MANMATI KUER Vs. RAMGOPAL SINGH

JUDGEMENT

(1.) This is an appeal against the order passed by the lower Court in an application under Order 39, Rule 2 (3), of the Code of Civil Procedure, by the plaintiff.

(2.) The plaintiff-appellant instituted a title suit No. 177 of 1972 for a declaration that the deed of gift dated the 17th March, 1972, alleged to have been executed by one Ayodhya Singh in favour of the defendant-respondent, was illegal, invalid and ineffective. Subsequently, an application was made for an injunction restraining the defendant-respondent from executing any sale deed with respect to the property hi suit. This application seems to have been filed on 23-6-72 in which a prayer for ad interim injunction was also made. It was ordered to be placed on the 29th of June, 1972. On the 29th of June, 1972, ad interim injunction prayed for was issued asking the defendant to show cause within a week as to why the same should not be made absolute. The next date fixed was 25-7-72. On the 1st of July, 1972, notice etc., were filed. It appears that on 19-7-72 the defendant-respondent appeared through his lawyer and prayed for time to file his written statement and show cause. He was ordered to do so by 25-7-72. On 25-7-72, the defendant-respondent filed an application for time praying to hear the application regarding ad interim injunction on the 28th July, 1972. In the meanwhile, it appears that on the 27th July, 1972, the defendant-respondent executed a sale deed in favour of one Saligram Mahton in respect of some of the properties in suit. It was thereafter that an application under Order 39, Rule 2 (3), Code of Civil Procedure, was filed by the plaintiff stating, inter alia, that even in spite of the service of notice to show cause, and having full knowledge of the order of ad interim injunction, the defendant-respondent had executed a sale deed and had thus violated the order of the Court and should be penalised for the same. The said application was numbered as Miscellaneous Case 16 of 1972 and was opposed by the defendant-respondent on the ground that there was fraudulent suppres- sion of the notice to show cause and the report with respect to the service of notice was incorrect. It was contended that the defendant-respondent had never violated the order for injunction knowingly or negligently. Three witnesses each were examined on behalf of the parties and the injunction and the show cause notices along with the endorsements were brought on record as Exhibits 1 and 2. On a consideration of the facts and circumstances in the case, tine Court below came to the conclusion that it had not been established that the defendant had violated the order of ad interim injunction knowingly. The miscellaneous case filed by the plaintiff was, therefore, dismissed. Hence, this appeal.

(3.) The main question for consideration in this case is as to whether there had been proper service of the notices of injunction and show cause and whether the defendant-respondent had knowingly violated the order of the Court. There is no controversy that the notice to show cause (Exhibit I) was served upon the defendant-respondent. Its service has been admitted. The defendant-respondent did not admit the service of the other notice (Exhibit 2). Exhibit 1 reads as under : ..(Verunacular Matter Omitted).. This notice was served on 6-7-72. From this it appears that the defendant was asked to show cause why the order of ad interim injunction should not be made absolute against him. Therefore, it is evident that he knew that an order of ad interim injunction had been made. He executed the Vakalatnama on 10-7-72 which was accepted by his lawyer on 19-7-72 and it was filed on the same date. It appears that he was negotiating for the sale of the land in suit but the negotiation had not been finalised by that time. He again appeared on 25-7-72 end filed a petition for time and, on his application, 28-7-72 was fixed for hearing the matter regarding ad interim injunction. This is apparent from the order sheet of the Court below which reads as under: ..(Verunacular Matter Omitted).. It is only one day before the date was fixed that the defendant-respondent executed the sale deed on 27-7-72. Thus from the contents of Exhibit 1, the order-sheet of the miscellaneous case, and the conduct of the defendant-respondent, it is evident that the defendant had full knowledge of the order regarding ad interim injunction before the execution of the sale deed; and I find accordingly. In view of my above finding, although it is not necessary to find as to whether Exhibit 2 was also served on the defendant, but in the facts and circumstances of the case, it appears to me that Exhibit 2 was also served upon the defendant-respondent. It does not appear to us likely that one of the notices will be served and the, other will not be served when both were issued on the same date. A.W. 1, who was a pairvikar of the plaintiff, stated that both the notices were served upon the defendant on 6-7-72. He took one of them and refused to take the other after knowing its contents. A.W. 2 is the serving peon who served Exhibit 2 upon the defendant. He has stated that the defendant read the notice and after knowing the contents thereof returned it to him without putting this signature. There is no reason to disbelieve these witnesses. O.W. 1 who was examined on behalf of the defendant-respondent, stated that except one notice no other notice was served upon the defendant on 6-7-72. In cross-examination tills witness stated that he had nothing to do with the case. He stated that he did not see the notice and, therefore, could not say about either of the notices. O.W. 2 was an employee in the same office in which the defendant works. He also stated that on 6-7-72 no other notice was served on the defendant. This witness, apart from being a co-worker of the defendant, was not expected to remain with the defendant at all tunes. O.W. 3 is the defendant himself who is vitally interested in the case. Upon the evidence of these witnesses, it cannot be said that Exhibit 2 was not served upon the defeiidant-respondent.