S.K.MISHRA, J. W.P.(C ) NO.2086 OF 2010 (Decided on 4.11.2010) PADMANAVA CHOUDHURY ……….. Petitioner. .Vrs. DEBENDRA KUMAR MOHANTY ………..Opp.Party. CIVIL PROCEDURE CODE, 1908 (ACT NO.5 OF 1908) – ORDER 39, RULE 1 & 2. For Petitioner - M/s. C.Choudhury, B.Mohanty, D.Chhotray, S.Mohanty, & B.Maharana. For Opp.Party - M/s. B.Mahanty, D.P.Mahanty, R.K.Nayak, B.Das, T.K.Mohanty. S. K. MISHRA, J. The opposite party in Misc. Case No. 22/241 of 2001, arising out of Title Suit No. 249 of 2001 of the court of the Ist Additional Civil Judge (Senior Division), Bhubaneswar has assailed the order passed by the Civil Judge (Senior Division) on 4th October, 2004, which has been confirmed by the learned Ad hoc Addl. District judge, F.T.C. No.3, Bhubaneswar in F.A.O. No. 24/13/152 of 2006/2004 temporarily injuncting him from creating any disturbance over the suit land. 2. The lands, for which the present case has been initiated, measure an area of Ac.0.41 decs. pertaining to three plots. Those plots are; (i) Plot No.261, Khata No. 296, area Ac.0.18 decs. corresponding to Plot no.261/710, Khata No. 299/11 Area Ac.-.18 decs. (ii) Chaka Plot no.642, Chaka No.229, Area Ac.0.13 decs. of Mouza-Saleswar, and (iii) Khata No. 515, Chaka Plot No.1818, Area Ac.0.10 decs. Mouza-Jagannathpur, Dist. Khurda. The first two plots are the subject matter of the dispute in O.S. No.206 of 1986. The civil litigation is at present pending before this Court in S.A. No.34 of 1996. The third plot bears Chaka Plot No.1818 is the subject matter of O.S. No. 180 of 1999. The matter is at present pending before the learned District Judge, Bhubaneswar in R.F.A. No.73 of 2005. The present opposite party filed a suit for perpetual injunction. In the said suit he filed an application under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure, 1908, hereinafter referred as the Code, for brevity. The opposite party, inter alia, alleged that he purchased the suit land from the original recorded tenant Hata Pradhan under two Regd. Sale Deeds executed on 19.07.1985 and 24.07.1987. Since then, he has been possessing the suit land and it has been mutated in his favour during consolidation operation. It is his further case that the defendant-opp.party no.1, widow of late Hata Pradhan and defendant no.2 claiming as the daughter of said Hata Pradhan challenged the first Sale Deed made by Hata Pradhan in Title Suit no.206 of 1986 before the Munsif, Bhubaneswar. Though the suit was decreed in their favour, the said decree was set aside by the Appellate Court in Title Appeal No.19 of 1988 and the sale deed was held to be valid. 3. The second sale deed was executed by defendant no.1 after the death of Hata Pradhan in Title Suit no.180 of 1999 and the same is still the subject matter of the pending litigation. During the pendency of the said suit, defendant nos.1 and 2 jointly sold the disputed land to the present petitioner on 01.11.2000 knowing fully well that Hata Pradhan has already sold the suit land to the present opposite party. It is the further case of the petitioner that the said Hata Pradhan during his life time has transferred his suit land and defendant no.1 has no right, title or interest over the suit land to transfer the same to opposite party no.2. Hence, the petitioner has not acquired any right, over the suit land. Therefore, he prayed for temporary injunction, claiming that he will suffer irreparable loss otherwise. 4. The present petitioner i.e. the opposite party before the learned Senior Civil Judge filed his objection denying the averments made in the interim application. He, inter alia, pleaded that the petitioner has no cause of action and the suit is bad being hit by Sections 10 and 11 of the Code. The defendants further pleaded that the sale deeds alleged to have been executed by the Hata Pradhan in favour of Debendra Kumar Mohanty are under challenge on the ground that those sale deeds were forged documents. It is specifically pleaded that the Hata Pradhan was an illiterate and he used to affix thumb impression on different documents. Thus, the signatures appearing on the documents purporting to be of Hata Pradhan are forgeries. The present petitioner has further pleaded that Labanyabati Pradhan and Charubala Pradhan while in peaceful possession of the suit land have alienated it in his favour for the legal necessities and delivered possession thereof to him. Since then, the present petitioner is in possession of the suit land. So the petitioner prayed for dismissal of the interim application. 5. After taking into consideration the documents led by both sides and the averments made in the petition as well as in the counter affidavits, the learned Ist Additional Civil Judge (Sr. Division), Bhubaneswar came to the conclusion that a prima facie case exists in favour of the petitioner, balance of convenience lies in favour of issuing injunction and unless such injunction is granted, the petitioner shall suffer irreparable loss. Accordingly, he allowed the Misc. Case on contest and temporarily restrained the opposite parties, i.e. the present petitioner from interfering in the peaceful possession of the petitioner, i.e. the present opposite party over the suit land till disposal of the suit. The petitioner preferred an appeal before the District Judge, which came to be disposed of by the Ad hoc Additional District Judge, F.T.C.-3, Bhubaneswar, who concurred with the findings recorded by the learned Civil Judge (Senior Division) and therefore dismissed the Appeal. Such orders of the learned courts of the original and the appellate jurisdiction are called in question in this writ application. 6. In course of hearing of the writ application, the learned counsel for the petitioner submitted that the findings recorded by the learned Civil Judge (Senior Division) as well as the appellate court are erroneous in view of the fact that the lands in question have not been recorded in the name of the present opposite party in any consolidation proceeding. Rather, the lands have been recorded in their name in pursuance of the order passed by the Tahasildar in a Mutation case. Secondly, it is contended that in the earlier litigation i.e. in O.S. No.206 of 1986, the opposite party namely, Debendra Kumar Mohanty has categorically admitted that he has not taken possession of the suit land. Thereafter, on several occasions proceedings were started under section 144 of the Criminal Procedure Code, 1973, (in short, “Cr.P.C.”, for brevity). The Executive Magistrate took note of the possession of Labanyabati and her daughter and dropped 2 the proceedings. These facts, it is contended that would show that the said Debendra Mohanty is not in possession of the land in question. He therefore contended that the writ petition be allowed and the orders passed by the courts in original and appellate jurisdiction be set aside. 7. The learned counsel for the opposite party, on the other hand submitted that the court has carefully assessed the materials on record and has come to a just and proper conclusion for which no interference is required. Injunctions are discretionary reliefs. Temporary injunctions are guided by Rules 1 and 2 of Order XXXIX of the Code. The settled principles, which govern the exercise of the discretion conferred on this Court under these rules, are that before issuing any order of temporary injunction, the Court must be satisfied; firstly, that there is a serious question to be tried in the suit and that on the facts before the Court there is a probability of his being entitled to the relief asked for by the plaintiff –petitioner; secondly, the Court’s interference is necessary to protect him from that species of injury which the Court calls irreparable, before his legal right can be established on trial; and thirdly, that the comparative mischief or inconvenience which is likely to issue from withholding the injunction will be greater than that which is likely to arise from granting it. The first of the above conditions is what is generally termed “a prima facie case”. In other words, the prime facie existence of a right and its infringement is the first condition for the grant of a temporary injunction. Prima facie case is not to be confused with prima facie title. Prima facie title can be established by evidence. On the other hand, a prima facie case means, a substantial question raised bona fide which at first sight needs investigation and adjudication. But the existence of a prima facie case by itself is not sufficient to grant injunction of the temporary nature. The applicant should further satisfy the second condition by showing that unless such an injunction is granted in his favour, he shall suffer an injury, which cannot be adequately compensated by awarding damages. The third condition is called the principle of balance of convenience. In applying these principles, the court should weigh the amount of substantial mischief that is likely to be caused to the applicant if the injunction is refused and balance it with that which is likely to be caused to the other side if the injunction is granted. If on such consideration, the Court comes to the conclusion that pending adjudication of the issues, the subject matter should be maintained in status quo, an injunction for that purpose should be issued. It must however be remembered that a temporary injunction should only be granted if all the three conditions are satisfied. Even where all the above conditions are satisfied, a temporary injunction may nevertheless refused for other reasons. This being the principle, the present case should be examined to consider, whether the conditions are fulfilled. 8. As far as prima facie case is concerned, since Regd. Sale Deeds have been executed in favour of the present opposite party and the name of the present opposite party has been mutated with respect to the suit land, it is prima facie established that he has got a substantial question of bona fide right in his favour. However, coming to the second and third considerations i.e. irreparable loss and balance of convenience, it is 3 seen that the present petitioner, in an earlier litigation, which is pending before this Court at the second appellate stage, has stated before the trial court that as he was not staying in the village he had not taken possession of the suit land. He has further stated that as Hata Pradhan told them at the time of selling his land to the opposite party that he would stay on his land till his death. Hence the opposite party has not taken possession of the land till giving of the deposition. Thus, it appears that as far as part of the suit land is concerned, on execution of the sale deed, he has not taken possession thereof. As far as the other portion of the land is concerned, the leaned counsel for the petitioner drew attention of the court to a series of orders passed by the Executive Magistrate in proceedings under Sections 144 of the Cr.P.C. It appears from those orders that time and again the opposite party has initiated proceedings under section 144 of the Cr.P.C., but the same has been dropped. Though an order passed under Section 144 of the Cr.P.C. is not binding on the Civil Court nevertheless, the same has to be considered as admissible material especially there is scramble possession and the court is required to determine prima facie possession of any of the parties. However, such materials are rebutable, but can only be done so at the stage of adducing evidence by the parties. 9. Thus, it is seen that prima facie the contesting opposite party i.e. the petitioner in the original court, is not in possession of suit lands. Hence, neither the balance of convenience is in favour of issuing injunctions, nor there is any chance of him suffering irreparable loss. 10. On the basis of the aforesaid discussion, this Court is of the opinion that the learned courts of original and appellate jurisdiction have come to erroneous findings regarding the conditions of irreparable loss and balance of convenience. Therefore, this court comes to the conclusion that the orders passed by the learned original and appellate court are not sustainable and hence, the same are set aside. In the result, the writ application is allowed and the orders passed by the learned original court in Annexure-2 and the learned appellate court in Annexure-9 are hereby quashed. No cost. Writ petition allowed. 4