High Court · 2012

By this common order, the review petition No.37/2011, which has arisen out of th e order, dated 25.01.2010, passed in CRP No.25/2010, as well as FAO No.10/2011 a nd CRP No.170/2011, which have arisen out of the order, dated 09.05.2011, passed in Misc. Case No.63/2009, are being disposed of upon hearing Mr. S.N. Sharma, l earned Senior counsel, for the review petitioner, who is respondent-opposite par ty in FAO No.10/2011 and CRP No.170/2011, and Mr. M. Nath, learned counsel, for the appellant-petitioner, in FAO No.10/2011 and CRP No.170/2011, who is opposite party in review petition No.37/2011 aforementioned.

2. With the help of this review petition, the applicant is, in esse nce, seeking clarification of the directions, which were passed by this Court, b y order, dated 25.01.2010, in CRP No.25/2010, so that full and effective justice become possible. In order, therefore, to correctly appreciate the ambit of the directions, which had been given by order, dated 25.01.2010, aforementioned, fol lowing material facts, as discernible from the order, dated 25.01.2010, may be t aken note of: (i). By the revision, which has given rise to CRP No.25/2010, the plaintiff N o.2, in Title Suit No.26/2005, had put to challenge the order, dated 30.11.2009, passed in Misc. Case No.63/2009, whereby the learned Civil Judge, Dibrugarh, di sposed of an application, made under Order XXXIX Rule 2A read with Section 151 o f the CPC, directing the District Magistrate, Dibrugarh, to restore possession o f Asitpur Tea Estate, as on 18.04.2009, by removing the violator, representative , men, agent, worker, etc., with immediate effect. (ii). In view of the fact that the order, dated 30.11.2009, aforementioned had been passed without hearing all the parties concerned including all the plainti ffs, the order, dated 30.11.2009, was set aside by this Court by its order, date d 25.01.2010, aforementioned, on the ground that the order, dated 30.11.2009, su ffers ex facie from breach of the principles of natural justice. While setting a side the order, dated 30.11.2009, this Court further directed the learned trial Court to serve notice on all the parties concerned and, upon giving effective op portunity of hearing, pass appropriate order and until the time Misc. Case No.63 /2009 aforementioned was disposed of, as directed hereinbefore, action of the pa rties to the suit shall be governed by order, dated 18.04.2009, which was passed in Misc. Case No.16/2005. (iii) Apart from setting aside the order, dated 30.11.2009, directing that the parties shall be governed by order, dated 18.04.2009, passed in Misc. Case No.1 6/2005, whereby the parties were directed to maintain status quo, this Court, by its order, dated 25.01.2010, passed in Civil Revision No.25/2010, set aside the act of handing over of possession of Asitpur Tea Estate by the district adminis tration, Dibrugarh, to the defendant No.1, Atish Bagchi, as witnessed by Annexur e 4 to the revision petition.

3. Pausing here, for a moment, it may be pointed out that by virtue of the order, dated 30.11.2009, (which came to be, later on, set aside by order , dated 25.01.2010, passed, in CRP No.25/2010), the Additional Deputy Commission er, Dibrugarh, took over possession of the said Tea Estate from Radheshyam Agarw alla on 31.12.2009 and handed over the possession thereof to Atish Bagchi, i.e., appellant in FAO No.10/2011 and petitioner in CRP No.170/2011. When the High Co urt set aside the order, dated 30.11.2009, passed in CRP No.25/2010, the action, which had been taken by the district administration, on 31.12.2009, of taking o ver of possession of the said Tea Estate and handing over possession thereof to Atish Bagchi could not have survived and it was for this reason that the action of taking over of the said Tea Estate by the district administration, Dibrugarh, and its act of handing over possession thereof to the defendant No.1 was also s et aside by order, dated 25.01.2010, aforementioned. Consequently, it was the du ty of the district administration, Dibrugarh, to take over possession of the sai d Tea Estate from Atish Bagchi and hand over the possession of the said Tea Esta te to Radheshyam Agarwalla. This was, however, not done. As the district administration had not taken necessary action, w 4. hich it ought to have taken pursuant to the fact that its own action of taking o ver of possession of the said Tea Estate from Radheshyam Agarwalla and handing o ver possession of the said Tea Estate to the defendant No.1, namely, Atish Bagch i, had been set aside, the present review petitioner filed a petition, in Misc. Case No.63/2009, under Section 144 of the CPC read with Section 151 thereof, see king direction for restoration of possession of the said Tea Estate from the dis trict administration, whereupon the learned trial Court passed an order, on 09.0 5.2011, directing the Deputy Commissioner, Dibrugarh, to take necessary steps in tune with the directions of the High Court.

5. Though, upon passing of the order, dated 09.05.2011, aforementio ned, the petitioner claims to have approached the Deputy Commissioner, Dibrugarh , seeking restoration of possession of the said Tea Estate, the Deputy Commissio ner, Dibrugarh, declined. 6. The Deputy Commissioner, Dibrugarh, has, thus, repeatedly not ca rried out the directions given by this Court and also by the learned trial Court . On the other hand, aggrieved by the order, dated 09.05.2011, aforementioned, F AO No.10/2011 was filed; but as the said order, dated 09.05.2011, was an order p assed by virtue of the provisions of Section 144 read with Section 151 CPC, the revision petition, which has given rise to CRP No.170/2011, has also been filed by the defendant No.1 in the said suit, namely, Atish Bagchi.

7. The order, dated 09.05.2011, as is evident from the above discus sion, clearly contains a direction, which was consequential in nature to the dir ections, which had been passed by order, dated 25.01.2010, in CRP No.25/2010, by this Court.

8. The order, dated 09.05.2011, therefore, does not suffer from any infirmity, legal or factual, and cannot be interfered with. At the same time, t his Court had also directed by order, dated 25.01.2010, that the parties shall b e governed by the directions, which had been given by the learned trial Court, o n 18.02.2009, to the parties to maintain status quo in respect of the suit prope rty. It was, therefore, necessary, in the facts and attending circumstances of t he present case, for the learned trial Court to ensure that the possession of th e said Tea Estate, which had changed hands since 18.04.2009, is not allowed to s urvive and the status quo ante, as existed on 18.04.2009, be restored. It is, no doubt, true, as pointed out by Mr. Nath, learned couns 9. el for the appellant-revision petitioner, that the learned trial Court is yet to determine who was in possession of the said Tea Estate on 18.04.2009, the fact remains that since the said Tea Estate had been handed over to the defendant No. 1, namely, Atish Bagchi, by virtue of the order, dated 30.11.2009, but the order , dated 30.11.2009, was already set aside by the order, dated 25.01.2010, passed in CRP No.25/2010, the learned trial Court had the duty to ensure that the acti on, which had been taken by the district administration, Dibrugarh, pursuant to its order, dated 30.11.2009, (which already stood set aside) be set at naught, p articularly, when this Court had also, in its order, dated 25.01.2010, set aside the act of handing over of possession of the said Tea Estate by the district ad ministration, Dibrugarh, to the defendant No.1, namely, Atish Bagchi. The impugn ed order, dated 09.05.2011, aforementioned does not, therefore, suffer from any infirmity, factual or legal.

10. Because of what have been discussed and pointed out above, this Court do es not find any merit in either FAO No.10/2011 or CRP No.170/2011. The order, da ted 09.05.2011, is, therefore, not interfered with and the district administrati on, Dibrugarh, is hereby directed to hand over, forthwith, the possession of the said Tea Estate to Radheshyam Agarwalla. The learned trial Court shall, if nece ssary, take such further action(s) as may be deemed fit for carrying into comple te effect the directions so passed. At the same time, the learned trial Court sh all dispose of the application, which has given rise to Misc. Case No.63/2009, b y making such order(s) as may be deemed necessary.

11. Though, in the facts and attending circumstances of the present case, co st ought to have been imposed on the appellant-revision petitioner, Atish Bagchi , this Court refrains from doing so. The learned trial Court shall take up, on 0 2.03.2011, Misc. Case No.63/2009, for necessary order and shall dispose of the s ame as expeditiously as possible and, preferably, within a period of six weeks w ith effect from 02.03.2012.

12. lso the Deputy Commissioner, Dibrugarh. Send forthwith a copy of this order to the Civil Judge, Dibrugarh, and a

13. eal and also the revision petition shall stand disposed of. With the above observations and directions, the review petition, the app