Miscellaneous Appeal No. 647 of 2012 · Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Appeal No.647 of 2012 ====================================================== 1. Rajiv Kumar Agrawal, S/O Late Arvind Kumar Agrawal, 2. Anjan Kumar Agrawal, minor S/O Rajiv Kumar Agrawal, under the Guardianship of his father, Rajiv Kumar Agrawal. Both are residents of Mungeriganj, Begusarai, P.O- Begusarai, Police Station- Nagar, District- Begusarai. .... Plaintiffs .... Appellant/s Versus 1. Ravindra Narayan Agrawal, S/O Late Bishundeo Narayan Agrawal. 2. Jitendra Narayan Agrawal, S/O Sri Ravindra Narayan Agrawal. 3. Abha Rani, W/O Rabindra Narayan Agrawal. 4. Meenakshi Kumari, D/O Rabindra Narayan Agrawal. All are residents of Mungeriganj, Begusarai, P.O- Begusarai, Police Station- Nagar, District- Begusarai. ……Defendant 1st Party….Respondent 1st Party. 5. Smt. Indira Rani, D/O Late Bishundeo Narayan Agrawal, and W/O Rai Abhay Krishna, resident of Anand Bagh, Patna City.
Legal Reasoning
…..Defendant 2nd Set…..Respondent 2nd Set. 6. Dr. Sanjiv Kumar, S/O Late Arvind Kumar Agrawal, resident of Mungeriganj, Begusarai, P.O- Begusarai, Police Station- Nagar, District- Begusarai. 7. Mridula Rani, D/O Late Arvind Narayan Agrawal, resident of Mungeriganj, Begusarai, P.O- Begusarai, Police Station- Nagar, District- Begusarai. .... Defendant 3rd Set .... Respondents 3rd Set. ====================================================== Appearance : For the Appellant/s : Mr. Dhruv Narain, Sr. Advocate
Legal Reasoning
For the Respondent/s : Mr.Ambuj Nayan Choubey Mr. Mrigank Mauli Mr. Sanjay Kumar Ojha Mr. Chakrapani Mr. Ashok Kumar Jha. ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER 8 13-08-2013 Heard Mr. Dhruv Narain, learned senior counsel appearing for the appellants, Mr. Ambuj Nayan Choubey, learned counsel appearing for respondent no.1, Mr. Mrigank Mauli, learned counsel appearing for respondent no.2, Mr. Sanjay Kumar Ojha, learned counsel appearing for respondent no.3, Mr. Patna High Court MA No.647 of 2012 (8) dt.13-08-2013 2 Chakrapani, learned counsel appearing for respondentno.4 and Mr. Ashok Kumar Jha, learned counsel appearing on behalf of respondent no.6. This appeal under Order 41 rule 1(r) of the Code of Civil Procedure (hereinafter referred to as ‘the Code’) is directed against the order dated 24.8.2012 passed by the learned Sub- Judge 5th, Begusarai in Title Suit No.188 of 1997, whereby the prayer for injunction made by the appellants as plaintiffs in the court below under Order 39 rules 1 and 2 of the Code, has been rejected. The parties to the dispute come from a common ancestor. The suit is for partition of the properties set out in the schedule to the plaint and was instituted as back as in the year 1997. Apprehending the disposal of the suit properties at the hands of the defendants, an application for injunction had been preferred by the plaintiffs and which was rejected by the learned Sub-Judge 1st, Begusarai vide order dated 12.11.1998. Being aggrieved the plaintiffs moved this Court in M.A. No.16 of 1999 and a Bench of this Court vide order passed on 23.2.1999 without interfering with the impugned order had dismissed the appeal. However, while doing so liberty was granted to the parties to the suit to seek permission of the trial court before entering into any Patna High Court MA No.647 of 2012 (8) dt.13-08-2013 3 transaction in relation to the suit property. The partition suit was dismissed on 10.9.1999 under Order 7 rule 11 of the Code on the ground being barred on the principles of res-judicata in view of the judgment and decree passed in Title Suit No.60 of 1966 and Title Suit No.44 of 1972 and which was questioned by the plaintiffs before this Court in F.A. No.475 of 1999. During the pendency of the said first appeal several interlocutory applications were filed by the plaintiffs alleging alienations by the defendants and which was disposed of without grant of indulgence except that the parties would take leave of the court prior to making any transaction which would be subject to the result of the suit. The first appeal filed by the plaintiffs was allowed by a judgment and decree of this Court dated 1.4.2010 placed at Annexure-7 to the appeal and the matter was remitted to the trial court for consideration and disposal afresh. The suit having been remitted for fresh disposal by the trial court, the application in question was filed by the plaintiffs seeking to restrain the defendants 1st set, i.e. respondent nos.1 to 4 herein from alienating the suit property as detailed in schedule-I to the plaint. The prayer having been rejected by the order impugned, hence this appeal. I have heard Mr. Dhruv Narain, learned senior Patna High Court MA No.647 of 2012 (8) dt.13-08-2013 4 counsel appearing for the appellants and learned counsel appearing for the respective respondents. It is the allegation of the plaintiffs that the matter having remained pending, the endeavour of the defendants is to dispose of the entire subject-matter to the prejudice of the plaintiffs. The plaintiffs even while admitting to a partition under Title Suit No.60 of 1966 followed by Title Suit Nos.43 and 44 of 1972 has filed the present suit for partition charging the earlier decree to be a collusive decree between the parties prejudicially affecting the interest of the plaintiffs. The trial court taking note of the facts governing the earlier suits and applying the principles governing grant of injunction, did not find merit in the prayer made by the plaintiffs and has rejected the same. Be that as it may, the fact remains that a similar complaint and a similar prayer seeking restraint on the respondents stood rejected by the trial court under the order dated 12.11.1998 and which was not interfered with in M.A. No.16 of 1999 filed by the plaintiffs questioning the said rejection. The suit having been remanded under the order passed in F.A. No.475 of 1999, the order dated 12.11.1998 as affirmed by this Court in M.A. No.16 of 1999 would continue to operate and would bind the parties to the suit. It is not in contest that the order dismissing Patna High Court MA No.647 of 2012 (8) dt.13-08-2013 5 the miscellaneous appeal was never questioned before a superior court by the plaintiffs. In the circumstances, this Court is not persuaded to interfere with the order impugned and this appeal is accordingly dismissed. It goes without saying that the parties would be bound by the observation of this Court as recorded in M.A. No.16 of 1999. It is the joint charge of the contesting parties that the other side is deliberately trying to delay the suit. It is noted that the suit is of the year 1997 and was remanded on 1.4.2010. A period of three years having passed it is contended by the parties that as yet even the pleadings are not complete. This Court without going into the allegations and counter allegations would direct the trial court to consider and dispose of the suit expeditiously and preferably within a period of one year from the date of receipt/production of a copy of this order without giving any undue adjournment to either of the parties. Since all the contesting parties have registered their appearance before this Court and have undertaken to co-operate in expeditious disposal of the suit, they shall be bound by their undertaking given before this Court. SKPathak/- (Jyoti Saran, J)