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
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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
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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
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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.
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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
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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
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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