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1998 DIGILAW 364 (ORI)

SARALA CO-OPERATIVE SOCIETY v. KAMESWAR PRIMARY FISH PRODUCTION MARKETING CO-OPERATIVE SOCIETY LTD.

1998-10-27

P.K.MISRA

body1998
JUDGMENT : P.K. Misra J. 1. The Plaintiff-petitioners filed T.S. No. 150/96 for declaration that the villagers of village Arakhia have right of catching fish from the suit schedule-A property and in the alternative, for a direction that in case it is found that they have no such right, the lease for the year 1996-97 granted by Defendant No. 2 in favour of Defendant No. 1 in respect of the disputed property be declared as invalid and for a further direction that the said property should be settled by way of public auction as per the principles of Lease enunciated by the State of Orissa. !lnd for permanent injunction restraining defndant No. 1 from interfering with the peaceful possession of Plaintiff-villagers in exercising right of fishery over the disputed property in any manner. 2. During the pendency of the suit an application under Order 39, Rules 1 and 2, CPC was filed. In the said application, initially an interim order of status quo was passed by the trial court which was confirmed by the trial Count after hearing both sides. Thereafter, Defendant No. 1 filed Misc. Appeal No. 119/96 which has been allowed by the Additional District Judge. Hence the present Civil Revision. 3.. It is contended on behalf of the Petitioner's that the findings of the appellate court are illegal and the Plaintiffs have established their prima facie right over the property and they will suffer irreparable loss in case injunction is refused. It is further claimed that the balance of convenience is in their favour. Though the appellate court found that the Plaintiffs have prima facie case, they have failed to prove that they will suffer irreparable injury if injunction is refused. On the other hand; the appellate court held that since a lease had been granted in favour of Defendant No. I, it will cause injury to Defendant No. 1 in case the order of status quo is confirmed. The appellate court further found' that the balance of convenience was in favour of Defendant No. 1 rather then 'in favour of the Plaintiffs. 4. The jurisdiction of a revisiona1 court is very restricted. Unless same jurisdictional error is committed or unless it is shown that jurisdiction has been exercised with material irregularity, the revisional court should not interfere with the order of the lower court even though the order of the lower court may be erroneous. 4. The jurisdiction of a revisiona1 court is very restricted. Unless same jurisdictional error is committed or unless it is shown that jurisdiction has been exercised with material irregularity, the revisional court should not interfere with the order of the lower court even though the order of the lower court may be erroneous. More erroneous appreciation of evidence on record does not constitute exercise of jurisdiction with material irregularity. In the present case, the appellate court ha~ adverted to the relevant circumstances appearing in the case and has refused to confirm the order of status quo. Defendant No. 1 is claiming right on the basis of a lease granted by the State. Prima, facie, it cannot be said that operating the lease by Defendant No. 1 would cause any irreparable loss to the Plaintiffs as Plaintiff would not be in a position to recover by way of damages if ultimately they succeed in the suit. Similarly, it cannot be said that balance of convenience is in favour of Plaintiffs, inasmuch as Defendant No. 1 is seeking a right on the basis of lease grantedto it by the State. At any' rate, it cannot be said that the appellate court has exercised jurisdiction with material irregularity. Therefore, there is nothing to interfere in this Civil Revision. 5. In this Civil Revision, some of the villagers have also entered appearance through counsel and they have supported the case 'of the Petitioners. Similarly, Defendant No. 3, another Cooperative Society, has also been impleaded as an opposite party and has entered appearance through counsel. The learned Counsel appearing for the aforesaid Cooperative Society submitted that the lease in favour of opposite party No. 1 relates to the area between Balia Bandh to Arakhia Bandh, whereas opposite party No. 3 has got a lease for the area between Arakhia Bandh Boriki Bandh. Opposite party No. 1 further states that taking advantage of the lease," opposite party No. 1 is encroaching upon the area granted to opposite party No. 3. Keeping in view the aforesaid submission, while confirming the order of the appellate court, it is made clear that opposite party No. l can operate only in the area in accordance with the lease granted to it, that is to say, between Balia Bandh and Arakhia Bandh and cannot encroach upon the area between Arakhia Bandh to Boriki Bandh. Keeping in view the aforesaid submission, while confirming the order of the appellate court, it is made clear that opposite party No. l can operate only in the area in accordance with the lease granted to it, that is to say, between Balia Bandh and Arakhia Bandh and cannot encroach upon the area between Arakhia Bandh to Boriki Bandh. Similarly, it is made clear that opposite party No. 3 should not interfere with the area granted to opposite party No. !. 6. It is necessary that the trial should be expedited. It is stated that the suit has been filed in representative capacity. The trial court after complying with the requirements of Order I, Rule 8, C.P.C., shall proceed to dispose of the suit as expeditiously as possible, preferably by end of June, 1999. Subject to the aforesaid directions and clarifications, the Civil Revision is disposed of. No costs. Civil revision disposed of.