Judgment:
ORDER
1. This is an application under Article 227 of the Constitution of India.
2. Petitioners have challenged in this writ petition the order dated 22.4.2008 passed by the learned Addl. District Judge, Bhadrak in F.A.O. No. 6 of 2008 setting aside the order dated 21.2.2008 passed by the learned Civil Judge (Senior Division), Bhadrak in LA. No. 35 of 2008 and directing the parties to maintain status quo over the suit land till disposal of the original suit.
3. Opposite party as the plaintiff has filed the suit for partition. In the said suit, he filed a petition under Order 39, Rules 1 and 2 read with Section 151 of the Civil Procedure Code seeking injunction against the defendants. He specifically stated in the said petition that the parties have possessed the land amicably, but the properties have not been partitioned by metes and bounds. If the defendants will not be restrained, plaintiff will be prejudiced and sustain irreparable loss and injury and if construction will be raised over the suit land, he will face difficulties in getting back the land. Therefore, balance of convenience was in his favour. The petitioners filed objection stating that the defendant is in exclusive possession of the property and entitled to half share. Thus, the plaintiff has no prima facie case and balance of convenience does not lie in his favour. There was no chance of irreparable loss to the plaintiff because he was only entitled to half share out of the disputed property and construction was raised only over Ac.0.06 decimals of land which was much less than the half share. The trial Court by its order dated 21.2.2008 rejected the plaintiff's application for injunction and vacated the status quo order passed on 14.1.2008 on the ground that the plaintiff-petitioner has no prima facie case, balance of convenience is not in his favour and he will not suffer irreparable loss or injury if injunction will not be granted. The plaintiff-opposite party being aggrieved by the said order, filed an appeal before the learned Addl. District Judge, Bhadrak. The appellate Court vide order dated 22.4.2008 without recording any reason whatsoever, set aside the order passed by the trial Court and without considering the three principles, i.e., prima facie case, balance of convenience and irreparable loss, directed the parties to maintain status quo.
4. The learned Counsel appearing for the petitioners submits that the trial Court has examined the records and come to a specific finding that the plaintiff-petitioner has not satisfied the three principles to obtain an order of injunction. Therefore, it has rightly rejected the application for interim injunction. But the appellate Court has reversed the said finding. Before passing an order of status quo, the learned Addl. District Judge should have examined the materials available before him. From paragraph-3 of the impugned order passed by him, it appears that there was a partition of the suit property and parties are possessing their respective shares but he has failed to consider whether the plaintiff has a prima facie case to obtain an order of injunction and without discussing the same he has passed the order of status quo which needs to be reversed by this Court. He further submits that the defendants-petitioners will not claim any equity in case they will be allowed to raise construction over the disputed plot which is only in respect of Ac.0.06 decimals of land and much less than half of the suit area and they are entitled to half share in the suit property. In support of his contention he has cited a decision of this Court in the case of Smt. Padmini Sekhar Deo and Ors. v. Pankajini Thakur and Anr. reported in 88 (1999) CLT 297.
5. The learned Counsel appearing for the opposite party vehemently objected to the same and states that the suit property was recorded jointly as per the R.O.R. and since the plaintiff has filed a suit for partition and their respective shares have not been carved out, the appellate Court has rightly passed the order of status quo. Therefore the said order need not be interfered with by this Court. In support of his contentions, he has cited decisions reported in 1986 (II) OLR 145 (Narayan Bisoi and Anr. v. Raghunath Bisoi and 1987 (II) OLR 587 Judhistira Misra and Ors. v. Sri Sri Radha Bansi Gopinath Jew Thakur and Ors.).
6. This Court has verified the documents filed by the parties. The petition for injunction filed under Order 39, Rules 1 and 2 of the Civil Procedure Code reveals that the parties are possessing the land amicably and the order passed by the learned Civil Judge (Senior Division), Bhadrak reveals that the plaintiff has no prima facie case, balance of convenience is not in his favour and he will not sustain irreparable loss and injury if injunction will not be granted and while reversing the said order, the learned Addl.District Judge, Bhadrak has not given any reason in support of his finding though he has recorded the objection of the present petitioners that there was partition of the suit property. Parties have possessed their respective shares amicably. The said fact has not been considered in accordance with law. Without being satisfied about the prima facie case, balance of convenience and irreparable loss, he directed the parties to maintain status quo as the property was recorded jointly in the R.O.R.
The decisions cited by the learned Counsel for the opposite parties reveal that during pendency of the suit for partition, one of the parties made preparation for construction of a pucca wall and this Court was of the view that during the pendency of a suit for partition, no permanent construction should be made or permitted over the suit homestead land. All the parties shall maintain status quo till their shares are defined by the preliminary decree. Adjustments and equities are to be settled in the final decree proceeding. The said principles were decided in the facts and circumstances of those cases.
7. Law is well settled that a little difference in facts and additional fact may make a lot of difference in the precedential value of a decision and judicial utterances are made in setting up a fact of a particular case. Court cannot blindly place reliance on a decision without considering the facts and circumstances of a case. Reference may be made in the above regard to the decisions reported in 2002 AIR SCW 4939 (Bhavnagar University v. Palitana Sugar Mill Pvt. Ltd. and Ors.) and 2008 AIR SCW 438 (Sarva Shramik Sanghatana (K.V.), Mumbai v. State of Maharashtra and Ors.).
8. In the present case, since parties are in exclusive possession of the properties, it makes the difference. If one of the parties is in exclusive possession of a joint property then he possesses the same as a co-owner. The plaintiff, as pointed out in the above paragraphs, admits that he has possessed the land by mutual adjustment and is in exclusive separate possession. If a party takes recourse to. any contrivance to dispossess another during pendency of the suit either in violation of the order of injunction or otherwise, the Court indisputably will have jurisdiction to restore the parties back to the same position. It is not the law that a party to a suit during pendency thereof shall take law into his hands and dispossess the other co-sharer. It is now well settled principle of law that Order 39, Rule 1 of the Civil Procedure Code is not the sole repository of the power of the Court to grant injunction. Section 151 of CPC confers power upon the Court to grant injunction if the matter is not covered by Rules 1 and 2 of Order 39 of the Civil Procedure Code. If a person is entitled to a prohibitory injunction, a fortiori, he shall also be entitled to mandatory injunction. The aforesaid principle is settled by the apex Court in the decision reported in 2008 (4) SCC 791 (Tanusree Basu and Ors. v. Ishani Prasad Basu and Ors.).
9. In view of the above principles of law and as the petitioners have stated that they will not claim any equity, this Court in exercise of this jurisdiction under Article 227 of the Constitution of India quashes the impugned order dated 22.4.2008 passed by the learned Addl. District Judge, Bhadrak in F.A.O. No. 6 of 2008 as he has not exercised the jurisdiction vested in him.
The writ petition is allowed. No costs.