ORDER
P.K. Tripathy, J.
1. Heard.
This Civil Revision is directed against the order dated 5th January, 2002, passed by the Ad hoc Addl. District Judge, Fast Track Court No. III, Cuttack.
3. It is not disputed at the Bar that petitioners were defendants Nos. 24 to 28 in Title Suit No. 414 of 1988 of the Court of Civil Judge (Senior Division), First Court, Cuttack, and the opp. party was the plaintiff in that suit. She filed the suit claiming for declaration of her right, title, interest and possession over the suit premises on the ground of having recorded the same as a gift at the time of her marriage, and alternatively claimed for a decree for partition. The present petitioners asserted their right, title, interest and possession over the said portion of the suit house on the plea of having purchased the same from one of the co-sharers, namely, Madan, whose heirs, as stated by learned counsel for the petitioners, figured as defendant Nos. 19 to 23. At the stage of hearing of that suit, due to non- participation, the petitioners and some other defendants including the defendant Nos. 19 to 23 were set ex parte and the suit was decreed preliminarily for partition declaring the 1A share of the plaintiff in the suit land and restraining the petitioners permanently from coming over the suit land and from interfering with the peaceful possession of the plaintiff on any portion of the suit property. To set aside that decree passed ex parte against the present petitioners, they filed an application under Order 9, Rule 13, C.P.C., and after its dismissal for default another application has been filed for restoration of that application (under Order 9, Rule 13, C.P.C). When the matter stood thus, according to the petitioners, the opposite party made construction of a compound wall and a gate and in that respect the contention of the opposite party is that because of the last super cyclone and damage thereof she made a repair and no fresh construction was made by her.
4. Because of the aforesaid act of the opp. party in making some construction, petitioners applied for injunction before the Civil Judge where their application under Section 151, C.P.C. is pending to restore the application under Order 9. Rule 13, C.P.C. Learned Civil Judge after hearing both the parties and considering the merit of their case in the suit, passed an order for maintaining the status quo by both the parties with respect to the suit land. As against that, the opp. party preferred Misc. Appeal under Order 43, Rule 1 C.P.C, and vide the impugned judgment in Misc. Appeal No. 11 of 2000 learned Addl. District Judge has passed order vacating the order of status quo inter alia on the ground that when the decree passed for permanent injunction is subsisting and operating against the petitioners, the trial Court had no jurisdiction to supersede the same. Appellate Court also took into consideration other contention of the parties and erroneous approach thereof by learned Civil Judge.
5. In course of hearing, with their anxiety to get favourable order, both the parties place the facts in detail along with the pleas in their respective pleadings. This Court does not find necessity of considering that aspect because of the limited scope of interference while in seisin of an application under Section 115, C.P.C, which is limited to examine with reference to the impugned order whether there is jurisdictional error or illegalities or material irregularities in exercising such jurisdiction by the Courts below.
6. In course of hearing, in support of his contention and resisting to the argument advanced by the opp. party, learned counsel for the petitioners argues that even if a decree is passed ex parte against petitioners, they can maintain an application under Order 39, C.P.C In that respect he relies on the case of State of M.P. and Anr. v. Brijesh Kumar Awasthi and Ors., AIR 1997 Supreme Court 2104. It be noted here that the facts and circumstances in that case are completely different. Be that as it may, even when an application for restoration is pending, the Court is not precluded from considering an application under Order 39, C.P.C. if appropriate facts and circumstances are available on record. But, as noted above, the ground on which learned Additional District Judge has vacated the order of status quo is not only legally sustainable but also does not suffer from any jurisdictional error. In the case at hand when an order of permanent injunction with respect to the self-same disputed properties is existing against the petitioners and in favour of the opp. party, it is not appropriate to injunct the opposite party, with an order to maintain status quoin as much as the disputed property is a residential premises and she is in possession of the same. Contingencies may arise for her to make repairing etc. Under such circumstances this Court is not inclined to interfere with the impugned order and finds this revision to be devoid of merit and the same is accordingly dismissed. For the sake of clarity it may be noted that if the opposite party shall make any construction over the disputed land, that shall be at her own risk and this order need not be considered, accepted or interpreted as an order allowing or authorising her to make construction or structural changes in any manner.