PRAMOD KUMAR PATTASANI Vs. RAMA MURTY PATRA

JUDGEMENT

(1.) THIS revision has been filed challenging the judgment and order dated 25.4.2000 passed by the learned Additional District Judge, Khurda, dismissing the appeal and confirming the order dated 7.3.2000 passed by the learned Civil Judge (Senior Division), Khurda, allowing the application under Order 39, Rules 1 and 2 of the Code of Civil Procedure filed by the present opposite party and directing the present petitioners to remove the disputed wall raised by them over the suit plot.

(2.) THE case of the plaintiff-opposite party is that the suit plot measuring Ac. 0.050 dec. stands recorded in the name of the defendant No. 4. Defendant No. 3-Bharat Petroleum Corporation has an out-let over the disputed plot. The opposite party is a dealer of Bharat Petroleum Corporation for the said out- let for the purpose of storing, selling and distributing petrol and petroleum products from that out-let. There was a compound wall of the suit premises on its eastern extremity and to the further East of the said wall the homestead land of the present petitioners is situated. On 8.1.2000 the present petitioners with some labourers illegally demolished the eastern side compound wall of the suit premises to an extent of 167 links and by encroaching upon the suit premises to an extent of 30 links in breadth from East to West, and 167 links from North to South, have constructed a new wall covering the underground tanks constructed within the suit premises for storage of petrol and diesel. By such encroachment and erection of a fresh wall by the petitioners, the underground tanks meant for storage of petrol and diesel have been detached from pump site and approach to it was also closed from the side of the opposite party. By such conduct of the present petitioners there is serious apprehension of danger to public safety since the underground petrol and diesel tanks are required to be well guarded and taken care of and the same has been kept within the compound wall raised by the present petitioners. Since the opposite party is in possession of the pump site it is its responsibility to take care of the underground tanks containing the highly explosive substances which are likely to cause serious danger to the neighbourhood, if not properly guarded and taken care of. In the application for injunction prayer was made for issuance of mandatory injunction directing the present petitioners to remove the wall raised over the suit property and a further prayer was also made for grant of interlocutory mandatory injunction for removal of the said wall. The present petitioners in spite of notice did not appear in the court nor filed any objection.

(3.) LEARNED Counsel for petitioners submits that in the facts and circumstances of the case there was no justification for the Court below to pass an interlocutory order directing the petitioners to demolish the wall and the Court could have waited till conclusion of the suit. It is further submitted on behalf of the petitioners that the Court's discretion in granting mandatory injunction at this stage is applicable only in exceptional cases and even if a strong prima facie case is found in favour of the plaintiff, same is not a ground for issuing such an order.