Advocates:
['M/S MALAY KUMAR MISHRA', '', 'A B LENKA', 'M/S S MOHANTY', 'S K DAS', 'S S MOHAPATRA', 'P K DAS', 'A K JENA', '', 'M/S AMIT PRASAD BOSE', 'D J SAHOO', 'V KAR', 'A PATTNAIK', 'S K NAYAK']

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IN THE HIGH COURT OF ORISSA AT CUTTACK

CMP No.737 of 2017

Kunja Kishore Parija and another

&.

Petitioners

Mr. Swarup Pattnaik, Advocate

on behalf of Mr. A. B. Lenka, Advocate

-versus-

Ula Parija

&.

Opp. Party

Mr. Amit Prasad Bose, Advocate

CORAM:

JUSTICE K.R. MOHAPATRA

ORDER

Order No.

15.11.2021

10.

1.

This matter is taken up through hybrid mode.

2.

Though the matter was listed for orders, on the consent

of learned counsel for the parties the CMP is taken up for final

disposal.

3.

Petitioners (Defendant/Opposite Party Nos.2 and 3 in

the suit) have filed this CMP assailing the order dated 20^th

January, 2017 (Annexure-7) passed by learned District Judge,

Kendrapara in FAO No.61 of 2016, whereby he dismissed the

appeal and confirmed the order dated 16^th May, 2016

(Annexure-6) passed by learned Civil Judge (Junior Division),

Kendrapara in IA No.513 of 2015 (arising out of CS No.323 of

2015), granting interim order of mandatory injunction directing

the Petitioners/Defendant Nos.2 and 3 to remove earth and

brick stacked and plants from the passage, so as to facilitate the

Plaintiff /Opposite Party herein have access from her dwelling

house to the village road.

4.

Mr. Pattnaik, learned counsel for the Petitioners submits

that CS No.323 of 2015 has been filed for partition and

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permanent

injunction.

Along

with

the

plaint,

the

Plaintiff/Opposite Party filed IA No.513 of 2015 in which

learned Civil Judge (Junior Division), Kendrapara by

entertaining an application under Order XXXIX Rule 3 CPC

granted an ex parte order directing the parties to maintain status

quo over the suit land. During pendency of the said IA, an

application for interim mandatory injunction was filed by the

Plaintiff-Opposite Party to direct the present Petitioners to

remove the obstruction from her passage. Taking into

consideration the rival contentions of the parties, learned trial

Court while confirming the ad interim order of status quo dealt

with the application filed for interim mandatory injunction

separately and passed the order under Annexure-6. Assailing

the said order the present Petitioners preferred FAO No. 61 of

2016 and learned District Judge, Kendrapada by order under

Annexure-7, confirmed the same.

4.1.

Relying upon the ratio decided in the case of Kishore

Kumar Khaitan and another Vs. Praveen Kumar Singh,

reported in AIR 2006 SC 1474, Mr. Pattnaik, learned counsel

for the Petitioner contended that interim mandatory order of

injunction is not the remedy to be granted easily. It is an order

granted/passed only in the exceptional circumstances, when the

Court prima facie finds that the order of status quo has been

altered by one of the parties to the litigation and interest of

justice demands that status quo ante be restored by way of

interim mandatory injunction. Neither the learned trial Court

nor the Appellate Court kept in mind the aforesaid principle

while passing the impugned orders under Annexures-6 and 7. It

is further contended that although learned Court proceeded on a

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presumption that the application was filed under Order XXXIX

Rule 4 CPC for alteration of order of status quo and

erroneously came to the conclusion that since the property in

question has not been partitioned and the Plaintiff/Opposite

Party does not have access to the village road from her house,

the Defendant Nos.2 and 3/Petitioners should clear the earth

and brick stacked as well as plants to give way to the Plaintiff.

It is his submission that order of interim mandatory injunction

cannot be granted under the facts and circumstances of this

case. As such, the impugned orders as at Annexures-6 and 7 are

not sustainable in the eyes of law.

5.

Mr. Bose, learned co