KULDIP NARAIN JAISWAL Vs. SHEO NARAIN JAISWAL

JUDGEMENT

(1.) I.A. No. 961 of 2012 has been filed under Order XXXIX Rule 2-A of the C.P.C. with a prayer to attach the properties of respondent No. 1 and further to detain him under civil imprisonment for disobedience of order dated 10.10.2006 passed in I.A. No. 2458 of 2006 whereby respondent No. 1 has been directed to maintain status quo till disposal of interlocutory application filed for grant of temporary injunction. The facts, in brief, is that Misc. Appeal No. 18 of 2003 has been filed by the petitioner against the order dated 10.10.2002, passed by the then learned Sub Judge-1, Ranchi in connection with Tide Suit No. 156 of 2002 by which the petition dated 16.09.2002 filed under Order XXXIX Rule 1 & 2 read with Section 151 of the C.P.C. was rejected. The misc. appeal was admitted on 14.07.2006 and notices were directed to be served against respondents. Despite service of notice the respondents did not appear whereafter the appellant pressed interlocutory application being I.A. No. 2458 of 2006 for grant of temporary injunction against respondent No. 1 restraining him from transferring the suit property till the disposal of Misc. Appeal No. 18 of 2003. When respondent No. 1 did not appear, this Hon'ble Court vide order dated 10.10.2006 directed respondent No. 1 to maintain status quo till disposal of interlocutory application filed for grant of temporary injunction. The order dated 10.10.2006 was communicated to lower Court and accordingly incorporated in the ordersheet. The respondent No. 1 was regularly appearing in the Court below for making pairvee and he had also adduced evidence. The order by which status quo was granted was well within the knowledge of respondent No. 1 which is apparent from the ordersheet of lower Court but respondent No. 1, in utter disobedience and showing disregard to the order passed by this Court, executed sale deed dated 03.07.2010 in respect of plot No. 1793 in favour of one Subhash Chandra Bothra which is part of suit property, being subject matter of Title Suit No. 156 of 2002. Thus, respondent No. 1 has deliberately, intentionally and knowingly violated and disobeyed the order dated 10.10.2006 by which he was directed to maintain status quo in respect of suit property and, therefore, he is liable to be punished under Order XXXIX Rule 2-A of the C.P.C. and appropriate order to attach the following property:-

(2.) Respondent No. 1 filed show cause against I.A. No. 961 of 2012 stating therein that Tide Suit No. 156 of 2002 has been jointly filed by his brother and cousin but he has been contesting the suit alone. That portion of Sethia Land is subject matter of Title Suit No. 156 of 2002 in which the appellant has been claiming his 1/10th share. As a matter of fact Sethia Land consisting of 4.63 acres was purchased by respondent No. 1 from his own fund and resources by registered deed in the year 1958 i.e. much after partition of the joint family in 1954 and earlier to this he has sold portion of that land to different purchasers and it was never objected by any of the parties to Title Suit No. 156 of 2002. Now an area of 105 Kathas in all has remained with respondent No. 1 and he is absolute owner of the said property and therefore, he has every right to sale it. The prayer for grant of injunction made by appellant was refused by the then Sub Judge-1, Ranchi vide order dated 16.09.2002. Till recent past respondent No. 1 had no knowledge about pendency of Misc. Appeal No. 18 of 2003, preferred against the order dated 16.09.2002. Being totally ignorant about pendency of such appeal before this Hon'ble Court or any order by which the parties have been directed to maintain status quo he had in due and open exercise of his rights over the suit property, sold 11 Kathas of land which is small area of the total land area measuring 105 Kathas. The sale was made by registered deed dated 03.07.2010. The respondent was not served with any notice for his appearance in Misc. Appeal No. 18 of 2003. It will be evident from the case record that no notice in I.A. No. 2458 of 2006 was ever issued and order dated 10.10.2006 has been obtained by the appellant by keeping this Court in dark. This Court has also not given reasoning for passing ex-parte order in favour of the appellant. No compliance of Order XXXIX Rule 3 C.P.C. was done prior to passing of said order and therefore, the petition filed under Order XXXIX Rule 2A is liable to be out rightly rejected. In this context he has relied on the judgment A VENKATASUBBIAH NAIDU v. S CHELLAPPAN, 2000 7 SCC 695 para-15. He has further made out a case that 18 months after execution of registered sale deed for the first time he could learn about pendency of this Misc. Appeal No. 18 of 2003 preferred against the order dated 16.09.2002 passed by learned Sub Judge-1, Ranchi in connection with Title Suit No. 156 of 2002. It was vehemently argued that the appellant has failed to secure injunction order in his favour by the trial Court and then he preferred an appeal and by keeping the respondent in dark and without bringing it to the knowledge of the respondent No. 1 that Misc. Appeal has been filed, he has secured to obtain an ex-parte interim injunction order by which the parties have been directed to maintain status quo. It is admitted position that no notice in connection with I.A. No. 2458 of 2006 was ever served upon the answering respondent.

(3.) The appellant has also filed reply to the show cause filed by respondent No. 1 with annexures i.e. Annexure-3 copy of the ordersheet of the lower Court relating to Title Suit No. 156 of 2002, Annexure-4 copy of written statement filed by respondent No. 1 in the Court below, Annexure-5 one photograph, Annexure-6 copy of the order passed in F.A. No. 123 of 1995. The learned counsel for the appellant has relied on the judgments , (Samee Khan Vrs. Bindu Khan, 1998 7 SCC 59), (Rajinder Kaur Vrs. Sukhbir Singh, 2002 AIR(P&H) 12), , Punjab & Haryana High Court Gurdip Singh Vrs. Mandip Singh, (Surjit Singh Vrs. Barbans Singh, 1995 6 SCC 50) (Manohar Lal Vrs. Ugrasen, 2010 11 SCC 557), (Arjan Singh Vrs. Punit Ahluwalia, 2008 8 SCC 348), (Tayabbhai M. Bagasarwalla Vrs. Hind Rubber Industries Pvt. Ltd., 1997 3 SCC 443) (Savitri Devi Vrs. Civil Judge (Sr. Divn., 2003 AIR(All) 321), Gorakhpur and (A. Venkatasubbiah Naidu Vrs. S. Chellappan, 2000 7 SCC 695).