Judgment :

K.R. Mohapatra, J. : Order dated 22.04.2014 passed by the learned Civil Judge (Senior Division), Berhampur in I.A. No. 92 of 2013 arising out C.S. No. 361 of 2013 dismissing the interlocutory application filed under Order 39 Rule 1 and 2 read with Section 151 of the C.P.C. by the plaintiff is under challenge in this appeal.

2. In this appeal, the plaintiff is the appellant and the defendants are the respondents. The appellant filed C.S. No. 361 of 2013 in the court of learned Civil Judge (Senior Division), Berhampur on 14.06.2013 for a decree of specific performance of contract executed between the appellant and respondents, or in the alternative, to pass a decree directing the defendants to pay a sum of Rs.15,73,000/-towards construction and labour charges as per the estimation of the Civil Engineer and for mental agony of the plaintiff. She further claimed Rs. 50,000/-towards litigation expenses and also prayed for a decree of permanent injunction against the respondents not to proceed with the construction work causing damage to the appellant’s building and common joint wall.

3. The case of the appellant as enumerated in gist is that one Prafulla Kumar Nanda (father-in-law of the appellant) and his brother (Prabodh Kumar Nanda) were the joint owners of a building which includes the suit plot. By virtue of a registered deed of partition bearing no. 939 dated 24.06.1967, there was a partition between two brothers and the entire building was partitioned between two brothers by constructing a common wall in between. While the matter stood thus, after the death of Prabodh Kumar Nanda in the year 2000, his legal heirs sold their share of the building to the respondent no. 1 by virtue of a registered sale deed in the year, 2003. It is alleged that on 28.7.2012, the respondents started demolition of the old structure of the building by using bulldozer which caused damage to the portion of the building fell to the share of the appellant. When the appellant protested the same, the respondent no. 2 gave a declaration in writing on 31.7.2012 that he would reimburse the damage or loss, if any, caused to the building properly. As there was damage to the common wall, the appellant repaired the same by spending a sum of Rs.4,900/-. Subsequently, the respondents reimbursed the same on 09.05.2013. Since the dissension continued between the parties with regard to demolition and damage caused to the building of the appellant, the respondent no. 2 gave a further declaration in writing on 14.06.2013 that he would reimburse the entire loss, if any, caused to the building for demolition of the old structure they had purchased and construct a new building thereon. It is further alleged that the appellant got the loss and damage caused to the building which were assessed by a competent Civil Engineer to the tune of Rs. Rs.5,73,000/-. As the respondents did not keep their promise, the appellant filed the aforesaid suit seeking a decree of specific performance of contract executed between them and a decree of permanent injunction against the respondents not to proceed with the construction work.

4. The appellant filed I.A. No. 92 of 2013 under Order 39 Rule 1 and 2 read with Section 151 of the C.P.C. for an order of temporary injunction restraining the respondents from making further construction of the building they have undertaken. The respondents contested the said petition and filed their objection pleading, inter alia, that they are absolute owners of the property situated to the north side of the suit house of the appellant and they have started construction after obtaining prior approval from the Berhampur Development Authority in the month of May, 2013. They have taken all precautionary measure to avoid any loss or damage of the suit house of the appellant. The appellant is in no way affected and there is no loss or damage to the suit house for the construction work they have undertaken. The respondents have undertaken the constru