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2013 DIGILAW 185 (ORI)

Aswini Kumar Aich v. Paramananda Aich

2013-07-04

S.K.MISHRA

body2013
ORDER 1. Heard Learned Counsel for the Petitioners & the Learned Counsel for the Opp. Parties. 2. This Writ Petition is directed against the Order Dated 02.04.2013 passed by the Learned Civil Judge (Senior Division), Jajpur in C.S. No. 32 of 2012 allowing the Defendants to make construction over the suit land. 3. The facts of the case are not in dispute. The Plaintiffs filed a suit for partition, in which he has filed an application for interim injunction. After hearing the parties, Learned Civil Judge (Senior Division), Jajpur directed the parties to maintain status quo over the land mentioned in the suit schedule properties. At this juncture, the Defendants filed an application to the effect that the suit land is homestead land & the Plaintiff has constructed a house thereon. The Defendants have also made construction of the building, which has gone up to the roof level, but with ulterior motive the Plaintiffs have filed the interim application to harass the Defendants. If the order to maintain status quo over the suit land is continued, the construction of the house, which has gone up to the roof level on the old tiled housing area, the Defendants shall suffer irreparable loss. 4. Keeping in view the submissions made by the Learned Counsel for the parties, the Learned Civil Judge (Senior Division) has permitted the Defendants to complete their construction, which has gone up to roof level, but they will file an undertaking in the Court that they will not claim any equity in future & if the said construction falls within the share of the Plaintiff or if the prayer of the Plaintiff for mandatory injunction is allowed, they would vacate or demolish the construction at their own cost & give delivery of possession of the same to the Plaintiff. However, they would not construct any building in addition to the existing building. 5. Learned Counsel for the Petitioners submit that once an order has been passed under order xxxix Rules 1 & 2, an application for modification of the same under Section 151 of the C.P.C. is not maintainable. In this connection, he relies upon the reported case of Sambhu Prasad v. Kailash Chandra Das & others, 76 (1993) C.L.T. 517. 5. Learned Counsel for the Petitioners submit that once an order has been passed under order xxxix Rules 1 & 2, an application for modification of the same under Section 151 of the C.P.C. is not maintainable. In this connection, he relies upon the reported case of Sambhu Prasad v. Kailash Chandra Das & others, 76 (1993) C.L.T. 517. However, the Civil Court has jurisdiction to vary or set aside the order passed by it under Rule 4 of Order xxxix of the C.P.C. Thus, it is clear from the impugned proviso that whenever it will cause undue hardship to the parties, the order granting temporary injunction can be vacated. In that view of the matter, the Writ Petition is devoid of merit & the same is dismissed. Pending Misc. Cases also stand disposed of.