ARUN KUMAR MISHRA & Ors. v. BABU CHAND SINGH

IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.292 of 2006 ARUN KUMAR MISHRA & ORS Versus BABU CHAND SINGH -----------

29.4.2009 Perused the report at Flag „B‟, submitted by the District Judge, Rohtas. Reference may be made to the order of this Court

26.6.2008 relevant portion whereof reads as follows : - “…………After this part of the order has been dictated, Counsel for the petitioner submits that despite an order dated 12.9.2006 passed by this Court in the present case staying the further proceedings of the Execution Case No. 8/2005, the Court below had proceeded to effect the delivery of possession which according to him was made on 9.10.2006. It has further been stated that as a matter of fact, the Counsel for the petitioner in the Court below had produced the certified copy of the stay order on 7.10.2006 itself but even then the Court below did not ensure that the stay order of this Court was complied and the delivery of possession despite of a stay order of this Court dated 12.9.2006 was made on 9.10.2006. fact, seriously contradicting On the other hand, the Counsel for the opposite submissions of petitioners has stated that as a matter of this Court dated the order of 12.9.2006 staying the executing proceedings was never produced or conveyed to the executing court before effecting delivery of possession.

He has also submitted this Court dated 12.9.2006 was filed in the Court below on 7.10.2006 but the Court below found it appropriate to proceed in the matter of the delivery of possession because the copy of the stay order filed by the petitioner staying the proceedings by an order of this Court dated 12.9.2006 was not handed over to the counsel for the opposite party in the Court below. the order of It is indeed a very serious matter and requites to be enquired into by looking into the records of Court below as also by recording evidence of the parties and/or their Counsel. Accordingly, the District Judge, Rohtas is directed to hold a personal enquiry and submit an exhaustive and a clear report to this 2 Court as to whether it is correct that despite communication of the stay order passed by this Court on 12.9.2006 in the present case which was also conveyed to the Court below by memo no.

6261 dated 19.9.2006 and its certified copy was also filed by the petitioners on 7.10.2006, the concerned Court of 1st Munsiff, Sasaram had got the delivery of possession effected on 9.10.2006? The District Judge, Rohtas after completing his enquiry must submit a clear report in this regard within a period of one month order…..…..” the date of receipt of Though two reports have been submitted by the District Judge, Rohtas is hardly any satisfactory explanation as with regard to violation of the interim order of this Court dated 12.9.2006 and 19.11.2008. It does not augur well in the administration of Justice that the subordinate court despite being informed of an injunction of the higher court would not take immediate corrective action even if it had passed an order earlier which was forbidden in the subsequent order of the superior court. The court below on 7.10.2006 on being informed through a Lawyer‟s certificate as with regard to stay of further proceeding of Execution Case by this Court on 12.9.2006 was under an obligation to at least pass an order for maintaining status-quo instead of getting delivery of possession effected on

8.10.2006. The Lawyer‟s certificate infact should not have been treated in such a casual and/or cavalier manner by making it acceptable only on filing of an affidavit. Normally no lawyer would issue a false certificate with regard to a court proceeding, 3 and happen it be so, action can always be taken against such lawyer for issuing a false certificate. The possibility of a lawyer‟s certificate being false can never be the reason for its being rejected specially when the same seeks to convey a stay order of a superior court. The certified copy in each and every case is not and infact cannot be immediately issued on the date of passing of the order by this Court and therefore when such a certificate is issued by a lawyer, who is a Counsel before the superior court, his such statement or version by way of a certificate can not be rejected outright. This court therefore must hold that the action on the part of the court below regarding doubting the veracity of Lawyer‟s certificate on 7.10.2006 and allowing the delivery of possession effected on 8.10.2006 was wholly improper. It has to be noted that on 10.10.2006 when certified copy of the order was also filed the court below had not passed an order for implementing the stay order dated 12.9.2006 and it is only when the copy of the same order of this court was received by the court below on 13.11.2006 through “proper channel” that its cognizance was taken. This would mean that unless each and every order is communicated by this court to the court below, the certified copies produced by the party himself or a Counsel would not be taken into consideration. The manner in which the court below has conducted the proceeding in effecting the delivery of possession, leaves nothing for 4 speculation that the said stay order passed by this court on

12.9.2006 staying the further proceeding of Execution case No.8 of 2005 was deliberately flouted by the court of Munsif 1st, Sasaram. In that view of the matter, this Court would direct the Registrar General of this Court to place the whole matter before the Standing Committee for considering the desirability of initiating suitable disciplinary proceedings against concerned court of Munsif, 1st, Sasaram which had got the decree executed on 8.10.2006 in Execution Case no. 8 of 2005 despite a stay order passed by this court on 12.9.2006 in Civil Revision No.292 of 2006. With the aforesaid observations and directions the enquiry undertaken by this court in the order dated 26.6.2008 stands concluded and closed. Narendra/ ( Mihir Kumar Jha, J. )