Orissa High Court
M/S.Skol Breweries Ltd vs M/S.Sriram Engineering ... Opposite ... on 12 July, 2013
Author: S.K.Mishra
Bench: S.K.Mishra
HIGH COURT OF ORISSA ; CUTTACK
W.P.(C) No.6367 of 2013
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
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M/s.SKOL Breweries Ltd.
... Petitioner
Versus
M/s.Sriram Engineering ... Opposite Party
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For Petitioner : M/s. Manoj Ku. Mishra,
T.Mishra and M.K.Rajguru.
For opposite party : M/s. Bibekananda Bhuyan,
B.N.Mishra,C.R.Swain
and Supriya Patra.
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PRESENT:
THE HONOURABLE MR. JUSTICE S.K.MISHRA
Date of hearing:12.7.2013 : Date of judgment: 12.7.2013
S.K.Mishra,J. The petitioner being the plaintiff in C.S. No.80/2012
of the court of Civil Judge (Jr. Division), Kujang has assailed
the judgment dated 5.3.2013 passed by learned Addl. District
Judge, Jagatsinghpur in F.A.O. No.57 of 2012 setting aside
the order dated 16.8.2012 passed by learned Civil Judge
(Jr. Division), Kujang in I.A. No.96/2012.
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2. The petitioner filed the suit for permanent injunction
against the defendants from entering into the suit land and for
restraining them from carrying on construction over the suit
land or any portion thereon with other reliefs. The suit land
pertains to Mutation Khata No.18/201, Plot No.452 measuring
an area Ac 5.74 dec. out of Ac.11.50 dec of village
Bijayachandrapur, Khata No.18 which were recorded in the
name of Chakar Swain and others in the R.O.R of 1930 with
the specific shares out of the total lands of an area of Ac.41.13
dec. The recorded tenant sold the same to Nityakishore
Mohapatra and Gita Mohapatra and to another one Kusur
Rama Guduppa in different sale deed since the year 1966-1969
to the extent of Ac.30.00 dec. The three purchasers sold the
same to East Coast Breweries Ltd. vide Registered Sale Deed
No.9487 dt.6.11.1969. The East Coast Breweries Ltd. filed a
suit before the Civil Judge (Sr. Division), Jagatsingpur vide T.S.
No.97/80 as the sale deed was without proper description of
the land and the same was compromised between the parties to
that suit and the Company became owner of the suit land. The
suit land was mutated in Mutation Case No.210/1997. Since
then the Company is paying rent and is in possession of the
same. The defendant started construction over a portion of the
suit land. Hence the plaintiff files a petition under Order 39,
Rules 1 and 2 C.P.C. for restraining the defendant from
carrying on construction over the suit land till disposal of the
suit.
3. The defendant-opposite party filed their written
statement denying the averments made in the interim
application and challenging the maintainability of the same. It
was contended that the vendor has not purchased the suit
land. The sale transaction was fraudulent and nominal decree
was obtained without adding the necessary parties, i.e.
recorded tenant of the suit land. One Baishnab Ch. Panda is
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one of the recorded tenants of Sabik Khata No.18 having 2
Pahi interest in the entire land. He sold Ac.1.61 dec. to one
Pramoda Kumar Pattnaik under registered sale deed no.954
dt.13.4.1998. Pramoda Pattnaik sold the said lands to
different persons including one Sudhir Kumar Swain for an
area Ac.0.21 dec. under registered sale deed No.208 dated
15.7.2006. Sudhir sold the land to the defendant under registered sale deed dated 8.7.2010 with a sketch map. The defendant-opposite party applied for mutation, which was allowed and mutation Khata No.18 was prepared in their name. The defendant-opposite party filed an application under Section 8(A) of the O.L.R. Act which was registered as O.L.R. Case No.445/2011. The further case of the defendant is that they are paying rent and is in possession of the case land. The defendant is carrying on construction over the case land and has constructed a substantial portion for residential purpose. The plaintiff-petitioner has filed the suit for recovery of possession. So the plaintiff is not in possession of the case land. The plaintiff has no manner of right, title, interest and possession over the same. So the person in possession cannot be restrained. With such averments the opposite party prayed that the interim application be dismissed.
4. After hearing parties, the learned Civil Judge (Jr. Division), Kujang passed an order directing the parties to maintain status quo. Against such an order the defendant filed an appeal in the court of the Addl. District Judge, Jagatsingpur which has been registered as F.A.O. No.57 of 2012. The learned appellate Judge after hearing parties has set aside the order passed by learned Civil Judge (Jr. Division), Kujang. Mainly he took into consideration the material on record shows that the plaintiff-petitioner has sought for a relief of recovery of possession which shows the possession of the suit land is with the appellant. Secondly, the R.O.R. has been mutated in favour 4 of the defendant-opposite party in Mutation Case No.210/1997 and separate Mutation Khata No.18/201 has been prepared. Thirdly, substantial part of construction has been made by the defendant-opposite party. Learned counsel for the defendant- opposite party also agreed to file an undertaking to the effect that they shall give vacate possession of the suit land if the title of the suit is decided ultimately in favour of the present petitioner and in that event he shall not claim any equity. On such reasonings the learned Addl. District Judge, Jagatsingpur reversed the order passed by learned Civil Judge (Jr. Division), Kujang. Such order of reversal is assailed in this writ petition.
5. Learned counsel for the petitioner submitted that the first contention raised by learned appellate Judge is erroneous in view of the fact that the recovery of possession is an alternative prayer in the suit and the appellate judge has committed error on record by wrong appreciation of the pleadings on the face of it. Secondly, it is contended that the R.O.R. has been mutated in favour of the petitioner also and if the opposite party is allowed to construct the residential house over the suit land, it will cause prejudice to the petitioner as the subject matter of the suit would not be preserved till finalization of the suit.
6. Learned counsel for the opposite party, on the other hand, submits that the writ Court has limited jurisdiction. Under Article 227 of the constitution the supervisory jurisdiction cannot be invoked to sit in appeal against the order passed by the sub-ordinate court. As such it is contended that the writ petition is devoid of any merit and it should be dismissed.
7. Learned counsel for the opposite party relied upon the reported case of Pramod Kumar Nayak Vrs. Sripati Charan Badajena; 113(2012) CLT 805 wherein this Court has placed 5 reliance on the observations made by the Supreme Court in Sadhana Lodh -vrs- National Insurance Co. Ltd. and another; AIR 2003 SC 1561, Ranjit Singh -Vrs- Ravi Prakash; AIR 2004 SC 3892 and Abdul Razak -Vrs- Mangesh Rajaram Wagle and others; (2010)2 SCC 432. Relying on the discussions made in the aforesaid cases this Court has held that where a trial court in civil suit refused to grant temporary injunction and an appeal against refusal to grant injunction has been rejected, the writ petition would be lie under Articles 227 and not under Article 226 of the Constitution. It is further held that while exercising supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution, jurisdiction of the High Courts is confined only to see whether an inferior Court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less an error of law. It is further held that in exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an Appellate Court or Tribunal. It is also not permissible for a High Curt on a petition filed under Article 227 of the Constitution to review or re-weigh the evidence upon which the inferior Court or Tribunal purports to have passed the order or to correct errors of law in the decision. Thus, learned counsel for the opposite party submits that this Court should not act as an appellate court to set aside the order passed by learned Addl. District Judge.
8. Before coming any conclusion, it is apposite to take note of the fact that the plaintiff has prayed for permanent injunction against the defendant and he has prayed for recovery of possession if it is found that the plaintiff has been dispossessed in the mean time. It is clear that the prayer made by the plaintiff for recovery of possession is an alternative prayer. It does not mean that the plaintiff is not in possession 6 of the land in question. There is no other averment in the plaint to the effect that the plaintiff admits the possession of the defendants. In such a case whether it is proper to hold that the appellate court acted within the parameters available to him.
9. The ratio decided in Kishore Kumar Khaitan & Anr. V. Praveen Kumar Singh; AIR 2006 SUPREME COURT 1474 is taken note of. In the said case the Supreme Court has held that the jurisdiction under Article 227 may be restrictive in the sense that it is to be invoked only to correct errors of jurisdiction. However, the Supreme Court further held that when a Court asks itself a wrong question or approaches the question in an improper manner, even if it comes to a finding of fact, the said finding of fact cannot be said to be one rendered with jurisdiction and it will still be amenable to correction at the hands of the High Court under Article 227. The failure to render the necessary findings to support its order would also be a jurisdictional error liable to correction.
10. Applying the said principles in the case in hand, it is seen that the learned appellate court has not only misread the pleading but also has taken a wrong view of the case and addressed itself to determine the matter in hand. This Court is of the opinion that the ratio decided by the Supreme Court in the case of Kishore Kumar Khaitan & Anr. V. Praveen Kumar Singh (supra) is applicable and the order passed by the learned Addl. District Judge, Jagatsingpur is amenable for correction.
11. It is further seen that though the opposite party claimed that the substantial portion of the construction has been made. If the subject of the suit is not protected and the opposite party is allowed to make constructions over the land in question, then it will lead multiplicity of proceedings. In that 7 view of the matter, this Court considers that status quo should be maintained by the parties.
12. In the result, the writ petition succeeds. The judgment dated 5.3.2013 passed by learned Addl. District Judge, Jagatsinghpur in F.A.O. No.57 of 2012 is quashed and the order dated 16.8.2012 passed by learned Civil Judge (Jr. Division), Kujang in I.A. No.96/2012 is restored.
The writ petition is, accordingly, disposed of. The pending Misc. Case is also disposed of.
Sd/-
S.K.Mishra, J True Copy Orissa High Court, Cuttack Dated 12th July, 2013/A.K.Behera Secretary 8 Sd/-
S.K.Mishra, J 9 True Copy Orissa High Court, Cuttack Dated 18th January, 2011/A.K.Behera. P.A. .
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S.K.Mishra, J Orissa High Court, Cuttack Dated 18th January, 2011/A.K.Behera.
10 Orissa High Court, Cuttack Dated June, 2010/A.K.Behera. Sd/- A.S.Naidu,J. S.C.Parija,J. I agree. Sd/- S.C.Parija,J True Copy Orissa High Court, Cuttack Dated June,2010/A.K.Behera. P.A. 11