KRISHNA DEVI @ PREMA DEVI SHARMA Vs. VIJAY SHARMA

JUDGEMENT

(1.) Heard learned counsel for the parties.

(2.) The order rejecting application under Sec. 94(3) Civil Procedure Code dated 15th April, 2015 in Title Suit No. 45 of 1992 is under challenge in the present writ application. Petitioner has also prayed for a direction upon the court below for reconstruction of plaintiff's exhibits of Title Suit No. 45 of 1992 pending in the Court of learned Civil Judge-VIII (Senior Division), Ranchi. The suit is of the year 1992 praying for declaration that plaintiff nos. 3 and 4 are coparceners of defendant nos. 1 and 2 being male members of joint family and plaintiff as the members of the said joint family is not bound by collusive Partition Suit no. 20 of 1977, which was decreed by the Court of Sub Judge-I Ranchi. Plaintiff had also sought further relief for declaration as member of the joint family owning the suit property and right of unrestricted access to the residence of the suit property. On her application on 22nd Aug., 1992, temporary injunction was granted by order at Annexure-1, restraining the defendants from disturbing the peaceful possession of the plaintiff. Parties were directed to maintain status quo till the filing of show cause. In 2010, an application was moved under Order 39 Rules 1 & 2 read with Sec. 151 Civil Procedure Code by the plaintiff on which vide order dated 24th November, 2010, it was recorded that learned counsel for the defendants have submitted that they would not indulge in disturbance. It is not a matter of dispute that certain exhibits adduced by the plaintiff during the course of suit have vanished and are not available on the records of learned trial court as is apparent from the order dated 9th December, 2010. A prayer for reconstruction of the document has been made on behalf of plaintiff on which vide order dated 17th June, 2015, the matter has been referred to the Court of Principal Judicial Commissioner, Ranchi for according permission to reconstruct the said document. The order records that the defendants have not made any objection to the documents sought to be reconstructed.

(3.) Learned counsel for the respondents also reiterated the stand that they would not have any objection to reconstruction of the document. During the continuance of the proceedings, an application was again made under Order 39 Rule 2 alleging that the order of interim injunction is being violated and it should be continued to restrain the respondents from causing breach of peace. That prayer was declined by learned court below vide order dated 11th Feb., 2015 (Annexure-6) to the writ petition. That order however is not under challenge. Plaintiff took resort of the provisions of Sec. 94 read with Sec. 151 Civil Procedure Code alleging that under supplemental powers available to learned court below, it could restrain the respondents from undertaking any construction over the suit property and causing breach of peace despite the fact that a petition under Order 39 Rule 2 had also been rejected.