RAJEEV LOCHAN PANDEY Vs. DISTRICT JUDGE ALLAHABAD

JUDGEMENT

(1.) On an application under Order XXXIX, Rule 2A of the Code of Civil Procedure Misc. Case No. 33 of 1991, before the learned Additional Civil Judge (Senior division) Allahabad was registered. By an order dated 22.9.1997 the satd Misc. case was decided against the petitioner holding that he is guilty of violating the order of status quo passed in Original Suit No. 419 of 1989 on 4.10,1989 and, therefore, he was punished by way of Civil Imprisonment of fifteen days. Misc. Civil Appeal No. 271 of 1997 was preferred by the petitioner. The learned District Judge. Allahabad by an order dated 8th May, 1998 dismissed the said appeal and thereby affirmed the order passed by the learned Civil Judge, Senior Division. This order has been challenged in this writ petition.

(2.) Sri R. N. Singh, learned senior counsel, appearing on behalf of the petitioner contends that the said order is wholly perverse. Since it has not interpreted the scope and extent of the order of status quo and has also not taken into consideration the merit of the case, which is the relevant factor for the purposes of determining the issue. He also contends that the entire appeal court order is based on the evidence of the plaintiff which has been accepted by the appeal court only on the ground that it was not rebutted. According to him, even if evidence is not rebutted the same cannot be acted upon, in view of the decision In the case of M/s. Simplex Conceret Piles Ltd. v. S. Ahmad, 1977 AWC 644. He further contends that the order was passed ex-parte without affording any opportunity to the petitioner and refusing his application for recalling the order of hearing ex-parte, relying on the past conduct of the petitioner, which cannot be looked Into while deciding the application for recalling the order and for expeditious hearing. According to him, it Is to be decided independently on the past conduct of the petitioner, as held in the case of Qaiser Sibtain v. District Judge, Allahabad and others, 1996 ACJ 516. He contends further that the application for interim order is still pending and the same having not been decided, it was not open to the Court to proceed with the proceeding under Order XXXIX, Rule 2A of the Code, as has been held in the case of State of Jammu and Kashmir v. Mohd. Yaqoob Khan and others, 1992 (2) UPLBEC 1166. His last contention was that the allegations as made in the application does not warrant the order that has been passed in the said proceeding, apart from the fact that snapping of telephone wire or Installation of Motor pump in the water line in no way disturb the status quo since the property is in possession of the petitioner, which fact has already been admitted by the petitioner at subsequent stage, though denied at an earlier stage. He has further submitted that the learned Court below proceeded on the basis of statement of the plaintiff alone ignoring all other relevant materials placed before the Court namely the affidavits, which are also relevant factor and which should have been taken note of and thus the omission leads to perversity in the order itself.

(3.) Mrs. S. Rathi, learned counsel appearing on behalf of respondent, assisted by Miss Gauri Singh. learned counsel, on the other hand contends that both the Courts having come to a concurrent finding that there has been violation of the interim order of status quo, this Court sitting in revisional jurisdiction cannot enter into such concurrent finding of facts and, therefore, this Court should not interfere with the order Impugned. She also contends that from the material on record, the Court below was justified in coming to the conclusion. The conclusion that has been arrived at is concluded by the fact of belief and disbelief, with which this Court cannot interfere while exercising revisional Jurisdiction. She further contends that the report of the Commissioner was taken into consideration by the trial court and had also considered other materials and had come to the finding that the petitioner had violated the order of status quo. The appellate court has also relied upon the Statement and evidence of the plaintiff and had come to a finding of fact that since the same was not rebutted despite sufficient opportunity was afforded to the defendant. She also referred to the conduct of the proceeding, which according to her reveals a very negligent conduct of the case by the defendant. She has pointed out that the defendant was never diligent and never seriously conducted the case. He neither completed his cross examination of the plaintiff who examined himself as P.W. 1 nor the petitioner had made himself available for being examined. She has also pointed out that on many occasions the defendant did not care to appear in the proceeding. Even on such circumstances the cases ,were adjourned and some other dates were fixed. Thus according to her despite haying been given sufficient opportunity to contest the case, if the defendant-does not contest the same. The evidence of the plaintiff has gone unrebutted and the Court had no option but to accept the same. She points out that there were sufficient material to show that the defendant was guilty of violating status quo. She has relied on various decisions in support of her respective contention which shall be dealt with at appropriate stage.