Orissa High Court
Smt. Manoj Manjari Mohapatra vs Sri Kapila @ Kapilendra Mohapatra on 9 April, 2021
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
HIGH COURT OF ORISSA: CUTTACK
CMP NO. 128 OF 2021
In the matter of an application under Article 227 of Constitution of India.
Smt. Manoj Manjari Mohapatra ...... Petitioner
and another
-Versus-
Sri Kapila @ Kapilendra Mohapatra
and another ...... Opp. Parties
For Petitioners : M/s. Soubhagya Kumar Dash,
D. Sethi & S.K. Tripathy
For Opp. Parties : M/s. P.K. Rath,
A. Behera, S.K. Soren,
P. Nayak, S. Das &
S. Rath
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Heard and Disposed of by Virtual Mode on : 09.04.2021
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P R E S E N T:
THE HONOURABLE SHRI JUSTICE K.R. MOHAPATRA
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ORDER
K.R. MOHAPATRA, J. This matter is taken up through video conferencing mode.
2. Heard Mr. Digambar Sethi, learned counsel for the Petitioners and Mr. P.K. Rath, learned counsel for the contesting Opposite Party No.1.
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3. The Petitioners in this CMP seek to assail the order dated 28th January, 2021 (Annexure-5) passed by learned Civil Judge (Senior Division), Bhadrak in CMA No. 226 of 2020 (arising out of C.S. No. 178- I of 2017) filed under Section 151 C.P.C.
4. Mr. Sethi, learned counsel for the Petitioners submits that C.S. No. 178-I of 2017 has been filed for partition. During pendency of the suit, learned Civil Judge (Senior Division), Bhadrak vide order on 15th January, 2018 in I.A. No. 563 of 2017 directed both the parties to maintain status quo over Lot No. 5 of Schedule 'GA' property pertaining to Khata No.150, Plot No.307 to an extent of Ac.0.10 decimals, Plot No.308 to an extent of Ac.0.04 decimals and Plot No.309 to an extent of Ac.0.06 decimals under Barapada mouza in the district of Bhadrak (for short 'the suit land'). Subsequently, alleging that the Petitioners- Defendants have violated the order of status quo on 13th March, 2020, an application in CMA No. 226 of 2020 was filed and learned Civil Judge vide his order dated 28th January, 2021 directed the I.I.C., Bhadrak Rural P.S. to implement the order dated 15th January, 2018 passed in I.A. No. 563 of 2017. It is his submission that when the Plaintiff-Opposite Party No.1 has already filed an application under Order XXXIX Rule 2-A C.P.C. alleging violation of the aforesaid order of status quo by the Defendants-Petitioners, a petition under Section 151 C.P.C. is not 3 maintainable. He further submits that implementation of order of injunction/status quo with police assistance is foreign to the provisions of the C.P.C. and cannot be resorted to in a petition under Section 151 C.P.C. It is his submission that hearing of the suit has not yet commenced and at this stage, in order to harass the Defendants-Petitioners, a petition under Section 151 C.P.C. has been filed and the impugned order has been passed. Hence, he prays for setting aside the impugned order.
5. Mr. Rath, learned counsel appearing for the contesting Opposite Party No.1 relying upon the decision of this Court in the case of Subal Kumar Dey -v- Purna Chandra Giri, reported in 1989 (I) OLR 398, submits that a petition under Section 151 C.P.C. is maintainable for implementation of the order of injunction/status quo. It is his submission that when learned trial Court has exercised its judicial discretion in granting a relief for implementation of the order of status quo, the same should not be interfered with by this Court when there is no illegality and irregularity in the same. He, therefore, prays for dismissal of the CMP.
6. Upon hearing learned counsel for the parties and on perusal of the impugned order, it appears that learned Civil Judge (Senior Division), Bhadrak vide his order dated 15.01.2018 has directed the parties to maintain status quo in respect of the suit land. The said order is still in force. There is an allegation by the Plaintiff-Opposite Party No.1 that the 4 Defendants-Petitioners on 13.03.2020 in utter disrespect to the order of status quo tried to shut down all the shop rooms existing over the suit land and evict the tenants. The matter was informed to the police and due to intervention the police, the Defendants-Petitioners could not evict them. They are, however, constantly trying to evict the shopkeepers by using muscle power. The Plaintiff-Opposite Party No.1, however, has filed an application under Order XXXIX Rule 2-A C.P.C. alleging violation of the order of status quo. But, since the Defendants-Petitioners are allegedly making constant attempts to violate the order of status quo, the relief under Order XXXIX Rule 2-A C.P.C. may not be sufficient to maintain the order passed. The Court in the guise of exercising power under Order XXXIX Rule 2-A C.P.C. cannot be a mute spectator to its order being violated. It is the duty and also has the power to see that the order passed by it is respected.
7. This Court in the case of Subal Kumar Dey -v- Purna Chandra Giri, reported in 1989 (I) OLR 398 in paragraph-9 held as follows:
"9. Next question of consideration relates to the validity of direction of the trial court to the officer-in- charge. Baliapal P.S. to render assistance for implementation of the order of injunction. As has been held in the decisions reported in AIR 1971 Andh Pra 33 (Rayapati Audemma v. Pothineni Narasimham) and AIR 1983 Cal 266 (Sunil Kumar Halder v. Nishikanta Bhandari), direction to the police for implementation 5 of order of temporary injunction is given by a Court in exercise of the inherent powers under Section 151, C.P.C. Inherent power is wide in its nature to protect the interest of the parties in a given case. It is not a power to be exercised for implementation of an order of the Court. Where violation of the order would be so prejudicial to a party that remedies or penalty for violation of the order available under the statute would not be sufficient, inherent power may be exercised. Therefore, a Court is to be careful before taking external help of police for implementation of the order........"
7. Thus, the Court has ample power to exercise its discretion under Section 151 C.P.C., when the remedy under Order XXXIX Rule 2-A C.P.C. will not be sufficient to remedy the prejudice caused to the applicant. The Hon'ble Supreme Court in the case of Meera Chauhan - v- Harsh Bishnoi and another, reported in (2007) 12 SCC 201 in paragraphs- 16, 17 and 18 held as follows:
"16. The power of Section 151 to pass order of injunction in the form of restoration of possession of the code is not res integra now,
17. In Manohar vs. Hira Lal [AIR 1962 SC 527] while dealing with the power of the Court to pass orders for the ends of justice or to prevent the abuse of the process of the Court, this Court held that the courts have inherent jurisdiction to issue temporary order of injunction in the circumstances which are not covered under the provisions of Order 39 of the Code of Civil Procedure. However, it was held by this Court in the aforesaid decision that the inherent power under Section 151 of the Code of Civil Procedure must be exercised only in exceptional circumstances for which the Code lays down no procedure.6
18. At the same time, it is also well settled that when parties violate order of injunction or stay order or act in violation of the said order the Court can, by exercising its inherent power, put back the parties in the same position as they stood prior to issuance of the injunction order or give appropriate direction to the police authority to render aid to the aggrieved parties for the due and proper implementation of the orders passed in the suit and also order police protection for implementation of such order."
8. Thus, the Court has also the power to restore possession in exercise of power under Section 151 C.P.C. in the event a party is dispossessed in utter violation of order of injunction/status quo. But, while exercising discretion under Section 151 C.P.C., the Court must be extremely careful and circumspect and only when the Court is satisfied that the remedy under Order XXXIX Rule 2-A C.P.C. will not be sufficient to maintain the order passed or remedy the prejudice caused to the applicant, it may exercise such discretion. If necessary, the Court may also direct the police authority to render aid and assistance for implementation of the restraint order. It is the duty of the Court to see that the order of injunction/status quo is respected and maintained during pendency of the suit and suit property is protected. The Court has also the power to put back the parties in the same position as they stood prior to issuance of the restraint order or give appropriate direction to the police 7 authority to render aid to the aggrieved parties for the due and proper implementation of the orders passed in the suit.
9. In the instant case, there is no dispute to the fact that the Plaintiff-Opposite Party No.1 has approached the local police to restrain the shop owners from being evicted forcibly. Learned Civil Judge taking the same into consideration and to prevent a situation from recurrence exercised its judicial discretion in directing the I.I.C., Bhadrak Rural P.S. to implement the order dated 15th January, 2018 passed in I.A. No. 563 of 2017.
10. Hence, I find no infirmity in the impugned order as no ground is made out to establish that learned trial Court has exercised its jurisdiction illegally or with material irregularity. Accordingly, this CMP being devoid of any merit stands dismissed.
11. As the restrictions due to the COVID-19 situation are continuing, learned counsel for the parties may utilize a soft copy of this order available in the High Court's website or print out thereof at par with certified copy in the manner prescribed vide Court's Notice No. 4587 dated 25th March, 2020.
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K.R. Mohapatra, J.
Orissa High Court, Cuttack.
Dated the 9th April, 2021/bks