SUSHILA JARMANI DASS Vs. CHAND RANI

JUDGEMENT

(1.) On 30.12.1969, petitioner along with others filed a suit for possession of land comprised in Khasra No. 1598 measuring 7 kanals 7 marlas and khasra No. 1598 Gosha measuring 19 marlas situated in village Sultanpur Lodhi. In the suit, plaintiffs alleged that Diwan Jagan Nath and Daulat Ram succeeded to the property of Diwan Ram Jass and after their death, plaintiffs 1 to 3 had inherited 3/8th share and defendants 17 and 18 inherited 1/8th share, while defendants 19 to 29 inherited 4/8th share. Plaintiffs further alleged that defendants 1 to 16 had taken forcible possession of the land and that Shiv Kumar defendant had taken possession of the part of the land without any right. In the suit, they prayed that decree for possession be passed in their favour. Suit was decreed by the trial Court on 11-11-1974. In appeal filed by some of the defendants, judgment and decree of the trial Court was set aside and in consequence thereof, the suit filed by the plaintiffs was dismissed. The plaintiffs filed second appeal, namely, R.S.A. No. 224 of 1980 which was admitted on 1-8-1980. In February, 1983, Civil Misc No. 426-C of 1983 in R.S.A. No. 224 of 1980 was filed. That application was under Order 39 Rules 1 and 2 read with Section 151, Civil Procedure Code, praying that Shiv Kumar, defendant on the suit (respondent in R.S.A.) be restrained from alienating any part of the suit property. Vide order dated 28-2-1983, the learned Single Judge of this court directed the said respondent not to alienate the suit property in any manner whatsoever without obtaining permission of this Court. Shiv Kumar against whom injunction had been sought, died on 25-10-1989. In 1990, Chand Rani widow of Shiv Kumar filed an application to come on record as legal representative of Shiv Kumar. It is the admitted case of the parties that she was brought on record as legal representative. It is also the common case of the parties that during the year 1992-93, Chand Rani sold some portion of the property which formed part of the suit land. In this contempt petition filed against the respondents including Chand Rani, it has been stated that she being successor-in-interest of Shiv Kumar and also being his widow and the legal representative, was bound by order dated 28-2-1983 and by alienating the suit property she has wilfully and deliberately disobeyed the said order. Accordingly, prayer herein is to proceed against her. Prayer has also been made that Rakesh Kumar son of Shiv Kumar be also proceeded against because he was also a vendor with his mother in executing the sale-deed. Reply on behalf of Chand Rani and Rakesh Kumar has been filed. Rakesh Kumar in his reply has stated that there was no order of injunction against him, inasmuch as he was not brought on record as legal representative. It has also been stated that he has been staying separately from his parents. He has further stated in his affidavit dated 15-9-1994 that he had not been living with his father and was not aware of the order passed by this Court. Admittedly, Rakesh Kumar was one of the defendants in the suit and he was impleaded as respondent No. 3 in the Regular Second Appeal. In the Civil Misc. Application No. 426-C of 1983 in which order dated 28-2-1983 (violation of which has been alleged in this petition) was passed, the only prayer made by the petitioner was to restrain Shiv Kumar from alienating the suit property. No prayer had been made to direct Rakesh Kumar not to sell the property. Therefore, the order passed in the Civil Misc. application is not binding on Rakesh Kumar. It is also not disputed before me that Rakesh Kumar was not brought on record as legal heir of Shiv Kumar and therefore,, the order passed against Rakesh Kumar is also not binding qua him. As regards the sale made by Chand Rani, she in her affidavit dated 15-9-1994 stated that she being an old and uneducated lady had no knowledge of the pending litigation, much less of any stay order passed restraining her husband from selling the property in dispute. She has further stated that her husband never informed her of any stay order passed against him by this Court. She thus, has stated that she had no knowledge of order dated 28-2-1983 and therefore, has not committed willful defiance of orders of this Court. In reply dated 7-11-1993 filed on behalf of respondents including Chand Rani, it has also been stated that the respondents tender an unconditional apology and pray for forgiveness. Counsel for Chand Rani has contended that Chand Rani is more than 70 years of age and she had no knowledge of the stay order passed in Civil Misc. No. 426-C of 1983 on 28.2.1983.

(2.) In view of the circumstances brought on record, I am not prepared to accept this contention of counsel for Chand Rani. No affidavit of the counsel has been filed by Chand Rani that counsel, who filed application on her behalf for bringing her on record as legal representative, had not informed her about the stay order which had been passed on 28-2-1983 in C.M. No. 426-C of 1983. Since application under Order 22 Rule 4 of the Civil Procedure Code, on behalf of Chand Rani was filed by the same Advocates who had earlier been representing Shiv Kumar, it is not acceptable that Chand Rani had not come to know about the stay order. It may be true that she may not have understood the true import of the stay order, but it cannot be said that the sale made by her was not in violation of order dated 28-2-1983. Accordingly, I am of the view that Chand Rani has wilfully disobeyed the orders of this Court and is liable to be punished for contempt of order dated 28-2-1983. Having regard to the age of Chand Rani and the fact that sale made by her is lis-pendens and hit by the provisions of Section 52 of the Transfer of Property Act, I am of the view that it would meet the end of justice if she is punished with a fine of Rs. 500/-. It is so ordered. In case she fails to deposit the fine within one month from today with the Registrar of this Court, she shall undergo simple imprisonment of 15 days.