Dwarika Nath Agrahari vs State of U.P.and Others

The petitioner Dwarika Nath Agrahari who happens to be defendant No. 1 in suit No. 35 of 1982, which is pending in the court of Civil Judge, Mirzapur, has come up with following prayers:

"(1) to issue a writ, order or direction in the nature of mandamus commanding the respondent Nos. 1,2,3,4,5,6,7,8,10,11 and 12 to put of the police lock, which has been kept since 2941997 in an illegal and arbitrary manner and further return the petitioner''s ceased articles as it is before any respectable or responsible authority;

(ii) to issue a writ, order or direction in the nature of mandamus commanding the respondents Nos. 1,2 and 3 to deal with the illegal and arbitrary action of the guilty respondent Nos. 4, 5, 6, 7, 8, 9, 10, 11 and 12 and provide them adequate penalty for the same;

(iii) to issue a writ, order or direction in the nature of mandamus commanding the respondents Nos. 4,5,6,7,8,9,10,11 and 12 adequate punishment for their illegal and arbitrary action, which they had performed in an illegal and arbitrary manner while acting otherwise than in accordance with law;

(iv) to issue any other suitable writ, order or direction as this Hon''ble Court may deem fit and proper to meet the ends of justice;

(v) to award cost of the writ petition to the petitioner."

Respondent Nos. 4 and 5 Suresh Kumar Tripathi and Shailendra Pati Tripathi respectively are sons of Ramdeo Tripathi who was defendant No. 2 in the suit. The name of Ramdeo Tripathi was expunged and his heirs and legal representatives, including the respondent Nos. 4 and 5,, already stands substituted as Defendant Nos. 2/1 to 2/9 in the suit. The writ petitioner is defendant No. 1 in the suit, who is own elder brother of the plaintiff of the suit. The suit in question has been filed for partition of the plaintiff''s share in a house situated in Mohalla Badli Katra, Town Mirzapur bounded on east by a Government road, on west by a Government lane, on north by the godown of Ram Das Fakir Chand presently Jai Singh Advocate, and south by the house of Laxmi Narain presently Thakur and Kanhaiya Lal. In the plaint of the suit it has been asserted, inter alia, that the plaintiff is coshare in possession to the extent of 44:3 paisa and that the defendant No. 1 is cosharer in possession to the extent of 49 paisa and that the defendant No. 2, who was a tenant in the upper portion of the house, has become a cosharer to the extent of 6:2/3 paisa on the strength of the purchases from the owners of the building. Respondent No. 4 herein, who was one of the substituted legal representative of deceased defendant No. 2, filed an application dated 21121985 (as contained in Annexure 7 to the supplementary rejoinder affidavit filed by the petitioner today) stating that the plaintiff and defendant No, 1 be restrained from transferring; the house in favour of any one or be restrained from dispossessing him during the pendency of the suit. Learned Civil Judge, II, Mirzapur vide his order dated 72 1986 rejected the said petition after contest. Respondent No. 4 herein went up in Miscellaneous Civil Appeal No. 13 of 1986. This appeal was contested. Vide order dated 2981996 the Special/Additional District Judge, Mirzapur accepted the appeal (copy appended as Annexure 2 to the writ petition) and disposed of the petition dated 21121985 filed by Respondent No. 4 with modifications directing the plaintiff, defendant No. 1 and defendant Nos.. 2/1 to 2/9 not to transfer any portion of the disputed house with a further rider that if they want to do so in a special circumstance they are required to taken prior permission of the Court. The learned Additional District Judge also directed after, recording a finding that since all the parties to the suit are cosharers, none of them will interfere or create hindrance in exercise of their joint rights. The learned Additional District Judge further expected from the parties that they will cooperate in the expeditious disposal of the suit. He also expected from the court below that it will dispose of the suit with promptness and giving priority to it. It further appears that the learned Additional District Judge directed the parties to appear in the court below on 1291996.

The petitioner, as already stated above, has come up for grant of substantially three reliefs alleging some action by the police authorities in collusion with the respondents.

Sri P.K. Misra, learned Counsel for the petitioner, submitted that in the peculiar facts and circumstances the petitioner cannot get any relief from the appellate court which had directed maintenance of status quo by the parties which has been breached by the Defendant No. 2 serier in collusion with the police authorities who are not parties to the suit.

Sri R.N. Singh, learned Counsel appearing on behalf of respondent No. 4, took up a stand that the allegations made by the petitioner are untrue though for the redressal of his alleged grievance he can move the appellate court alongwith an application under Order XXXIX, Rule 2A read with Section 151 of the Code of Civil Procedure and that the appellate court will be fully entitled to grant reliefs to the petitioner provided he makes out his case.

Sri D.R. Shukla, learned Counsel appearing on behalf of respondent No. 6, contended that his client is a retired Director General of Police of this State who has nothing to do with the inter se litigation of the parties to the suit and has been illegally and on wrong facts dragged to this Court.

Sri Jagdish Tiwari, Teamed Additional Government Advocate appearing on behalf of respondent Nos. 1 to 3 and 8 to 12, contended that they have nothing to do with the personal litigation of the parties to the suit and they have been wrongly impleaded by asserting incorrect facts.

Mr. Misra, learned Counsel for the petitioner, in reply, contended that the submission made by the learned Counsel appearing on behalf of different respondents are not sound on facts and law as despite status quo order being granted by the appellate court, the petitioner has been dispossessed, his articles looted which is apparent from the police reports and he is entitled tothe reliefs claimed for from this Court. He further contended that since the police authorities are not parties to the suit, therefore, the petitioner cannot take action under Order XXXIX, Rule 2A of Code of Civil Procedure and he shall not get the reliefs from the civil appellate court. He also contended that neither had the defendant No. 2 nor has his substituted heirs and legal representatives defendant Nos. 2/1 to 2/9 filed any written statement and the Civil Court for the reasons best known to it is not taking steps under Order VIII, Rule 10 of the Code of Civil Procedure.

By a catena of decisions rendered by the Supreme Court the law now stands well settled that if under the provisions of the Code of Civil Procedure a relief can be obtained in that event a party cannot take recourse to availing of his constitutional remedy under Article 226 of the Constitution of India.

Having heard learned Counsel for the parties at length we are further of the view that the questions raised by one or the other necessarily involves investigation of facts.

The question, therefore, is as to whether this Court, in the peculiar facts and circumstances, should proceed to adjudicate the issue raised by one or the other party or direct the petitioner to take recourse to the provisions of Order XXXIX, Rule 2A of the Code of Civil Procedure.

Order XXXIX, Rule 2A of the Code of Civil Procedure reads thus:

"2. A. Consequence of disobedience or breach of injunction.(1) In the case of disobedience of any injunction granted or other order made under Rule 1 or Rule 2 or breach of any of the terms on which the injunction was granted or the order made, the Court granting the injunction or making the order, or any Court to which the suit or proceeding is transferred, may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the Court directs his release.

(2) No attachment made under this rule shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues, the property attached may be sold and out of the proceeds, the Court may such compensation as it thinks fit to the injured party and shall pay the balance, if any, to the party entitled thereto."

In our considered view the provisions aforementioned are sufficient to safeguard a person in whose favour an order of injunction has been passed. In the instant case the order of injunction passed by the civil appellate court is apparently in favour of the petitioner. The civil appellate court will not be powerless to pass appropriate orders, apart from restoring back possession, even against such persons who were/are not parties to the suit under its inherent jurisdiction recognised under Section 151, Code of Civil Procedure which has its root in necessity provided such a case is made out.

In this context relevant is the Division Bench decision of Andhra Pradesh High Court in R.N. Narapa Reddy v. Jagrlamudi Chandramouli and others, AIR 1967 A.P. 219 therein, speaking for the Court, its Chief Justice observed as follows:

"........It is now well settled that the Court has undoubted jurisdiction to commit for contempt a person not included in an injunction and/or not a party to the action who, knowing of the injunction, aids and abets a defendant in committing a breach of it."

We are oblivious of the legal position that if the Civil Appellate Court comes to a conclusion that the police authorities had committed a contempt, in that event it will make a report to this Court for taking action under Article 215 of the Constitution of India. We are conscious of Section 20 of the Contempt of Court Act, 1971 which prescribes a period of one year only for initiation of proceeding in contempt but that bar is not applicable to a proceeding under Article 215 of the Constitution of India as held by this Court in some cases. We are also of the view that the civil appellate court may direct recovery of the articles of the petitioner alleged to have been looted away by the police authorities or someone else or the petitioner is free to launch FIR or complaint in that regard or if he has already launched FIR/complaint then to pursue it is accordance with law.

Thus, the best course for the petitioner is to knock the doors of the Civil Appellate Court for the redressal of his grievance by filing an appropriate application under Order XXXIX, Rule 2A read with Section 151 of the Code of Civil Procedure, which if made within one week from today shall be considered and disposed of expeditiously preferably within two months.

We further direct respondent No. 4 herein to appear within two weeks from today before the Civil Appellate Court for receiving a copy of the proposed application filed by the petitioner and for filing his counter thereto within one week therefrom. Unfortunately respondent No. 5 herein, who happens to be own brother of respondent No. 4, and on whom we have already presumed earlier service of notice of this writ proceedings for the reasons best known to him has not chose to appear. In the extraordinary circumstances we direct respondent No. 4 to apprise respondent No. 5 of this order of ours and for his appearance also before the Civil Appellate Court within same two weeks from today, who shall also be obliged to file his counter, if he chooses to contest the contemplated proceeding alongwith respondent No. 4 or separately.

We are informed that 6598 is the next date fixed in Suit No. 35 of 1982 pending in the court of Civil Judge, Mirzapur for purpose of filing written statement by defendant Nos. 2/1 to 2/9. We direct the Trial Court that if any of the defendant fails to file his written statement on or before 6598, in that event to make stringent action under Order VIII, Rule 10 of the Code of Civil Procedure on that very date, since the suit has remained pending for 17 years by now. We also direct the Trial Court that on 6598 it will fix a date for settlement of issue in any event not beyond one week from that date which shall also direct the parties to file their documents alongwith list of witnesses within one week further from that day and shall fix a firm date commencing the trial of the suit within two weeks from the date of settlement of the issues. We also direct the Trial Court to proceed with its trial on daytoday basis curbing any unreasonable prayer for adjournment which may be made by one or the other party by strictly adhering to the provisions of Order XVII of the Code of Civil Procedure.

With these observations and directions to the parties as well as to the courts below this writ petition is disposed of.

The office is directed to despatch a copy of this order immediately to the Trial Court as well as the Civil Appellate Court for compliance of the directions made in this order. Petition disposed of.