KABITA DASH Vs. UNITED BANK OF INDIA

JUDGEMENT

(1.) THE appellant, who is the petitioner before the court of learned Civil Judge (Senior Division), Bhubaneswar in I.A. Nos.938 of 2010 and 488 of 2011 arising out of C.S. No.2004 of 2010, has preferred the appeal challenging the common order dated 25.11.2011 passed by the learned Civil Judge (Senior Division), Bhubaneswar dismissing both the I.As under order 39 Rules 1 and 2 C.P.C.

(2.) AS found from the impugned order, the petitioner being the plaintiff in the suit for permanent injunction and compensation has taken a stand that she and her husband (defendant No.2 in the suit) due to their family dispute have been staying separate from each other. Before the family dispute arose, they had applied to B.D.A. for allotment of the plaint scheduled A and B properties, and, accordingly the B.D.A. allotted the properties in their favour. After execution of the agreements, B.D.A. delivered possession of the property to them. At present, the petitioner has been in occupation of both scheduled A and B properties and her husband is living separately. Her husband, by practising fraud and in connivance with the respondent -Bank, obtained loan without mortgaging the properties or entering into any tripartite agreement with B.D.A., the real owner of the properties. In the meanwhile, B.D.A. has cancelled the allotment of Scheduled A and B properties vide O.P.P. Case No.34 and 35 of 2006 but has not yet evicted the petitioner from the properties. This being the position the Bank has no legal right to evict the petitioner or disturb her possession in any manner in respect of the suit property.

(3.) ACCORDING to the appellant, she being in possession over the suit properties, her possession be protected till disposal of the suit. On behalf of the appellant, it is argued that she can maintain a petition for injunction against all except the true owner who, according to the appellant, is the B.D.A. It is also contended that since the owner of the suit properties has not transferred the properties in favour of the appellant and/or her husband by any registered instrument and whereas the order of allotment of the properties has been cancelled by the B.D.A, any document executed in favour of the Bank relating to the suit property is void. It is also contended that since the appellant has taken the plea of fraud and mis -representation practised by her husband in connivance with the Bank while obtaining loan, the learned lower court ought to have taken into consideration the decisions reported in (2009) 8 SCC -646 and AIR 1989 SC 2097 before going to reject the appellant's prayer for interim injunction, because, in the decisions cited above, the Hon'ble Supreme Court have held that despite the restrictions prescribed in the Act, the Civil Court would have jurisdiction to entertain a suit based on the allegation of fraud.