Back
2013 Supreme(Ori) 133
HIGH COURT OF ORISSA
S.K. MISHRA, J.
Aswini Kumar Aich, aged about 42 years & Ors. - Petitioner
Vs.
Paramananda Aich, aged about 41 years & Ors. - Opp. Parties
W.P. (C) No. 8633 of 2013
Decided on: 4.07.2013
Advocate Appeared:
Subash Chandra Nayak, J. Sahu, N.Behera, P.C. Das. & K. Mohanty for Appellant
Subash Chandra Acharya, Paramananda Jyotish & Annada Pr. Barik for Opp. Parties
The court can vacate the order granting temporary injunction if it causes undue hardship to the parties, as provided under Rule 4 of Order xxxix of the C.P.C.
Headnote:
Temporary Injunction - Construction over Suit Land - The court allowed the Defendants to complete their construction up to the roof level, with the condition that they would not claim any equity in the future and would vacate or demolish the construction at their own cost if it falls within the Plaintiff's share or if the Plaintiff's prayer for mandatory injunction is allowed. They were also prohibited from constructing any building in addition to the existing one.
Fact of the Case:
The Plaintiffs filed a suit for partition and applied for interim injunction. The Defendants argued that the suit land is homestead land and the Plaintiffs filed the interim application to harass them. The Defendants had already made construction up to the roof level on the old tiled housing area.
Finding of the Court:
The court permitted the Defendants to complete their construction up to the roof level, subject to certain conditions, considering the undue hardship it would cause to the Defendants if the order to maintain status quo over the suit land continued.
Issues: The main issue was whether the Defendants should be allowed to complete their construction on the suit land, which had already gone up to the roof level, despite the interim injunction.
Ratio Decidendi: The court held that the order granting temporary injunction can be vacated if it causes undue hardship to the parties, as provided under Rule 4 of Order xxxix of the C.P.C.
Final Decision: The Writ Petition was dismissed, and the pending Misc. Cases were also disposed of.
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. 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.
