Ganesh Prasad Lohani v. Sri Shyam Sunder Sharma

Judgment

1. 2.

4. 5. Sri Shyam Sunder Sharma, son of Sri Nathmal Sharma. Shrimati Sharda Devi, wife of Shri Shyam Sunder Sharma. Mossamat Rama Devi, Widow of Late Ashok Sharma @ Laloo Sharma. Devki Sharma. Raju Sharma Both minor son of Shri Shyam Sunder Sharma. Minor children under the natural and legal guardian Shri Shyam Sunder Sharma. All resident of Purani Bazar, Thana Road, Jhajha, P.S. & P.O. Jhajha, District-Jamui .............. Defendants/Respondent 1st set

6. 7. 8. 9. Shrimati Kalawati Devi, widow of Late Bishwanath Sharma. Dilip Kumar Sharma Ashok Sharma. Mahesh Kumar Sharma. Sons of Late Bishwanath Sharma.

10. Munna Sharma. 11. Rinku Sharma@ Tinku Sharma. 12. Deepak Sharma.

All three minor sons of Dilip Kumar Sharma Minor sons under the natural and legal guardian of Dilip Kumar Sharma. All are resident of Jhajha Bazar, P.O.&P.S. Jhajha District-Jamui …………………………..... Defendants/Respondents 2nd set 13. Shrimati Kiran Devi, wife of Shri Ganesh Prasad Lohani, resident of Village-Babubank, P.S.&P.O. Jhajha, District-Jamui. ----------- 3.

6.5.2009 Heard counsel for the appellant. ………………………. Plaintiff No. 2/Respondent 3 rd set In this appeal the plaintiff- appellant has assailed the order of the court below dated 31st July, 2008 wherein the prayer made by the appellant for initiating a proceeding under Order 39 Rule 2A of the Code of Civil Procedure against respondent 2 no.3 has been rejected by recording a finding of fact that she (Respondent no. 3) had no knowledge of the order dated 9.3.2005 whose violation by the Respondent no. 3 was complained by the appellant. Counsel for the appellant would submit that it was absolutely beyond pale of doubt that as Rama Devi in capacity of respondent no.3 in F.A.No. 308/2003 had already filed a caveat application u/s 148A C.P.C. and her counsel had not only been served a copy of the stay petition, I.A.No. 4996/2003, whose rejoinder also was filed by her, the subsequent order of status quo passed on 9.3.2005 would be deemed to be in the personal knowledge of Rama Devi (respondent no.3) and therefore, if she had alienated the land in question by executing two sale deeds on 7.9.2007 she had clearly committed contempt of this Court and hence, was liable to be punished in terms of Order 39 Rule 2A C.P.C. The court below has gone into this aspect and has recorded that F.A.No. 305/2003 was filed initially before this Court and was subsequently transferred on account of pecuniary jurisdiction whereafter 3 the same was registered in the court of District Judge, Jamui as T.A.No. 18/2006. The court below has further examined the materials on record and the oral depositions of the appellant as also Rama Devi to come to a finding that Rama Devi had no personal knowledge of an interim order of status quo passed by this Court on 9.3.2005. In the opinion of this Court, a party in order to establish violation of a Court’s order will have to lead conclusive and clinching evidence with regard to knowledge of the order by the other party. From the order of this Court dated 9.3.2005 it does not appear that even the counsel for respondent no.3 had appeared and therefore, when that order itself was of a wholly interim in nature and was passed on hearing of an interlocutory application matter, it cannot be said that Rama Devi herself had been intimated of the order dated 9.3.2005. There may be yet another reason that Rama Devi (Respondent no. 3) may not have knowledge of continuance of the order dated 9.3.2005, inasmuch as the appeal did not continue in this Court and was given a fresh number in the court of District Judge 4 being T.A.No. 18/2006. It would be, therefore, also debatable whether the interlocutory application filed by the appellant before this Court and the aforesaid interim order passed thereon had continued. Nothing was also brought to the notice of the court below against Rama Devi for the purpose of holding her guilty of committing contempt. The further confusion created in the name of parties, respondent no.5 in the order of this Court dated

9.3.2005 and renumbered as respondent no.3 in the order dated 17.3.2005 could have been yet another reason for creating a confusion with regard to continuance of the status quo order. Added to all these when the appellant himself in his oral deposition in course of cross-examination had admitted that he did not know as to who was the lawyer of Rama Devi in the High Court and as such, could not say on which date hearing of injunction matter before the Hon’ble High Court was fixed. These admissions on the part of the appellant in oral deposition were in fact by itself sufficient to show that when the lawyer of Rama Devi was not present as is clear from the reading of the order sheet 5

9.3.2005 there would be hardly any scope for constructive knowledge of Rama Devi through her counsel. That being so, this Court would not find any flaw in the impugned order rejecting prayer of the appellant for drawing the proceeding under Order 39 Rule 2A C.P.C. which as stated above is a proceeding in which the court must be satisfied that the order passed by it was knowingly flouted. Mere flouting of an order by itself is not contempt unless it is a deliberate disobedience. This Court has noted that the appeal filed by the appellant is pending for the last three years in the district court and in fact the appeal was of the year 2003 and therefore, the interest of justice would be better served if the appeal itself is decided expeditiously so that the dispute emerging out of interim orders come to an end. In that view of the matter, the District Judge, Jamui is hereby directed to ensure that he takes up hearing of the appeal himself and disposes of within a period of three months from the day the appeal becomes ready for hearing after 6 service of notice to all the parties. At the same time issue of service of notice has not to be kept lingering and that also must be looked into with all seriousness so that the appeal disposed within aforementioned time frame. It is further made clear that the two sale deeds executed by Rama Devi would of course remain subject to the result of the appeal, being governed by doctrine of lis pendence. Subject aforementioned observation and clarification, this appeal is dismissed. (Mihir Kumar Jha,J.) Surendra/