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The Executive Officer, Notified Area Council Vs. Kintali Natabar Prusti and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberMiscellaneous Appeal No. 261/84
Judge
Reported in60(1985)CLT296; 1985(II)OLR298
ActsCode of Civil Procedure (CPC) , 1908 - Sections 94 and 151 - Orders 39, Rules 1 and 2 - Orders 41, Rule 4 - Orders 43, Rules 1, 2 and 3; Specific Relief Act, 1963 - Sections 36 and 37(1); Orissa Municipal Act, 1950 - Sections 349
AppellantThe Executive Officer, Notified Area Council
RespondentKintali Natabar Prusti and ors.
Appellant AdvocateR.K. Rath and B.K. Nayak
Respondent AdvocateAddl. Standing Counsel (for respondents 4 and 5) and Saktidhar Das and K.N. Sinha (For respondents 1 to 3)
DispositionAppeal allowed
Cases ReferredDhenkaual and Ors v. Guru Prasad Mahakud and Ors.
Excerpt:
.....), it has been held :the petitioner has admittedly been on the property for quite a long time legal position is well-settled that a person in possession particularly under some colour of title should not be forced out by taking law into one's own hand. the object of granting temporary relief being to prevent the ends of justice being defeated, i am of the view that the parties should be given an opportunity to prove their case by affidavit or otherwise to enable the court to arrive at a just decision......94(c) and order 39, rules 1 and 2, c. p. c., in laying down the principle that the power to grant temporary injunction is discretionary. {see i. l. r. 1958 cutt. 63 (bhaskar chandra sahu and anr v. hannu sahu and anr.), 1971 (2) c. w. r. 548 (narayan prusty v. state and ors.), 38(1972) c. l. t. 1233 ( nayan kumari dei v. bhagabat sahu and ors. ) and 1973(2) c. w. r. 1471 (dullabha naik and ors. v. govind swain and ors.). the relief of temporary injunction is an equitable remedy as has been held by this court in the decision reported in 1971 (2) c. w. r. 548 (supra). thus, all the maxims of equity are attracted for considering the question of granting the interim relief.7. courts are to exercise the discretion to grant the temporary relief of injunction judicially as has been held.....
Judgment:

S.C. Mohapatra, J.

1. Defendant No. 3 is the appellant. The appeal arises out of an order granting temporary injunction in a suit for confirmation of possession and permanent injunction. The suit relates to a tank and its embankments locally known as 'Kendu Gadia' measuring 1 acre 41 cents.

2. Claiming to be in peaceful possession since 1938, plaintiffs prayed for temporary injunction as the State of Orissa (defendant No. 1) transferred the tank to Polosora Grama Panchayat and subsequently it has been transferred to the Kodala Notified Area Council and in view of the fact that a proceeding has been initialed against the plaintiffs under the Prevention of Land Encroachment Legislation in the State for their eviction.

3. The defendants have resisted the prayer for injunction Their case is that the tank was transferred to Polosora Grama Panchayat and thereafter to Kodala Notified Area Council.

4. A bare reading of the petition for injunction, the objection thereto and the documents filed lead to the only conclusion that the parties adverted to the question of possession of the tank. The trial Court also granted the injunction prayed for on the finding of possession only.

5. Temporary injunction during pendency of a suit is not a common law-right See AIR 1962 Orissa 181 (Radhamoban Sundara Mohapatra v. Sora Dei). Section 36 of the Specific Relief Act, 1963 only provides that the preventive relief of temporary injunction is granted by the Court at its discretion. Section 37(1) of the said Act explains that grant of temporary injunction by the Court is regulated under the Code of Civil Procedure. Section 94(c), C. P. C , provides that to prevent the ends of justice being defeated, Courts can giant temporary injunction in a suit as prescribed in the Code. Order 39, Rules 1 and 2, C. P. C., which prescribes for grant of temporary injunction, being not exhaustive and as has been held in A. I. R. 1962 S. C. 527 (Manohar Lal Chopra v. Raj Bahadur Rao Raja Seth Hiralal ) the inherent power of the Court under Section 151, C. P. C., can be invoked to grant the preventive temporary relief. In the decisions reported in [I. L. R. 1966 Cutt., 400 (C. Dharamarajan v. Governing Body of Karanjia College and Anr. ). 38 (1972) C. L. T. 217 ( Krushna Chandra Mohapatra v. Chakrakote Savannah Hanta ) and 41 (1975) C. L. T. 882 ( R. S. Patal v. B. K Gupta and others) the principle had been followed and the question was examined on the facts and circumstances of those cases.

6. The main object behind the power to grant the preventive temporary relief of injunction is to prevent the ends of justice being defeated. It is granted at the discretion of the Court. This Court has confirmed the clear language of the provisions of Section 36 of the Specific Relief Act, 1963, Section 94(c) and Order 39, Rules 1 and 2, C. P. C., in laying down the principle that the power to grant temporary injunction is discretionary. {See I. L. R. 1958 Cutt. 63 (Bhaskar Chandra Sahu and Anr v. Hannu Sahu and Anr.), 1971 (2) C. W. R. 548 (Narayan Prusty v. State and Ors.), 38(1972) C. L. T. 1233 ( Nayan Kumari Dei v. Bhagabat Sahu and Ors. ) and 1973(2) C. W. R. 1471 (Dullabha Naik and Ors. v. Govind Swain and Ors.). The relief of temporary injunction is an equitable remedy as has been held by this Court in the decision reported in 1971 (2) C. W. R. 548 (supra). Thus, all the maxims of equity are attracted for considering the question of granting the interim relief.

7. Courts are to exercise the discretion to grant the temporary relief of injunction judicially as has been held in I.L.R. 1958 Cutt.63 (supra) and not arbitrarily. Sue 38 (1972) C. L. T. 1233 (supra) and 1973 (1) C. W. R. 1471 (supra). For the purpose of sound exercise of judicial discretion three conditions are to be satisfied in favour of the party seeking the temporary relief. They are : (i) prima facie case, (ii) irreparable injury in case the temporary relief is refused, and (iii) balance of convenience. This principle has been accepted in the decisions of this Court reported in 1971 (1) C. W. R. 861 (Upendra Das and Anr v. Krushna Sahu), 33(1972) C. L. T. 1233 (supra), I.L.R. 1973 Cutt 1309 ( Orissa State Commercial Transport Corporation v. Satyanarayan Singh), 46 (197b) C.L.T. 368 ( Ghanashyam Das and Ors. v. Muralidhar and Ors.) and C. R. No. 317 of 1985 decided on 23. 5.1985 ( Jitendra Kumar Sahu v. Mrs. N. Padma-khee and others). The party seeking the temporary relief is required to prove the three preconditions to the satisfaction of the Court. See 46(1978) C.L. T. 368 (supra) .

8. A Division Bench of this Court in a decision reported in 41 (1975) C. L. T. 1127 ( Dayalu Narayan Swamy v. Kanika Ramaswamy Dora and Ors. ) has observed that the relief of injunction is available to a person in possession. In another decision reported in 1972 (I) C. W. R. 896 ( Padmalochan Mohapatra V. Collector, Mayurbnanj and Anr.), it has been held :

'...The petitioner has admittedly been on the property for quite a long time Legal position is well-settled that a person in possession particularly under some colour of title should not be forced out by taking law into one's own hand. It is particularly so when the State with its mighty power comes to deal with a citizen..........'

Besides, neither defendant No. 1, the State of Orissa nor defendant No. 2, the Tahasildar has challenged the order of temporary injunction. They have not produced the order of eviction against the plaintiffs in the trial Court. Defendant No. 3 has not produced any material except the transfer of the tank in favour of the Notified Area Council and one Kabiraj Sahu applying to take the tank for bhagchas. No explanation has been offered how a tank can be cultivated on bhag. A document has been produced on behalf of the defendants indicating that one Baman Misra has taken the tank on lease from the Tahasildar on deposit of Rs. 305/-. If the tank has been transferred to the Notified Area Council, no explanation is forthcoming how the Tahasildar could grant the lease of the tank belonging to the Notified Area Council.

9. No material is forthcoming on record to prove notice to the Executive Officer under Section 349 of the Orissa Municipal Act which is the precondition for a suit against him. In the decision reported in [42(1976)CLT 174(Collector, Dhenkaual and Ors v. Guru Prasad Mahakud and Ors.)], this Court vacated the order of temporary injunction on the ground that notice under Section 80, C.P.C., was not served.

10. In the background of the discussion, it can safely be inferred that the parties and the trial Court have not proceeded with the matter with correct legal position in view. The object of granting temporary relief being to prevent the ends of justice being defeated, I am of the view that the parties should be given an opportunity to prove their case by affidavit or otherwise to enable the Court to arrive at a just decision.

11. The order of injunction so fat as the appellant is concerned is accordingly vacated. Though the State of Orissa and the Tahasildar, Kodala, have not preferred appeal, they have been made parties to this appeal. In view of the principle underlying Order 41, Rule 4, C. P. C., which applies to appeals under Order 43, Rule 1, C. P. C., as provided in Order 43, Rule 3, C. P. C., the order against them should also be vacated to give them an opportunity to prove their case by affidavit or otherwise.

12. In the result, the appeal is allowed and the order of injunction is set aside. The matter is remitted back to the trial Court to be heard afresh after giving the parties opportunity to prove their case by affidavit or otherwise. No costs.


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