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2009 DIGILAW 461 (ORI)

SRI NANALAL ARJUN v. STATE OF ORISSA

2009-06-26

SANJU PANDA

body2009
JUDGMENT : Sanju Panda, J. - The Petitioner has filed this Writ Petition under Article 227 of the Constitution of India challenging the Order Dated 11.7.2008 passed by the Learned District Judge, Khurda in FAO No. 104 of 2007 confirming the Order Dated 12.10.2007 passed by the Learned Civil Judge (Senior Division), Bhubaneswar in Interim Application No. 442 of 2007 arising out of Civil Suit No. 550 of 2007. 2. The facts as unfolded in the petition are as follows: One Arjun Lodha & his sons constituted a partnership firm on 4.11.1953 in the name & style of "M/s. Arjun Lodha". They carry on partnership business including the business of mining. The firm applied for mining lease (iron ore) in respect of Schedule-A area. Accordingly, a lease deed was executed between the State of Orissa & the partnership firm. The partnership firm was again reconstituted on 21..10;1982.Theree.fter, as there arose some dispute between the partners of the firm, the same was referred to Arbitrator as per Clause 24 of the reconstituted partnership deed. The Arbitrator passed the award on 10th August, 1989 directing the present Petitioner Nanalal Arjun to retire from the partnership firm after allocation of certain properties. The present Petitioner & Opposite Party Nos. 5 & 6 are the sons of Arjun Lodha. The award of the Arbitrator was challenged before the Learned Subordinate Judge, Chainbasa who by his Order Dated 5.5.1992 set aside the same. Against the said order, Opposite Parties 5 & 6 carried an appeal to the High Court of Jharkhand at Ranchi which by its Order Dated 27.2.1998 allowed the appeal, set aside the order of the Learned Subordinate Judge, Chainbasa & remanded the matter for fresh disposal. On remand, the Learned Subordinate Judge again set aside the award on 12.7.2005. The said order is under challenge before the High Court of Jharkhand & pending for disposal. The Petitioner claimed that he continues to be the partner of Arjun Lodha Partnership Firm & it cannot be construed that he is a retired partner. Opposite Parties 5 & 6 in order to deprive the Petitioner of his legal right, forcibly did not allow him to participate in the mining business & exercise his lease hold right. Therefore, he made a representation on 23.11.2006 to the Deputy Director of Mines, Joda, Keonjhar for consideration of his grievance. Opposite Parties 5 & 6 in order to deprive the Petitioner of his legal right, forcibly did not allow him to participate in the mining business & exercise his lease hold right. Therefore, he made a representation on 23.11.2006 to the Deputy Director of Mines, Joda, Keonjhar for consideration of his grievance. After hearing both the sides, the Deputy Director of Mines on 3.2.2007 directed Opposite Parties 5 & 6 to stop mining operation. Challenging the said order, Opposite Parties 5 & 6 filed W.P.(C) No. 1542 of 2007 before this Court & the said Writ Petition was disposed of on 12.2.2007 directing Opposite Party No. 3 to consider effectively the controversy between the parties afresh. The Deputy Director of Mines after hearing the parties on 6.3 2007 came to a conclusion that Opposite Parties 5 & 6 were recognized by the Government to be operating the mining lease & allowed them to continue with the mining operation. Challenging the said order, the Petitioner filed W.P.(C) No. 3411 of 2007 which was disposed of on 25.7.2007 with the observation that the Petitioner may file a civil suit as the disputes involved were questions of fact & required to be proved. Thereafter, the Petitioner filed Civil Suit No. 550 of 2007 along with Interim Application No. 442 of 2007 before the leaned Civil Judge (Senior Division), Bhubaneswar. Opposite Parties 5 & 6 appeared in the suit & filed their objection. After hearing both the sides, the Learned Civil Judge (Senior Division), Bhubaneswar by his Order Dated 12.10.2007 rejected Interim Application No. 442 of 2007 holding that prima facie case was in favour of Opposite Parties 5 & 6 & they would suffer irreparable loss & injury if they would be injuncted as they were operating the mining lease in respect of Schedule A & B lands since 6.8.1996 till then; that balance of convenience was also in their favour as they were in possession of the mines & that the loss sustained by the Petitioner could be compensated as per the result of the suit. Being aggrieved by the said order, the Petitioner filed FAO No. 104 of 2007 before the Learned District Judge, Khurda who on 11.7.2008 confirmed the Order Dated 12.10.2007 passed by the Learned Civil Judge (Senior Division), Bhubaneswar. Challenging the said order of the Learned District Judge, the present Writ Petition has been filed. 3. Being aggrieved by the said order, the Petitioner filed FAO No. 104 of 2007 before the Learned District Judge, Khurda who on 11.7.2008 confirmed the Order Dated 12.10.2007 passed by the Learned Civil Judge (Senior Division), Bhubaneswar. Challenging the said order of the Learned District Judge, the present Writ Petition has been filed. 3. The Learned Counsel appearing for the Petitioner submitted that as the award of the Arbitrator was set aside & no finality has been reached, the Petitioner is deemed to be a partner of the reconstituted partnership firm & as such, he is entitled to operate the mining business & have a share in the profit received from the said mining operation. Therefore, Opposite Parties 5 & 6 need to be restrained from continuing with the mining operation in question. 4. Learned Counsel appearing for Opposite Parties 5 & 6 submitted that they are in possession of the mines, continuing with the partnership business & operating the mines. The Government of Orissa leased out the mines in their favour. Accordingly, the prima facie case is in their favour & the balance of convenience is also in their favour as they are in possession of the mines & operating the same since long. If they are restrained from operating the mines, they will sustain irreparable loss & injury. The Petitioner at no point of time was in possession of the mines or recognized by any authority. Therefore, the Learned Civil Judge (Senior Division), Bhubaneswar was right in rejecting the application of the Petitioner for injunction which has been confirmed by the Learned District Judge, Khurda. 5. This Court, in exercise of the power under Article 227 of the Constitution of India, has to examine whether there is any error apparent on the face of the record or the Courts below have passed the order without jurisdiction or without materials on record. From the submissions of the Learned Counsel for the parties & on perusal of the materials on record, it appears that the Trial Court while passing the order of injunction considered the three ingredients, i.e., prima facie case, balance of convenience & irreparable injury & the Appellate Court confirmed the said order of the Trial Court. From the submissions of the Learned Counsel for the parties & on perusal of the materials on record, it appears that the Trial Court while passing the order of injunction considered the three ingredients, i.e., prima facie case, balance of convenience & irreparable injury & the Appellate Court confirmed the said order of the Trial Court. "Prima facie case" means, the party has to show that in all probability he would succeed in the suit & he has a fair question to raise as to the existence of right he claims & that it is necessary in the interest of justice to preserve the said right till disposal of the suit. The Court further-has to satisfy itself that non-interference by the Court would result in "irreparable injury" to the party seeking relief & that there is no other remedy available to the party except one to grant injunction & he needs protection from the consequences of apprehended injury of dispossession. "Irreparable injury", however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material, namely, one that cannot be adequately compensated by way of damage. The third condition is that "the balance of convenience" must be in favour of granting injunction. The Court has to exercise sound judicial discretion to find out the injury which is likely to be caused to the parties, if the injunction is granted or refused. In the present case, since the Trial Court has taken into consideration the object of the interlocutory injunction order to protect the interest of the parties, & the Appellate Court has confirmed the said order, there is no arbitrariness or illegality in the impugned orders passed by the Courts below. 6. Ordinarily an order need not be interfered with if it has been passed in exercise of judicial discretion by the Trial Court & confirmed by the Appellate Court unless the parties raise the question of jurisdiction. Here, the Petitioner has not raised the question of jurisdiction. As regards finding of fact of the lower Court, the High Court should not quash the order of subordinate Court merely, on the ground that its finding of fact was erroneous in exercise of the jurisdiction under Article 227 of the Constitution of India. Here, the Petitioner has not raised the question of jurisdiction. As regards finding of fact of the lower Court, the High Court should not quash the order of subordinate Court merely, on the ground that its finding of fact was erroneous in exercise of the jurisdiction under Article 227 of the Constitution of India. Since the Trial Court, after taking into consideration the materials on records & the principle governing the field, has granted interim injunction & the said order has been confirmed by the Appellate Court, this Court is not inclined to interfere with the same. 7. Accordingly, the Writ Petition is dismissed. Final Result : Dismissed