APSARUN BEGUM Vs. SK. GULAM NABI

JUDGEMENT

(1.) The plaintiffs-petitioners have filed this writ petition assailing the order dated 17.5.2013 under Annexure-11 passed by the learned Civil Judge(Senior Division), Bhubaneswar in I.A. No.387 of 2013 arising out of C.S. No.1356 of 2012, refusing to direct the local police to render necessary assistance for implementation of the order of status quo passed by the court below under Annexure-3 in respect of the suit land. The petitioners further seek for a direction to restrain the defendants-opposite parties from making any construction over the suit land.

(2.) The epitome of the facts of the case is that the plaintiffspetitioners instituted a suit for partition claiming 1/5th share from out of the suit property described under Schedule '3A'. of the plaint under Annexure-2 alleging that the defendants-opposite parties are bent upon to raise construction over it by excluding them. The plaintiffpetitioners, being the widow of Sk.Salim Tulla and the guardian of her minor children stated that she has been residing in the house of her parents, as the opposite parties being the brothers of her deceased husband did not take care of them. In the said suit, the plaintiffpetitioners filed an application under Order 39, Rules 1 and 2, CPC read with Section 151, CPC, which was registered as I.A. No. 762 of 2012. Pursuant to the notice issued to the defendants-opposite parties, though they entered appearance, did not submit any version. Therefore, ex parte order of status quo was passed on 13.9.2012 vide Annexure-4 and the same was extended from time to time till the plaintiff-petitioners filed an application on 8.4.2013 under Order 39, Rule 2A, CPC, registered as I.A.No. 293 of 2013 under Annexure-6 alleging that on 21.3.2013 the defendants-opposite parties have started digging foundation of the construction of the building over the suit land.

(3.) At this stage, before seeking assistance of the local police, to implement the order dated 13.9.2012 under Annexure-4 to the writ petition, the plaintiffs-petitioners nos.1 and 2 approached the Additional D.C.P. under Section 144(2), Cr.P.C. stating that the defendants-opposite parties, who are the 2nd party members in the said proceeding, are determined to make construction and have arranged men and materials on 15.2.2013 for continuing with the construction over the suit land. By order dated 16.2.2013 vide Annexure-7 the Addl. DCP directed the IIC, Airfield Police Station to prevent breach of peace and copy of the petition and a copy of the order passed by the learned Civil Judge (Senior Division), Bhubaneswar were sent to the IIC, Airfield Police Station along with the order dated 16.2.2013 for compliance. It appears that vide Anenxure-8, the plaintiff-petitioner no.1 approached the IIC, Airfield Police Station alleging that the defendants-opposite parties are proceeding with the construction and when she objected to the same, she is being threatened with dire consequences. Thereafter on 4.5.2013 vide Annexure-9, the plaintiff-petitioners filed an application seeking implementation of the order of status quo through the local police under Section 151, CPC, which has been registered as I.A. No. 387 of 2013. On being noticed, the defendants-opposite parties filed their objection in Annexure-10 stating, inter alia, that the plaintiffspetitioners have taken recourse to Order 39, Rule 2-A, CPC alleging that there is disobedience of the order of status quo, which was passed ex parte and while refuting the assertions made by the plaintiffspetitioners or calling upon the petitioners to strict proof of the averments, have urged that there is no necessity to direct the local police for implementation of the status quo order.