanik (defendant no.1 in C.S.No.7231 of 2015) in respect of an area measuring Ac.0
.43 dec. Similarly his father had also executed three other gift deeds in favour of his other
three brothers. The gift deeds were made by dividing the entire suit property into four differ
ent sub-plots, vide sub-plot nos. A. B. C & D, each part consists of an area of Ac.0.43 dec. T
he petitioner got
sub-plot no. A i.e., Lot No.I as mentioned in schedule B of the plaint, whereas defendant no.1
got sub-plot no. B. i.e., Lot No.II as indicated in the said schedule. While the matter stood
thus, defendant no.1 surreptitiously alienated his land to defendant no.2. Thereafter the def
endant no.2 demolished certain structures standing over the land of defendant no.1 and started
permanent construction over the same by demolishing the common concrete roof, common lintel,
etc. Due to the demolition work undertaken by defendant no.2, his house became unsafe. In the
meanwhile, defendant no.2 transferred the land in favour of the present opposite party by mean
s of registered sale deed dated 16.1.2015. After purchase, the opposite party is trying to dis
turb his peaceful possession by making further demolition encroaching upon his land.
The case of the opposite party is that she is the rightful owner of the suit p
roperty. She purchased the suit property by means of a registered sale deed dated 16.1.2015 fr
om defendant no.2, Anil Kumar Mohanty, which was purchased by her vendor from defendant no.1 v
ide registered sale deed dated 7.8.2013. Defendant no.1 had obtained the same from his father
late Raj Kishore Pattnaik on the basis of a gift deed executed in his favour. Thus, the plaint
iff has no manner of right, title, interest and possession over the suit land.
During pendency of the suit, an application under Order 39 Rule 1 and 2 C.P.C.
was filed by the petitioner. The opposite party filed objection. After hearing the matt
er at
length, the learned trial court dismissed the application for injunction. Thereafter the petit
ioner filed F.A.O. No.80 of 2016 before the learned District Judge, Khurda at Bhubaneswar, whi
ch was eventually dismissed.
Heard Mr.Sarangi, learned counsel for the petitioner and Mr.Pattnaik, learned
counsel for the opposite party.
The jurisdiction of the High Court under Article 227 of the Constitution of In
dia is very limited.
Dealing with the scope of Article 227 of the Constitution, the apex Court in M
unicipal Corporation of Delhi vs. Sh. Jai Singh and others, 2010 AIR SCW 5968 held
thus:-
xxx xxx xxx
Before we consider the factual and legal issues involved herein, we may notice certain
well recognized principles governing the exercise of jurisdiction by the High Court under Art
icle 227 of the Constitution of India. Undoubtedly the High Court, under this Article, has the
jurisdiction to ensure that all subordinate courts as well as statutory or quasi-judicial tri
bunals, exercise the powers vested in them, within the bounds of their authority. The High Cou
rt has the power and the jurisdiction to ensure that they act in accordance with well establis
hed principles of law. The High Court is vested with the powers of superintendence and/or judi
cial revision, even in matters where no revision or appeal lies to the High Court. The jurisdi
ction under this Article is, in some ways, wider than the power and jurisdiction under Article
226 of the Constitution of India. It is, however, well to
remember the well known adage that greater the power, greater the care and caution in exercise
thereof. The High Court is, therefore, expected to exercise such wide powers with great care
, caution and circumspection. The exercise of jurisdiction must be within the well recognized
constraints. It cannot be exercised like a bull in a china shop, to correct all errors of judg
ment of a court, or tribunal, acting within the limits of its jurisdiction. This correctional
jurisdiction can be exercised in cases where orders have been passed in grave dereliction of d
uty or in flagrant abuse of fundamental principles of law or justice. The High Court cannot li
ghtly or liberally act as an appellate court and re-appreciate the evidence. Generally, it can
not substitute its own conclusions for the conclusions reached by the courts below or the stat
utory/quasi-judicial tribunals. The power to re-appreciate evidence would only be justified in
rare and exceptional situations where grave injustice would be done unless the High Court int
erferes. The exercise of such discretionary power would depend on the peculiar facts of each c
ase, with the sole objective of ensuring that there is no miscarriage of justice.
xxx xxx xxx
On the anvil of the decision cited supra, the instant case may be examined.
The learned appellate court assigned the following reasons and dismissed the a
ppeal.
Admittedly, only Ac.0.172 decimals of land, out of Ac.0.175 decimals, was made free-ho
ld with execution of a conveyance deed. So, it goes without saying that the rest Ac.0.03 decim
als of land is not accrued to the benefit of any of the sons of Raj
Kishore Pattnaik as free-hold property. In such a situation, when all the sons of Raj Kishore
Pattnaik are in possession of their respective allotted land and out of them defendant no.1 tr
ansferred his share in favour of defendant no.2 under a valid RSD who subsequently sold the sa
me in favour of the present respondent vide RSD dated 16.1.2015, it cannot be said that the re
spondent has no manner of valid right, title, interest and possession over the and in question
. Considering all these aspects, the learned lower court has come to a conclusion that the app
ellant has failed to establish a prima facie case and balance of convenience lies in his favou
r and while refusing the prayer to grant injunction, the learned lower court has also held tha
t no irreparable loss or injury would be resulted to the appellant-petitioner. While passing t
he order of dismissal, the learned lower court has also made it clear that in case the appella
nt succeeds in the suit, the respondent will not claim any equity over any construction raised
over the suit land.
The reasons assigned by the learned appellate court cannot be said to be perfu
nctory or flawed warranting interference of this Court.
The petition is dismissed.
6
2 issues framed by the court
Whether the High Court should interfere under Article 227 of the Constitution of India in the dismissal of the appeal arising from the rejection of the temporary injunction application.
Whether the appellant failed to establish a prima facie case and balance of convenience for granting a permanent injunction over the suit land.
Colour shows how this judgement treated each authority
Municipal Corporation of Delhi vs. Sh. Jai Singh and othersReferred¶7
Municipal Corporation of Delhi vs. Sh. Jai Singh and others, 2010 AIR SCW 5968 · Who else cites this
2 provisions across 2 enactments
Petitioner
Opposite Party
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court