Shri Rajendra Sharma Vs Shri Satish Chandra Garg And 4 Others
Allahabad High Court (Division Bench (DB)- Two Judge)
SPECIAL APPEAL DEFECTIVE, 806 of 2015, Judgment Date: Apr 07, 2015
Case :- FIRST APPEAL FROM ORDER No. - 806 of 2015 Appellant :- Shri Rajendra Sharma Respondent :- Shri Satish Chandra Garg And 4 Others Counsel for Appellant :- Dinesh Kumar Chadha Hon'ble Krishna Murari,J. Hon'ble Pratyush Kumar,J. Heard learned counsel for the appellant. The present appeal has been filed under Order 43, Rule 1 (r ) of the Civil Procedure Code by plaintiff/applicant/appellant (hereinafter referred as appellant) thereby challenging the legality of judgment and order dated 18th December, 2014 passed by Sri S.C. Rana, Additional District Judge, Court No.10, Aligarh in Regular Miscellaneous Case No.17 of 2010 (Sri Rajendra Sharma Vs. Satish Chand Garg and others) whereby the application of the appellant under Order 39, Rule 2 A of the Civil Procedure Code read with Section 151 of the Civil Procedure Code, has been dismissed. In support of the present appeal, learned counsel for the appellant has argued that the impugned judgement and order are wholly illegal and arbitrary. The learned Judge has failed to construe properly the documents and orders, copies whereof have been filed before him. He further submits that opposite party /respondent nos. 1 to 3 (hereinafter referred as respondent nos. 1 to 3) and opposite party no.2/respondent nos.4 and 5 (hereinafter referred as respondent nos. 4 and 5) in spite of knowledge of injunction order dated 23rd February, 2004, passed in Original Suit No.848 of 2001 (Rajendra Sharma Vs. Narendra Sharma and 2 others ) and order dated 24th September, 2009 have willfully disobeyed the same and respondent nos. 1 to 3 had purchased the property in dispute and with the help of respondent nos. 4 and 5 took forcible and illegal possession thereof. The learned trial Judge has erroneously held that respondent nos. 1 to 3 were not bound by the order dated 23rd February, 2004. Before proceeding further, we would like to notice the facts involved in the present appeal, briefly: The appellant had filed Original Suit No.848 of 2001 against Narendra Sharma, Smt. Hemlata Sharma, Chetan Sharma, Km.Charu Sharma, Smt.Saroj Kapoor and Brijendra Sharma (not arrayed as respondents in the memo of appeal, hereinafter they will be referred as third party) on 29th November, 2001 seeking the relief of prohibitory injunction, that the third party be restrained from transferring ownership rights or possession of the property in suit surreptitiously to third person till the partition is effected. For the present purpose, it is relevant to mention here that on 23rd February, 2004, in the said suit trial court granted the interim injunction and restrained the third party not to transfer any specific portion of the suit property to a third person with the liberty that they may sell their shares. Thereafter, litigation went on and the transferees pendentilite were impleaded in Original Suit No.848 of 2001. Respondent no.1 filed a suit for partition Original Suit No.963 of 2005 against the appellant and two others before the Court of Civil Judge (S.D.) Aligarh. In that case, an interim injunction was granted whereby they became 3 entitled to occupy (excluding the dwelling part) parts of the property in dispute. The appellant aggrieved with this order filed FAFO No.79 of 2006 before this court but no interim order was granted. Thereafter on 24th September, 2009, appellant moved an application with the request that SSP be directed to ensure compliance of injunction order dated 23.2.2004. This request was accepted on the same day. On 3rd May, 2010, the appellant moved an application under Order 39, Rule 2A C.P.C. whereby it has been stated that respondent nos. 1 to 5 have willfully deliberately disobeyed injunction orders dated 23.2.2004 and 24.9.2009. Respondent nos. 1 to 3 filed a written statement against this application and denied the averments made in the application. Their main defence was that the injunction order dated 23.2.2004 was passed prior to purchase of the property and they were not aware of the same. After providing opportunity to both the parties for producing their evidence, the application under Order 39, Rule 2 A of Civil Procedure Code was rejected by the impugned order on the ground that appellant had failed to prove that respondents had disobeyed the aforesaid injunction orders. In this factual matrix and in the light of the findings recorded by the learned trial Judge, we propose to appreciate the arguments advanced on behalf of the appellant. Perusal of the impugned order reveals that when injunction order dated 23.2.2004 was passed in Original Suit No.848 of 2001, respondent nos. 1 to 3 were not party to the 4 suit. By this order, third party was restrained from transferring any specific portion or possession of the property in dispute to third person. They were given liberty to sell their shares in the property in dispute. This order has been annexed to the supporting affidavit as Annexure 1. From the perusal of the same, we find that the learned trial judge has reproduced the exact interim injunction granted by the Court. He has nowhere misconstrued this order. So far as question of order dated 24th September, 2009 is concerned, copy whereof has been annexed to the supporting affidavit as Annexure 10, its perusal goes to show that order passed to the effect that SSP was directed to ensure the compliance of order dated 23.2.2004 and its violation, direction was specifically given to the SSP Aligarh. Language of the order itself shows that except SSP Aligarh, no other person was required to make compliance of the same. Perusal of the impugned order also reveals that while discussing the sale deeds dated 28th September, 2005 and 3rd October, 2005, the learned trial judge has extracted some portions of those sale deeds and literally construed without adding or subtracting anything from, those documents, therefore, we are of the opinion that the impugned order does not suffer any infirmity on the ground of misinterpretation of documents or injunction orders dated 23rd February, 2004 and 24th September, 2009. 5 The next argument advanced on behalf of the appellant is that the learned trial judge has erred in recording the finding that the respondents were not aware of the orders alleged to be disobeyed by them. The court below in the impugned order has noticed this fact that appellant has orally examined himself as P.W.-1 and filed three affidavits alongwith 15 documents. Respondent no.4 himself examined as O.P.W.-1. True copies of the affidavit of the appellant along with his oral deposition dated 14th July, 2014 and oral statement of respondent no.4 have been annexed with the supporting affidavit. We have perused these and we find that in the affidavit the appellant in para 3 has stated that respondent nos. 1 to 3 were bound by the order dated 23rd February, 2004 being successor in interest of the third party. This statement is not a statement of fact but it is a legal principle which may amount to constructive notice of the injunction order dated 23.2.2004 but for constituting willful disobedience of the injunction order the disobedience must be willful and both should be proved by cogent evidence. A person cannot be held guilty of such disobedience merely on the basis of constructive notice or surmises. It has been earlier held that order dated 24th September, 2009 was directed against the SSP Aligarh. The appellant has not examined the process serving officer, who had effected the service of the order dated 24th September, 2009 on the 6 respondent nos. 1 to 5. Even the report of the Amin dated 31st October, 2009 is silent in regard to service of order dated 24th September, 2009 on respondent nos. 1 to 5. Thus, we are in an agreement with the learned trial Judge that the appellant has failed to prove that respondent nos.1 to 5 had knowledge about the orders dated 23rd February, 2004 and 24th September, 2009. Contention of the appellant in this regard is without substance, hence, rejected. On behalf of the appellant, it has been argued that the learned trial Judge has wrongly held that respondent nos. 1 to 3 were not bound by injunction order dated 23rd February, 2004 since they were not party to the suit on the relevant date. In the impugned order the learned trial Judge has noticed this fact that respondent nos. 1 to 3 were impleaded as defendants on 6th August, 2009. Thus, on the date of the order dated 23rd February, 2004, they were not party to the suit nor the appellant could prove that they were aware about the said interim order. The contention of the appellant in this regard is not substantiated from the record, hence, rejected. The first argument of the appellant is that the impugned judgment and order is illegal, arbitrary and it has been passed without analysing the fact pleaded by the appellant. In view of the discussion made hereinabove, it is evident that parties were given full opportunity of placing their evidence and arguments, thereafter, application under Order 7 39 Rule 2 A of Civil Procedure Code was disposed of by a reasoned order. Findings have been recorded after appreciating the evidence in proper prospective keeping in view the nature of the proceedings i.e. quasi criminal. We find no reason to differ from the view taken by the learned trial Judge and findings recorded in the impugned judgment and order. Only merely by saying that the order is arbitrary or illegal, it cannot be held so without any cogent reasons which the learned counsel for the appellant has failed to show in the present appeal. In view of the above, the appeal appears to be without substance and liable to be dismissed. The appeal is, accordingly, dismissed. Order Date :- 7.4.2015 SKD