JUDGMENT :

Dr. B.R. SARANGI, J.

Challenging the order dated 16.05.2013 passed by the learned Civil Judge (Senior Division), Athagarh in I.A. No. 31 of 2013 arising out of G.S. No. 67 of 2013, rejecting the petition filed by the plaintiff-petitioner under Order 39, Rule 3 of the Code of Civil Procedure (in short, "CPC') vide, the present petition has been filed.

2. The short fact of the case is that the plaintiff-petitioner filed a suit for permanent injunction against the defendant-opposite party claiming right, title and interest over the plot No. 171, area of Ac. 0.10 dec., Khata No. 73, Kisam-Gharabari, Mouza-Karakamal under Athagarh Tahasil. It is stated that the property having been inherited from Bhobani Swain and he being the successor of the same, has been paying rent. After the death of Bhobani, he has construed a house on the said land and has been staying therein. It is the admitted case of the plaintiff-petitioner that the defendant-opposite party is the owner of plot No. 170, where he resides in a thatched house, ,which is situated adjacent to the plot of the plaintiff-petitioner. It is stated by the plaintiff-petitioner that towards east of the plot and adjacent to the plot of the defendant-opposite party, he left a vacant portion for maintenance of his building and also used the same as the path way to his bari. On 26.3.2011 defendant-opposite party objected to the plaintiff for the first time not to come over the suit land while the plaintiff attempted to repair his house by putting a ladder etc. on the suit land. The matter went to the village panchayat and the village panchayat decided in favour of the plaintiff-petitioner and directed the defendant-opposite party not to disturb the plaintiff-petitioner's possession. Since the defendant-opposite party did not obey the direction of the village panchayat and continued with the disturbance in interfering with the possession of the plaintiff in respect of the suit land, the plaintiff-petitioner filed the suit.

3. The case of the defendant-opposite party is that he is the owner in respect of Plot No. 170, Khata No. 12 of Mouza-Karakamal under Athagarh Tahasil, which is an ancestral property and he is in possession of the same peacefully and plot No. 170 is adjacent to the plot No. 171 belonging to the plaintiff. Defendant-opposite party is constructing his residential house over plot No. 170, Khata No. 12 which is well within his boundary end as such, there is no manner of encroachment of any part of plot No. 171. In order to cause harassment, the plaintiff-petitioner has filed a suit against him and sought for an ex-parte order of injunction from the Court below.

4. The plaintiff-petitioner along with the plaint filed an application under Order 39, Rules 1 and 2 of CPC before the Civil Judge (Senior Division), Athagarh registered as I.A. No. 30 of 2013 with a prayer to restrain the defendant-opposite party from raising construction over the suit land till disposal of the suit. He also filed a petition under Order 39, Rule 3 of C.P.C. seeking ex-parte order without issuing notice to the defendant-opposite party restraining him from raising construction over the suit land. On consideration of the same, learned Civil Judge (Senior Division), Athagarh vide order dated 16.10.2013 rejected the said petition under Order 39, Rule 3 of C.P.C. against which this writ petition is filed.

5. While entertaining the writ petition, this Court by order dated 24.06.2013 in Misc. Case No. 12726 of 2013 directed the parties to maintain status quo over the suit land till the next date.

6. Mr. Manoj Kumar Mishra, learned Senior Counsel appearing for the plaintiff-petitioner stated that by rejecting the application Order 39, Rule 3 of CPC, learned Court below has committed gross error apparent on the face of record and the same has been passed without application of mind. It is further urged that proviso to Order 39, Rule 3, CPC is an exception to proviso under Order 39, Rules 1 and 2. In cas