Misc. Appeal No. 117 of 2005 · Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Revision No.46 of 2011 ====================================================== 1. Rameshwar Tiwari son of late Chandrika Tiwari. 2. Smt. Usha Tiwari wife of Rameshwar Tiwari. Both are residents of Vill. Chirand, P.S. Doriganj, Distt. Saran (Chapra) ……Defendants.... Appellants .... Petitioners Versus Shambhunath Tiwari, son of late Chandrika Tiwari, residents of Vill. Chirand, P.S. Chirand, Distt. Saran (Chapra), at present-Divisional Cash and Pay Officer, Eastern Railway, Hawrah (W.B.). …..Plaintiff....Respondent .... Opp. Party ====================================================== Appearance : For the Petitioner/s : Mr. Akhileshwar Kumar Shrivastav, Advocate For the Opp. Party/s : Mr. Shailendra Kumar Dwivedi, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL ORDER 18 31-10-2013 Heard learned counsel for the petitioners and learned counsel for the opposite party. The present application under Section 115 of the Code of Civil Procedure, 1908 (hereinafter referred to as the ‘Code’) seeks quashing of the order dated 21.12.2010 passed in Misc. Appeal No. 117 of 2005 by the Additional District Judge 3rd, Saran at Chapra by which the order of the 6th Sub Judge, Saran at Chapra in Misc. Case No. 15 of 2000 dated 18.07.2005 has been
Legal Reasoning
affirmed. The petitioners are plaintiffs in Title Suit No. 216 of Patna High Court C.R. No.46 of 2011 (18) dt.31-10-2013 2/6 1999 which was for partition of the schedule properties. During the pendency of the suit, the petitioners-plaintiffs filed an application praying for injunction against the defendants and the same, after hearing, was allowed on 01.12.1999 with a direction to maintain status quo with the condition that no party could sell the land without prior permission of the Court. It appears that the petitioners sold part of the land, on which the said status quo order was operative, to a stranger on 25.07.2000. This gave cause of action to the defendant (respondent herein) to file a petition under Order XXXIX Rule 2-A of the Code against the petitioners for having violated the order of status quo. After hearing the parties, the 6th Sub Judge, Saran at Chapra by order dated 18.07.2005 in Misc. Case No. 15 of 2000 ordered for detention in civil prison of the petitioners for 15 days for violating the order of status quo. The same was challenged by the petitioners in Misc. Appeal No. 117 of 2005 in which, by the impugned order dated 21.12.2010 passed by the Additional District Judge 3rd, Saran at Chapra, the order of the Sub Judge was upheld and the appeal was dismissed.
Legal Reasoning
Learned counsel for the petitioners submits that though there had been violation of the order of status quo but the same was more out of a mistake and only part of the land which was sold was involved. It is further submitted that on 31.01.2011 by a Patna High Court C.R. No.46 of 2011 (18) dt.31-10-2013 3/6 registered deed of sale, five decimals of the suit land was returned by the vendee to the petitioners and thus whatever violation was there, stood rectified. It is submitted that this Court may take a lenient view in the matter since the petitioner no. 1 is advanced in age and petitioner no. 2 is a lady. Learned counsel for the opposite party submits that the order impugned is well considered and justified in the facts and circumstances of the case. It is submitted that the injunction had been granted on the basis of an application filed by the petitioners in the year 1999 and soon thereafter it was the petitioners themselves who had violated the order, in the year 2000. It is further submitted that the petitioners’ intent to deliberately and wilfully violate and disobey the order of status quo is apparent from the fact that no corrective measures were taken by them even when the matter was brought before the Court in the year 2000 itself. Not only this, they had also contested the order against them in the year 2005 in appeal and only losing at both stages in December, 2010, the so called sale deed in favour of the petitioners by the original vendee and that too with regard to only five decimals had been executed in January, 2011. Learned counsel submits that even this is a total eyewash inasmuch as 16 decimals of land was the subject matter of the order of status quo Patna High Court C.R. No.46 of 2011 (18) dt.31-10-2013 4/6 which, according to him, would be clear from the list of the land which had been mentioned by the petitioners in their application filed before the Court below in which, with regard to plot no. 260, an area of 16 decimals had been shown. Learned counsel submits that though lands sold was much beyond 16 decimals, but with regard to plot no. 260 the entire 16 decimals were sold which would be clear from perusal of the sale deed itself. Learned counsel submits that in the boundary shown of the land sold, on no side, the petitioners are shown to be at the boundary and if only part of 16 decimals of plot no. 260 were sold, then their name ought to have found place at one boundary of the sale deed, which is not the case. It is further submitted that even with regard to sale deed relating to five decimals of plot no. 260 in favour of the petitioners is concerned, the same also goes to show that in none of the boundaries, the petitioners are shown to be the land owner, which proves the allegation that 11 decimals of the land in plot no. 260 which was covered by the order of status quo is still retained by the vendee of the petitioners. Learned counsel has submitted that in matters where the parties are held to have violated the order passed by the Court, especially an injunction order, the superior Courts should not take a lenient view and the rule of law requires that an order passed by the lowest authority of Patna High Court C.R. No.46 of 2011 (18) dt.31-10-2013 5/6 the law is respected and thus the order impugned is quite reasonable and in fact mild and lenient. For such proposition, he has relied upon an order of this Court in the case of Mahendra Pd. Singh v. Maheshwar Singh reported in 2004 (2) PLJR 747. Upon hearing learned counsels for the parties and considering the facts and circumstances of the case, this Court finds that the petitioners have deliberately and wilfully disobeyed and violated the order of status quo and injunction passed by the Sub Judge dated 01.12.1999 and thus the order holding them guilty and awarding punishment is correct. With regard to leniency being shown, this Court does not find that in the facts and circumstances of the case, the order of sentence is excessive. The petitioners had themselves filed a petition seeking an order of status quo and injunction, which was allowed, and after violating the same they kept contesting the matter and never came with clean hands before the Courts. If at all their plea is accepted that there was some bonafide and genuine mistake with regard to the description of the land in the sale deed, it was obligatory on them to rectify the same by a deed of correction, which also was not done. After having lost at two stages, a deed of sale was executed by the vendee in favour of the petitioners and that too with regard to only portion of the land, as it transpires from perusal of the sale Patna High Court C.R. No.46 of 2011 (18) dt.31-10-2013 6/6 deed as well as the petition filed before the Court with regard to the land on which the order of status quo has been passed, cannot but lead to the inescapable conclusion that the intention and conduct of the petitioners was to somehow resist from undoing the wrong committed by them. Thus, they cannot be held to be entitled to any leniency. Thus, as observed earlier, the order is quite mild and according to this Court does not suffer from an infirmity or illegality warranting any interference. Having held as above, this Court, without interfering in the order holding them guilty, would only modify the sentence as far as petitioner no. 2 is concerned as she is an old lady. Accordingly, the order impugned stands modified to the extent that as far as petitioner no. 2 is concerned, she shall be liable to undergo detention in civil prison for 1 day. The petitioners are directed to appear in person before the Court below for serving the sentence of imprisonment, as directed, which shall be done latest by 21st November, 2013. The application stands disposed off in the aforementioned terms. The order be communicated to the Court below through Fax also at the cost of either party. Anjani/- (Ahsanuddin Amanullah, J.)