Full Judgment
Pradip Mohanty, J.
1. The unsuccessful defendants/opposite parties before the Court below have filed this petition under Order 43, Rule 1(r) of the Code of Civil Procedure praying for setting aside the order dated 16-12-2002 passed in Misc. Case No. 369 of 2002 (arising out of Title Suit No. 278 of 2002) of the Court of Civil Judge (Senior Division), Kendrapara.
2. The brief fact of the case is that the plaintiff-petitioner filed a petition under Order 39, Rules 1 and 2 read with Section 151, C. P. C. praying for grant of temporary injunction against the appellants-opposite parties not to do further construction on the suit land as described in the plaint schedule. The respondent-plaintiff filed the suit before the Court below for partition of their ancestral property by metes and bounds.
The appellants-opposite parties filed joint rejoinder to the above noted injunction petition denying the averments made therein and further it was asserted that the disputed land fell to their share in an amicable settlement and they are in possession thereof. The appellants-opposite parties have further stated that they have constructed a pucca house up to roof level over the disputed land and that the balance of convenience is in their favour and they will be put to irreparable loss if they are injuncted from constructing the house at that stage.
3. After hearing both the sides, the learned Civil Judge (Senior Division), Kendrapara, by his order dated 16-12-2002 came to the conclusion that unless there is a complete partition by decree of a Court, no party should be allowed to raise valuable construction over the suit land and, therefore, it would be quite proper to impart Justice by maintaining status quo and accordingly passed the order of status quo.
4. It is pertinent to note that, as is revealed from the impugned order, in the injunction proceeding by order dated 9-9-2002, an ex parte order directing both the parties to maintain status quo in respect of the suit land was passed and such order remained operative till the impugned order was passed. It also transpires from the lower Court records that the plaintiff-respondent has filed petition under Order 39, Rule 2-A of the Civil Procedure Code alleging violation of interim order by the defendants/appellants. It is not in dispute that the proceeding for violation of Interim order by the appellants/defendants is pending for adjudication. In such circumstances equity does not allow grant of any relief in favour of the appellants till allegations against them are adjudicated.
5. In the above view of the matter the appellants are prima facie not entitled to any equitable relief at this stage. Therefore the appeal is found to be devoid of any merit. It is open to the appellants to approach the Court after the disposal of the proceeding under Order 39, Rule 2-A, C. P. C.
Accordingly the appeal is dismissed.