PATNI DHANJIBHAI SAYBABHAI Vs. PATNI MOHANBHAI SAYBABHAI

JUDGEMENT

(1.) RULE. Mr. Chinmay Gandhi, learned counsel for the respondent waives service of notice of Rule on behalf of the respondent.

(2.) THIS petition has been filed under Art. 227 of the Constitution of India with a prayer to issue a writ of certiorari or an appropriate writ or order, quashing and setting aside order dated 1-8-2009 rendered by the learned District Judge, patan in Misc. Civil Appeal No. 8 of 2004 whereby the appeal filed by the petitioner against the order of the learned Civil Judge (J. D.), Patan, dated 20-1-2004, in Regular Civil Suit No. 138 of 1992, has been dismissed.

(3.) BRIEFLY stated, the facts of the case are that the petitioner (original defendant in the suit) and the respondent (original plaintiff) are real brothers. The respondent filed Regular Civil Suit No. 138 of 1992 in the trial Court against the petitioner and others, for partition of the suit land, bearing Survey nos. 1479 and 1482, situated at village Aghar, Taluka and District, Patan, on the ground that he is entitled to l/9th share in the said land. Along with the plaint, the respondent filed an application for grant of temporary injunction, being Exh. 5. After hearing the respective parties, the trial Court allowed the application for temporary injunction filed by the respondent vide order dated 24-4-1992, and directed that status quo in respect of the suit land be maintained till the final decision of the suit. This order came to be confirmed after bipartite hearing, by order dated 21-10-1992. The petitioner challenged this order by filing Misc. Civil Appeal No. 194 of 1992. However, the appeal of the petitioner against the order passed upon application at Exh. 5 was rejected, and the order of the trial Court directing status quo to be maintained by the parties in respect of the suit property, was confirmed. 3. 1. During the proceedings of the suit, the petitioner has sold the suit property of Survey No. 1482 and 1479 to one Thakor Madarji Rudaji and Thakor gambhirji Rudaji by way of registered sale-deed dated 16-11-2002, for sale consideration of Rs. 1,40,500/ -. The respondent, (original plaintiff) therefore, filed an application at Exh. 162 before the trial Court under the provisions of order 39, Rule 2a of the Code of Civil Procedure, stating that the petitioner has willfully disobeyed the order of injunction passed by the trial Court by selling the suit property, therefore, necessary orders be passed. The trial Court allowed the application at Exh. 162 filed by the respondent and it was found that as the petitioner has sold off the suit property during the pendency of the order of temporary injunction granted by the same Court, he has committed a breach of the terms of the said order. The trial Court directed that the petitioner should undergo civil imprisonment for a period of three months. The petitioner preferred misc. Civil Appeal No. 8 of 2004 before the District Court, challenging the above-mentioned order. The said appeal has been dismissed and the order of the trial Court imposing three months civil imprisonment has been upheld by the lower Appellate Court, by passing the impugned order. The petitioner has further been directed to pay Rs. 2000/- as costs of the appeal to the respondent. Being aggrieved by the above-mentioned order, the petitioner has approached this Court by filing the present petition.