Nishamani Sahoo Vs Rohit Kumar Prusty

227 of the Constitution of India, 1950 has been filed by the petitioner praying for quashing the final order dated 21.01.2020 (Annexure-13) passed in F.A.O. No.12 of 2018/02 of 2019 arising out of I.A. No.27 of 2018 by the learned Addl. District Judge-cum-Special Judge (Vigilance), Dhenkanal.

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2. The factual backgrounds of this CMP, which prompted the petitioner for filing of the same is that, the opposite party in this CMP

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i.e. Rohit Kumar Prusty was the plaintiff in the suit vide C.S. No.93

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C.M.P. No.195 of 2020

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of 2014 and the petitioner in this CMP i.e. Nishamani Sahoo along

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with two others i.e. Ajay Kumar Sahoo and Akshay Kumar Sahoo were the defendants in that suit vide C.S. No.93 of 2014 in the Court of learned Civil Judge, Dhenkanal.

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The petitioner in this CMP was the defendant No.1 in that suit, vide C.S. No.93 of 2014.

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That suit vide C.S. No.93 of 2014 of the O.P. (plaintiff) was decreed ex parte on dated 15.03.2016 against all the defendants including the petitioner in this CMP restraining all the defendants including the petitioner in this CMP permanently from entering into and creating any disturbance in the peaceful possession and enjoyment of the plaintiff (O.P. in this CMP) over the suit land.

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Thereafter, she (defendant No.1) filed CMA No.13 of 2018 under O.9 R.13 of CPC, 1908 against the plaintiff praying for setting aside that ex parte decree passed on dated 15.03.2016 in the suit vide C.S. No.93 of 2014.

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In that CMA No.13 of 2018 under O.9 R.13 of the CPC, 1908, the petitioner/defendant No.1 filed an interlocutory application vide I.A. No.27 of 2018 under O.39 R.1 & 2 read with Section 151 of the CPC, 1908 against the O.P./plaintiff praying for restraining him temporarily from entering into the suit land till the disposal of the CMA No.13 of 2018 under O.9 R.13 of the CPC, 1908.

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After hearing from both the sides, learned Civil Judge,

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Dhenkanal allowed that I.A. No.27 of 2018 of the petitioner/defendant No.1 on dated 01.06.2018 on contest against the O.P./plaintiff and restrained the O.P./plaintiff from entering into the suit land till the disposal of the CMA No.13 of 2018.

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On being dissatisfied with the said order dated 01.06.2018 passed in I.A. No.27 of 2018, the O.P./plaintiff challenged the same preferring an appeal under O.43 R.1 of the CPC, 1908 vide F.A.O. No.12 of 2018/02 of 2019.

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3 . After hearing from both the sides, the Appellate Court i.e. learned Addl. District Judge-cum-Special Judge (Vigilance), Dhenkanal allowed that F.A.O. No.12 of 2018/02 of 2019 filed by the appellant/O.P./plaintiff on contest on dated 21.01.2020 and set aside the order of temporary injunction passed by the learned Civil Judge, Dhenkanal in I.A. No.27 of 2018 assigning the reasons that, due to the passing of an ex parte decree i.e. permanent injunction in C.S. No.93 of 2014 against the defendant No.1 (petitioner in I.A. No.27 of 2018) and in favour of the plaintiff (O.P. in I.A. No.27 of 2018), the petitioner in I.A. No.27 of 2018 has no prima facie case in her favour. Because, ex parte decree passed in favour of the O.P. is in force. For which, the impugned order i.e. temporary injunction passed by the learned Civil Judge, Dhenkanal is not sustainable under law .

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C.M.P. No.195 of 2020

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4 . On being aggrieved with the said order of dismissal of

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F.A.O. No.12 of 2018/02 of 2019, the petitioner in I.A. No.27 of 2018 challenged the same by filing this CMP praying for quashing it.

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5 . I have already heard from the learned counsels of both the

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sides.

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6 . In order to quash the impugned order passed in F.A.O. No.12 of 2018/02 of 2019, during the course of hearing of this CMP, learned counsel for the petitioner relied upon following decisions i.e. Nanasaheb Vs. Dattu and others reported in AIR 1992 BOM 24 and Leela Dhar Gera & Anr. Vrs. Special Judge S.C. S.T. Act/ADJ .

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7 . It is the undisputed case of the parties that, the O.P. in this C.M.P. was the plaintiff in the suit vide C.S. No.93 of 2014 and the petitioner in this CMP was the defendant No.1 in that suit.

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That suit, vide C.S. No.93 of 2014 in respect of the suit properties has already been decreed ex parte in favour of the plaintiff (O.P. in this CMP) and against the defendant No.1 (petitioner in this CMP) on dated 15.03.2016 restraining the petitioner in this CMP permanently from entering into and creating any disturbance in the peaceful possession and enjoyment of the O.P. in this CMP over the suit land.

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CMA No.13 of 2018 under O.9 R.13 of the CPC, 1908 was

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filed by the defendant No.1 (petitioner in this C.M.P) praying for

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setting aside that ex parte decree passed in C.S. No.93 of 2014, which is sub-judice/pending for adjudication. Till yet, the ex parte decree passed in C.S. No.93 of 2014 in favour of the plaintiff (O.P. in this CMP) has not been set aside and the same is in force.

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During the pendency of the CMA No.13 of 2018 under O.9 R.13 of the CPC, 1908, the petitioner/defendant No.1 had filed I.A. No.27 of 2018 under O.39 R.1 & 2 read with Section 151 of the CPC, 1908 against the plaintiff arraying him as O.P. praying for injuncting him temporarily from entering into the suit properties till the final disposal of the CMA No.13 of 2018, which was allowed by the learned Civil Judge, Dhenkanal on dated 01.06.2018, to which, in an appeal vide F.A.O. No.12 of 2018/02 of 2019, the learned Appellate Court set aside on dated 21.01.2020 on the ground that, due to the passing of the ex parte decree in respect of the suit properties in favour of the plaintiff (the O.P. in I.A. No.27 of 2018), the defendant No.1 (petitioner in I.A. No.27 of 2018) has no prima facie case in her favour.

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8 . Now the question arises, whether during the pendency of the petition under O.9 R.13 of the CPC, 1908 vide CMA No.13 of 2018 filed by the defendant No.1 for setting aside the ex parte decree passed in the suit vide C.S. No.93 of 2014 against her (defendant No.1), a petition for temporary injunction vide I.A. No.27 of 2018 in

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respect of the suit properties filed by the defendant No.1 against the

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plaintiff is entertainable under law, when the main suit vide C.S. No.93 of 2014 is not in existence?

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9 . On this aspect, the propositions of law has already been clarified by the Hon’ble Courts in the ratio of the following

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decisions:-

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(i) In a case between Kunjabihari Pradhan Vrs. Jayanti Pradhan reported in 96 (2003) CLT 151 (Para 12), a judgment delivered by a Court between the parties on relevant issue is binding on the parties so long as that judgment and decree holds the field. In that context, it is immaterial whether that judgment was passed on contest or ex parte.

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(ii) In a case between Gelhei Mallik and six others Vrs. Dibakar Mallik and Seven others reported in 2011 (I) OLR 684, 2011 (I) CLR 948, 111 (2011) CLT 755 & III (2011) CLT 255; when the suit is dismissed and a petition is pending for restoration of the suit, the Court is not in seisin over the dispute in respect of the subject-matter of the suit. A petition for temporary injunction is not entertainable under law.

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(iii) In a case between Sayed Basar Alli Vrs. Smt. Urmila Pattanaik reported in 112 (2011) CLT 1 & IV (2011) Civ.L.T. 91 ; when the suit is not in existence and till the application under O.9 R.9 of the CPC, 1908 is allowed for restoration of the suit, Trial Court becomes functus officio until suit is not restored. No application for injunction under Section 151 of the CPC is maintainable.

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10 . In view of the propositions of law enunciated in the ratio of

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the aforesaid decisions, when the suit vide C.S. No.93 of 2014 is not

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in existence due to its final disposal through an ex parte decree i.e. permanent injunction against the defendants including defendant No.1 (petitioner in I.A. No.27 of 2018), a petition for temporary injunction vide I.A. No.27 of 2018 filed by the petitioner in the CMA No.13 of 2018 (who was the defendant No.1 in C.S. No.93 of 2014) under O.9

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R.13 of the CPC, 1908 is not entertainable under law. Because, as per

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law, an order for temporary injunction can be granted during the pendency of a suit.

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That apart, when through an ex parte decree passed on dated 15.03.2016 in the suit vide C.S. No.93 of 2014, the petitioner in I.A.

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No.27 of 2018 has been restrained permanently from entering into and from creating any disturbance in the peaceful possession and enjoyment of the O.P. in I.A. No.27 of 2018 over the case land and when the said ex parte decree passed in C.S. No.93 of 2014 is in force without being set aside as yet, then naturally, there is no prima facie case in favour of the petitioner in I.A. No.27 of 2018, who is defendant No.1 in C.S. No.93 of 2014.

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For which, the question of interfering with the impugned order passed in F.A.O. No.12 of 2018/02 of 2019 through this CMP filed by the petitioner/defendant No.1 does not arise. Because, the impugned order is neither perverse nor unreasonable or illegal for the reasons assigned above.

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So, the decisions relied upon by the learned counsel for the petitioner indicated in Paragraph No.6 of this judgment are not applicable to this CMP on facts and law as discussed above.

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11 . Therefore, there is no merit in the CMP filed by the petitioner. The same must fail.

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12 . In result, this CMP filed by the petitioner is dismissed on

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contest against the O.P., but without cost.

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13 . Accordingly, the CMP is disposed of finally.

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(A.C. Behera), Judge.

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Orissa High Court, Cuttack. 04.07.2025//Utkalika Nayak// Junior Stenographer

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Signature Not Verified Digitally Signed Signed by: UTKALIKA NAYAK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 04-Jul-2025 15:47:00

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C.M.P. No.195 of 2020

Nishamani Sahoo v. Rohit Kumar Prusty

Case brief

What is this about?

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Nishamani Sahoo v. Rohit Kumar Prusty

Case brief

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