Orissa High Court
Nandakishore Nayak And Two Ors. vs State Of Orissa And Two Ors. on 21 February, 2003
Equivalent citations: 2003(I)OLR473, 2003 A I H C 2043, (2003) 1 ORISSA LR 473 (2003) 2 CURCC 214, (2003) 2 CURCC 214
Author: P.K. Tripathy
Bench: P.K. Tripathy
ORDER P.K. Tripathy, J.
1. Learned counsel for both the parties are present. Petitioners have filed today in the Court the above noted Misc. Case with the prayer to pass appropriate interim order to prevent interference on the rights of the plaintiffs by the defendants. Since the revision is being taken up. on consent of the parties for disposal at the stage of admission, therefore, appropriate orders shall be passed in the Civil Revision Petition and therefore no separate order need be passed on the aforesaid application filed in Court today.
2. Plaintiffs in Title Suit No. 688/678 of 2001/1999 of the Court of Civil Judge (Jr. Division), Bhubaneswar have filed this Civil Revision Petition Under Section 115, CPC challenging to legality and correctness of the order passed on 29.6.2002 by the said Civil Judge and the confirming order passed by learned Addl. District Judge, Bhubaneswar on 21.11.2002 in F.A.O. No. 74 of 2002 by refusing to grant temporary injunction in favour of the plaintiffs by issuing an order of restraint directing the defendants not to possess or to carry on any subsequent activities on the suit area measuring Ac.5.15 decimals from out of Ac. 95.00 in plot No. 291 (according to 1931 Settlement).
3. It is the admitted case of the parties that in the Record- of-Right distributed in the year 1988-89 the disputed plot has been recorded in the name of the State Government of Orissa. i.e.. Defendant No. 1 and on 3.4.2000 defendant 1 and 2 have allotted Ac. 19.00 out of the same in favour of Defendant No. 3, i.e.. Bhubaneswar Development Authority (in short the 'BDA') to carry out the social housing scheme. . .
4. The claim of the plaintiffs is based on a lease said to have been executed by the ex-proprietor and intermediary i.e. the Ruler of Patia Estate and granting a Hata Patta on 7.5.1931. Plaintiffs assert corroboration to that lease by stating that during the Estate Abolition Proceeding in the Ekapadia submitted by the ex-proprietor the aforesaid lease was intimated to the O.E.A. Collector, plaintiffs were not recorded in the Settlement of the year 1973 but a note of possession was endorsed in their favour and thereafter when they initiated action under the O.E.A. Act plaintiffs were advised to approach the Civil Court. With the aforesaid assertion and the contention that the Record-of-Right prepared in the name of Defendant No. l in the year 1988 is illegal and not sustainable plaintiffs filed the aforesaid suit for declaration of title, confirmation of possession and permanent injunction. In the above noted suit plaintiffs also filed the application under Order 39 Rule 1 and 2, CPC which was registered as Misc. Case No. 577/609 of 2001/1999. As noted above, as per the order passed on 29.6.2002 learned Civil Judge (Jr. Divn.) refused to grant temporary injunction in favour of the plaintiffs on the ground of valid title and possession being prima facie appearing in favour of the Defendants. In the above noted appeal, preferred by the plaintiffs, learned Addl. District Judge (FTC No. IV), Bhubaneswar also considered the pleadings and contention of the parties and adopted to the conclusion of the learned Civil Judge (Jr. Division) and accordingly dismissed the appeal on 11.11.2002.
5. In course of hearing various contentions have been raised by the plaintiffs/petitioners in support of the contention regarding existence of prima facie case on the basis of a good title in favour of the plaintiffs. In that respect, also several decisions were relied on, but it is not necessary to note the same because from the pleadings it appears that the plaintiffs make out a prima facie case.
6. It is the settled position of law that in an application for temporary injunction applicant is not to succeed in getting such an equitable relief merely on proof of prima facie case. On the other hand, along with the existence of a prima facie case petitioner has to prove on record that the balance of convenience leans in his favour and refusal to grant injunction will ensure in irreparable loss and injury which cannot be compensated. In this case, the Courts below on due consideration of the facts and evidence on record have taken note of the glaring circumstance that because the Record-of-Right of the year 1988 has been prepared in the name of Defendant No. 1. in the absence of proof of factum of loss of possession of the said defendant it cannot be presumed that the plaintiffs are in possession of the suit property. In other words, the Courts below have ruled out the possibility of the possession in favour of the plaintiffs merely because they have a prima facie case i.e. an arguable case. That is the dominant reason to refuse the relief of temporary injunction to the plaintiffs.
7. This Court while exercising the revisional jurisdiction does not have unfettered jurisdiction to interfere on factual findings recorded by the Court below unless this Court finds that there exists illegality or perversity in recording such factual findings. The revisional Court can also interfere with impugned order if it finds that jurisdictional error has been committed by the Courts below i.e. to say the Court below either decided the issue without having jurisdiction or though such Court had the jurisdiction but it failed to exercise such jurisdiction in accordance with law while considering the prayer of the petitioner/appellant. Apart from that, in the above context, the revisional Court can also exercise jurisdiction under Section 115(1), CPC if the Court finds that the Court below having jurisdiction to adjudicate the dispute and while so adjudicating such dispute acted illegally or with material irregularity. In the case at hand, this Court does not find any such illegality or perversity in the approach and adjudication made by the Courts below.
8. Looking to the pleading of the plaintiffs and the fact- situation involved in this case, this Court finds no justification for the plaintiffs to apply for temporary injunction when there is no prima facie proof that plaintiffs are in possession of the property. When the claim of the plaintiff through the process of temporary injunction is to dispossess a party in possession such a relief cannot be granted to him because that is against the law of equity. For that matter the provision in Order 39, Rule 1. CPC and the principles enunciated by Courts strongly advocate not to grant temporary injunction, when the effect is to dispossess a party in possession of the property on the assertion of a valid right.
9. For the reasons indicated above, this Court finds no merit in the application Under Section 115. CPC nor in the application filed today so as to interfere with the impugned orders or to grant temporary injunction in favour of the plaintiffs to restrain the defendants and more particularly Defendant No. 3 not to possess the land when that land has been allotted to Defendant No. 3 for a public purpose i.e. for undertaking social housing scheme. In course of argument learned counsel for Defendant No. 3 has relied on the case of Pabani Barik v. Bhubaneswar Development Authority represented through its Secretary and Anr., 2001 (II) OLR 221 to state that from the self-same plot for another patch of land a similar attempt by another persons has been negatived by this Court by refusing to grant interim protection. This Court follow the said ratio so far as the present case is concerned.
10. For the reasons indicated above, the Civil Revision Petition is dismissed with costs. Hearing fee is assessed at contested scale.
11. In course of hearing of the aforesaid revision, this Court finds that though the extent of the suit land is more than five acres and the suit property situates within the locality of Bhubaneswar having a higher rate of valuation, the plaint has been admitted by the Court below on a nominal value put in the plaint by the plaintiffs. It has been propounded by this Court in some decisions that valuation of a suit and payment of Court-fees is a matter between the plaintiff and the Court and the defendants have no say in that respect. It is the provision in Order 7, Rule 11, CPC to reject the plaint if the suit is not properly valued or required Court-fee is not paid. In other words, a plaint shall not be admitted, inter alia, if there is defect in valuation or non-payment of Court-fee in accordance with law. Therefore, in this State, the system is prevalent that the plaint be checked by the chief ministerial officer, i.e..., Sheristadar prior to placing the same before the Bench for admission. In that respect not only Sheristadar should be honest and sincere to his job but also he should be capable of performing that job efficiently and effectively. Therefore. District Judges have been given the discretion to select suitable staff from the eligible category to be posted as Sheristadars. Apart from that, whether or not the Sheristadar performs his duty properly, it is the duty and responsibility of the presiding officer to go into that aspect at the stage of consideration of admission of the suit. In that respect, undoubtedly a judicial officer cannot plead ignorance of law to take an excuse for not properly verifying the aspect of valuation. Therefore, on receipt of a copy of this order, the Civil Judge (Jr. Division), Bhubaneswar shall do well to verify that aspect and to pass appropriate order. Learned District Judge shall see to it that there should be a periodical inspection by him of the Civil Courts of the original jurisdiction when the valuation aspect should be particularly gone into. Apart from that, there being requisite instructions from this Court relating to imparting training to the ministerial officers by the Registrars of the Civil Courts, learned District Judge shall ensure and report compliance that such training programmes being undertaken, not for the name sake, but effectively and properly to the satisfaction of the District Judge. In outlying stations such training programme be taken up periodically by the Senior most Judicial Officers where there are more than one Officer, Sheristadars and Senior grade clerks be also directed to participate in such training programmes. The Registry of this Court may also ensure from all the districts relating to compliance of such training programmes and the matter may be placed before the Court for an administrative decision to take suitable action against the erring District Judges in that respect because to control the subordinate Courts within the Judgeship is not only the duty but also the responsibility of the District Judges and in the event of failure the High Court should take suitable action including considering the question of efficiency of such judicial officers to function as District Judges.