Bhago (deceased) through LRs & Others Vs Gianoo (deceased) through LRs & Others

Virender Singh, J

1. Applicants­appellants have filed the present application, under Order 39 Rule 2­A, read with Section 151 of the Code of Civil Procedure (hereinafter referred to as ‘the CPC’), seeking the following relief:­

“It is, therefore, humbly prayed that this application may kindly be allowed and the Respondents may be prosecuted for disobedience of the order dated 27.10.2009, passed in CMP No. 458/2009 by this Hon’ble Court and the respondents be sent to civil prison which is necessary in the interest of law, justice, equity and fair play.”

2. The said relief has been sought on the ground that the applicants have filed Regular Second Appeal No.268 of 2009, before this Court, against the judgment and decree 17.04.2009, passed by the Court of learned Additional District Judge, Solan (hereinafter referred to as the ‘First Appellate Court’), in Civil Appeal No.18­NL/13 of 2008/99.

3. As per the applicants, the said appeal was admitted on 25.6.2009. Along with the said appeal, application, under Order 39 Rules 1 and 2 CPC, was filed, which had been registered as CMP No.458 of 2009 and was disposed of on 27.10.2009, by passing the following orders:­

“ The parties are directed to maintain status quo with respect to the nature and possession of the suit property till the disposal of the appeal. The application stands disposed of.”

4. It is the case of the applicants that during the pendency of the appeal, all the respondents except respondent No.1(a) Nasib Chand, have sold the subject matter of the lis. In this regard, the applicants have given the details of the non­applicants, who have sold the property, which is being reproduced, in a tabulated form:­

5. To substantiate their case, applicants have annexed the photocopies of the sale deeds.

6. All these facts have been highlighted to show that the order dated 27.10.2009, passed by this Court, which was in the knowledge of the non­applicants, has been violated. When, the applicants came to know about the above fact, they have immediately moved an application by mentioning these facts. Thereafter, mutation. regarding the above sale deed, was also entered and sanctioned, despite the fact that the factum of order dated 27.10.2009 has also been brought to the notice of the concerned revenue officer.

7. On the basis of the above facts, a prayer has been made to allow the application.

8. When put to notice, the stand, as taken in the application, has been contested by taking the preliminary objections that the application is not maintainable; the application has been filed with the mala fide intention to pressurize the non­applicants to concede the illegal and unwarranted demands of the applicants; the applicants are estopped from filing the present application on account of their own act and conduct.

9. It is the further case of the non­applicants that at the time, when the litigation was going on between the parties, they were minor and were not aware about the said proceedings. According to them, the sale transaction took place under the bona fide impression, for which, the applicants had tendered unconditional apology before this Court. On the similar grounds, the other contents have been contested. As such, a prayer has been made to dismiss the application.

10. In the application, it has specifically been mentioned that the order dated 27.10.2009 was in the knowledge of the non­applicants, as, they were represented through counsel, who is appearing on their behalf, before this Court.

11. Perusal of the record shows that the Regular Second Appeal was filed against Shri Gianoo, who during the pendency of the lis had expired and vide order dated 16.09.2011, after the death of Gianoo, his legal representatives were ordered to be brought on record as respondents No.1(a) to 1(d).

12. Perusal of the record shows that after the death of respondent No.1(b) Lachhman Dass, CMP(M) No.306 of 2014 was moved and notices of the said application were duly received by the proposed legal representatives No.1(b)(i) to 1(b)(vi) and they were impleaded, as respondents No.1(b)(i) to 1(b) (vi). However, Shri Ashwani Dhiman, Advocate has put appearance on behalf of respondents No.1(a), 1(b)(i) to 1(b)(vi), 1(c) and 1(d), only on 3.8.2022.

13. There is nothing on record to demonstrate that the above respondents had put appearance before this Court, prior to 3.8.2022.

14. Provisions of Order 39 Rule 2­A of the CPC are quasi criminal in nature, as, in case of a willful violation, by a person, who had violated the order, will be sent to civil imprisonment and the allegations, under Order 39 Rule 2­A of the CPC, are required to be proved like a charge.

15. The application is totally silent about the fact as to whether the sale deeds were executed by the non­ applicants/respondents No.1(b)(i) to 1(b)(vi), 1(c) and 1(d), intentionally or willfully. The non­applicants, in this case, have admitted the execution of the sale deeds, but, taken the plea that they were not aware about order dated 27.10.2009. As such, they have tendered unconditional apology. Tendering of unconditional apology does not mean that they have done willful violation of the order.

16. Merely, the notices of the application, under Order 22 Rule 4 CPC, were served upon them, does not mean that they had the knowledge about the order dated 27.10.2009, as, the said application was under Order 22 Rule 4 of the CPC and order, which is stated to be violated, is passed in an application, under Order 39 Rules 1 and 2 of CPC. Knowledge of the litigation can be attributed, but, no inference, with regard to the knowledge of the order dated 27.10.2009, can be inferred.

17. In this case, when, the status quo order was passed, no averments were made, by the applicants, with regard to the actual and factual position, existing on the spot. Even otherwise, in the application, under Order 39 Rules 1 and 2 of the CPC, which has been registered as CMP No. 458 of 2009, there is no whisper with regard to the relief, by virtue of which, the applicants have requested to the Court to restrain the respondents from alienating the same. Averments from paragraphs 2 to 6, as well as, prayer clause are reproduced as under:­

“2. That from the perused of grounds of appeal and judgment attached herewith it is appeared that the appellant have a very good prima facie appeal and the appeal is bound to succeed. The Ld. Court below on wholly conjunctures grounds has dismissed the suit of the applicant/plaintiff. The judgment of the Ld Court below is liable to be set­aside on the substantial question of law.

3. That the Ld. Lower Courts have misread the evidence on record regarding the owner and possession over the suit land and status of parties in the suit property, that undue wattage has been given to the oral evidence of the defendant and the documentary evidence i e revenuer records has been ignored by the Ld Courts hence the finding of the Ld Courts deserves to be set aside.

4. That the applicants/plaintiffs are having a very good prima facie case and the balance of convenience is also in their favour and the appeal is likely to succeed in all probability.

5. That the applicants will suffer irreparable loss and injury which can not be compensated in terms of money in case the illegal, un authorized acts of the non applicant/ defendant is not stayed upon the land of the applicant/plaintiff measuring 10 Bighas 6 Biswas comprised in Khewat/ Khatuni No 103/107 bearing Khasra No 7 and 80, kita 2 situated in village Goel Jamala, Hadbast No 77, Pargana Plassi, Tehsil Nalagarh District Solan, through himself or through his laborer, contractors, agents, employees, relatives, friends.

6. That pending disposal of the appeal the non­applicant / respondent is restraining from interfering in the said property, no harm or prejudice will be caused to the non­applicant / defendant/respondent. The present appellants /applicants are in possession of the suit land.

It is, therefore, prayed that this application may be allowed in the interest of justice and till the decision in the appeal, non applicant/defendant be restrained from interfering in land measuring 10 Bighas 6 Biswas comprised in Khewat/Khatuni No 103/107 bearing Khasra No 7 and 80, kita 2 situated in village Goel Jamala, Hadbast No 77, Pargana Plassi, Tehsil Nalagarh District Solan in any manner. Any other order may be passed in favour of the applicants which this Hon'ble court deems fit and proper in the interest of equity, law and justice.”

18. When, there was no averment, with regard to the apprehension of the applicants, qua the fact that the non­applicants will alienate the suit land, then, the status quo order dated 27.10.2009 cannot be interpreted in the manner to include the alienation under the said order, as the prayer was with regard to the fact that the defendants be restrained from interfering in the suit land.

19. At the cost of repetition, the provisions, under Order 39, Rules 2­A, are quasi criminal in nature, as, in case of a willful violation, of the order, consequences are of penal in nature and the same are required to be proved like a charge, in the present case.

20. The applicants have to establish beyond any shadow of doubt that the non­applicants had committed disobedience, even though, they had full knowledge of the same, as, the non­applicants have taken the defence of not knowing the order of status quo, in this case.

21. Moreover, in view of the discussion made above, this Court is of the view that averments made in the application are too short to constitute ‘willful disobedience’.

22. In view of the discussion, made above, the applicants are not able to make out a case for taking the action, against the non­applicants/respondents, for willful violation of the order dated 27.10.2009.

23. Consequently,   the   present   application   is dismissed.