SARASA PATRA Vs. CH KASHINATH PATRA

JUDGEMENT

(1.) THIS writ petition has been filed challenging to the legality and the correctness of the order passed by the Civil Judge (Senior Division), Bhubaneswar on 21.4.2001 in Title Suit No. 208 of 1996 and the confirming judgment delivered on 11.10.2002 by the Additional District Judge, Fast Track Court No. 2, Bhubaneswar in C.R. No. 15/5 of 2002.

(2.) PETITIONERS are the plaintiffs and the opposite party is the defendant in Title Suit No. 208 of 1996. Plaintiff No. 1 is the wife and plaintiff No. 2 is the son of the defendant. Plaintiffs have filed the aforesaid suit inter alia for the declaration that defendant is not entitled to evict them from the suit house or to sell it to strangers and to permanently injunct him in that respect. Plaintiffs filed Misc. Case No. 220 of 1996 under Order 39, Rules 1 and 2, C.P.C. for temporary injunction. Notwithstanding the objection of the defendant that the suit property is his self acquired property and he has every right to alienate the suit land and that he is required to do so because of the conduct of the plaintiff No. 2 in not providing maintenance to him, learned Civil Judge granted temporary injunction. Defendant preferred Misc. Appeal No. 79 of 1996 and that was dismissed in the lower appellate Court. Defendant then filed Civil Revision No. 114 of 1998 in this Court but the Civil Revision was not admitted. While disposing of that Civil Revision, this Court observed that :

(3.) LEARNED counsel for the petitioner argued that the impugned order is illegal and without jurisdiction in as much as the provision in Section 151, CPC is mainly procedural enabling the Court to invoke the inherent power to save the proceeding from abuse of process of Court and therefore, a substantive relief cannot be granted by invoking that provision. In support of that contention, he relies on the ratio in the case of Gorivelli Appanna v. Gorivelli Seethamma, AIR 1972 A.P. 62. Learned Counsel for the petitioners further argued that equity does not stand in favour of the petitioners in as much as the family settlement document, Annexure 1, indicates that the total family property and assets were valued at Rs. 1,16,000/ and while receiving his share including the furniture and wooden articles etc. it was settled that a total sum of Rs. 18,000/ in three equal instalments of Rs. 6,000/ was to be received by the defendant. Such amount having already been paid to the defendant the later has no legitimate claim over the suit properties and apart from that the circumstances in which the plaintiffs agreed to the recital regarding payment of monthly maintenance @ Rs. 6,000/ that has been explained in the plaint and in that respect proper relief has also been sought for in the suit. Accordingly, he argued that when the relevant averment in Annexure 1 is in dispute and an issue has been framed, grant of interim maintenance on the basis of that clause is impermissible and that would amount to pre judging the issue. Accordingly, he argued to set aside the impugned orders of maintenance. Incidentally, he also argued that defendant is not a person in distress and he has sufficient properties to maintain livelihood and under such circumstance, the plea of destitution is a myth.