Siyaram Lahre (Satnami) v. Ganesh Sachdev

Siyaram Lahre (Satnami), Aged About 58 Years, S/o Shri Jagturam, Lakhan Lahre (Satnami), Aged About 56 Years, S/o Shri Jagturam, The petitioner No.1 to 4 are residents of Salhewar Para, Current Address :- Mahant Ghasidas Ward, Dhamtari, Tahsil & District Dhamtari (C.G.). Shivbati, aged about 45 years, D/o Jagturam W/o Shri Milaram Banjare, R/o Village Dokla, Tahsil Gurur, District Balod Chhattisgarh. ---- Petitioners Versus

1. Ganesh Sachdev, aged about 55 years, S/o Sudamamal Sachdev, R/o Aamapara Ward, Dhamtari, District Dhamtari Chhattisgarh.

4. Durpatbai, Aged About 40 Years, W/o Shri Ashok Goyal, R/o Village Sikosha, Tahsil and District Balod Chhattisgarh. The Tahsildar Nazul Inquiry, Collector’s Office, Dhamtari Chhattisgarh. State of Chhattisgarh, Through the Collector, Collector’s Office, Dhamtari, District Dhamtari Chhattisgarh. ---- Respondents ------------------------------------------------------------------------------------- For Petitioners : Mr. R. S. Patel, Advocate For Respondents 3 & 4 : Mr. G.P. Kurre, P.L. on advance copy ------------------------------------------------------------------------------------- 2 (Proceedings through Video Conferencing) Hon'ble Shri Justice Parth Prateem Sahu Order on Board

08.02.2022

1. As in this petition, petitioners have only sought relief of direction to trial Court to pass orders on applications, which was heard but orders are not passed even after hearing arguments. This petition is disposed off without issuing notice to the respondents.

2. Grievance of the petitioners raised in this petition is only with respect to not passing of orders by trial Court on application filed under Order 39 Rule 1 and 2 and Order 26 Rule 9 of Code of Civil Procedure, 1908 (in short ‘CPC’), even after hearing arguments of both the parties on aforementioned applications on 10.12.2021 and fixed the case for orders on

14.12.2021. After 14.12.2021, case was fixed before trial Court on number of dates i.e. 20.12.2021, 04.01.2022,

10.01.2022, 20.01.2022, 22.01.2022 and 24.01.2022.

3. Mr. R.S. Patel, learned counsel for the petitioners would submit that petitioners are in possession of disputed property, (an old residential house) since 1937. Respondent No.1 is making an attempt to demolish the residential house and evict the petitioners. Revenue Inspector by written memo asked to handover vacant possession of disputed property. He submits that after receiving written letter from Revenue Inspector, petitioners who are law abiding persons, 3 immediately rushed to trial Court by way of filing civil suit along with an application under Order 39 Rule 1 and 2 read with Section 151 of CPC. Petitioners have also filed an application under Order 26 Rule 9 of CPC. Learned trial Court heard the respective counsels appearing for the parties in civil suit on an application under Order 39 Rule 1 and 2 read with Section 151 of CPC, application under Order 26 Rule 9 of CPC and Order 6 Rule 17 of CPC, and the case was fixed for orders on 10.12.2021. Learned trial Court on the said date adjourned the case for orders on aforementioned applications assigning reason that Court was engaged in recording evidence in another case for

14.12.2021. On the said date, trial Court considered the application only under Order 6 Rule 17 of CPC, but has not passed any order on other applications. Since 10.12.2021, case was fixed for passing orders on application under Order 39 Rule 1 and 2 and under Order 26 Rule 9 of CPC, but till date, no orders on aforementioned applications are passed by trial Court. In subsequent order-sheet recorded by trial Court, it is not mentioned that for orders on applications under Order 39 Rule 1 and 2 and Order 26 Rule 9 of CPC, of which, arguments have already been heard. Petitioners who are plaintiffs before trial Court are under threat and apprehension that at any moment of time, they may be evicted from suit premises, hence, a direction be issued to trial Court to pass orders on application under Order 39 Rule 4

5. 1 and 2 and Order 26 Rule 9 of CPC at the earliest. Referring to the proceedings of trial Court dated 24.01.2022, he submits that application filed by the petitioners under Section 151 of CPC seeking stay of order passed by Additional Commissioner, Raipur is rejected observing that demarcation is disputed, but even after hearing arguments on an application under Order 26 Rule 9 of CPC prior to

10.12.2021, fixing it for orders, till date orders have not be passed. I have heard learned counsel for petitioners. Perusal of order-sheet would show that proceedings filed by petitioners before trial Court is pending consideration before the Court of Additional District Judge (F.T.C.), Dhamtari (C.G.) in Civil Suit No.5-A of 2021. Annexure P/8, which is copy of order-sheet dated 10.12.2021 would reflect that on the said date, case was fixed for orders on application under Order 39 Rule 1 and 2 read with Section 151 of CPC and Order 26 Rule 9 of CPC (wrongly mentioned as Order 36). On the said date, case was adjourned to 14.12.2021 for orders, but thereafter, there is no proceeding recorded for fixing of case for orders on application under Order 39 Rule 1 and 2 read with Section 151 and Order 26 Rule 9 of CPC. Petitioners have placed on record order-sheets from

10.12.2021 till 24.01.2021 and now, case is now fixed for

15.02.2022. 5

6. Once the Court has heard counsel for respective parties on application filed by any party to suit, as in case at hand i.e. application under Order 39 Rule 1 and 2 and Order 26 Rule 9 of CPC filed by plaintiff, then trial Court is duty bound to pass orders at the earliest when petitioners/plaintiffs in application under Order 39 Rule 1 and 2 of CPC made specific pleading in paragraph-17 that Revenue Inspector has issued memo for handing over vacant possession to the respondent. It is not that order is to pass in favour of petitioners only, but once application is filed, heard argument then it is to be decided at the earliest in accordance with law so that if petitioners/plaintiffs is aggrieved further, they may approach the higher Court for redressal of their grievance within time.

7. From the proceedings, it is apparent that trial Court has not passed order on the application, which is heard in the month of December 2021 i.e. 06.12.2021, even after fixing the date of hearing for 7 dates till 24.01.2022. The trial Court is directed to pass orders on application under Order 39 Rule 1 & 2 and Order 26 Rule 9 of CPC at the earliest in pursuance to the proceeding recorded in the order sheet dated

10.12.2021.

8. With the aforementioned direction/observation, writ petition stands disposed of. (Parth Prateem Sahu) Judge Yogesh Sd/-