Nav Ratan Singh vs Kamal Singh & Ors

This petition under Article 227 of the Constitution of India has been filed against the order dated 1.12.2018 passed by Third Additional District Judge, Vidisha to the Court of First Additional District Judge, Vidisha in Misc. Civil Appeal No.21/2018 by which the appeal filed by the respondents No.1 and 2 has been allowed and the Appellate Court has granted temporary injunction in their favour thereby restraining the petitioner from interfering with the peaceful possession of the respondents.

It is submitted by the counsel for the petitioner that the respondents No.1 and 2 have filed a suit for declaration of title and permanent injunction. It is their contentions that the plaintiffs/respondents No.1 and 2 and defendant No.1 Amar Singh are cousin brothers and the property belongs to their grandfather. Thus the respondents No.1 and 2 as well as respondent No.3 Amar Singh have equal share in the property. However, the respondent No.3 has sold the property to the petitioner and the plaintiffs/respondents No.1 and 2 are in possession of the same, therefore, a suit was filed for declaration of title as well as for declaration of sale deed dated 31.3.2016 as null and void and also for declaration that the plaintiff is not entitled for mutation of his name and also for issuing the permanent injunction that the defendants No.1 and 2 may not interfere with the peaceful possession of the plaintiffs either by themselves or through their agents.

An application under Order 39 Rule 1 and 2 of CPC was also filed which was duly replied by the petitioner and the Trial Court by order dated 19.7.2018 passed in Civil Suit No.19-A/2017 rejected the application filed by the respondents No.1 and 2 under Order 39 Rule 1 and 2 of CPC. Being aggrieved by the order of the Trial Court, the respondents No.1 and 2 filed a Miscellaneous Civil Appeal No.21/2018 which has been allowed by order dated 1.12.2018.

It is submitted by the counsel for the respondents No.1 and 2 that the petitioner has not deliberately filed the complete documents along with the petition. He has not filed the written statements filed by the defendant No.1 as well as the defendant No.2. Certain admissions were made by the defendant No.1 and defendant No.2 in their written statements which would clarify the legal and factual position. The petitioner had earlier filed a suit for partition in respect of the property in dispute and respondents No.1 and 2 when came to know about the pendency of the said civil suit, filed an application under Order 1 Rule 10 of CPC pointing out their right and entitlement in the property in dispute and accordingly the application filed by the respondents No.1 and 2 under Order 1 Rule 10 of CPC was allowed. Being aggrieved by the order of the Trial Court, the petitioner had filed a writ petition before this Court and when it was realized by the defendants No.1 and 2 that they may not succeed, then they cleverly got the civil suit dismissed and accordingly withdrew the writ petition by mentioning that it has become infructuous.

It is submitted that all these documents have been deliberately suppressed by the petitioner. It is further objected by the respondents No.1 and 2 that whenever a petition under Article 227 of the Constitution of India is filed, then the petitioner must place all the documents on record which were before the Trial Court or Appellate Court and without fulfilling the minimum requirement, the petition has been filed in a most cleverly manner by suppressing the crucial documents from this Court. It is further prayed that this Court may issue a direction that in petitions of such a nature, all the documents should be placed on record.

Per contra, it is submitted by the counsel for the petitioner that the counsel for the respondents No.1 and 2 has leveled serious allegations against the counsel for the petitioner.

So far as non-filing of the copy of written statement is concerned, the application under Order 39 Rule 1 and 2 of CPC was decided by the Trial Court, even prior to filing of the written statement, therefore, the written statement was not before the Trial Court and thus the same were not placed on record.

Be that whatever it may.

It is the contention of the counsel for the respondents No.1 and 2 that certain admissions made in the written statement filed by the defendants No.1 and 2 have an important bearing on the outcome of the application filed under Order 39 Rule 1 and 2 of CPC, therefore, it was prayed by the counsel for the respondents No.1 and 2 that he has filed those documents before this Court, therefore they may be considered while deciding the said petition.

Heard the learned counsel for the parties.

This Court is of the considered opinion that any document which was not before the Trial Court or the Appellate Court should not be considered by this Court and if this Court is of the view that the documents which have been placed on record are important document having some bearing on the outcome of the proceedings, then instead of substituting its own findings must remand the matter back to the Trial Court for adjudication of the application filed under Order 39 Rule 1 and 2 of CPC afresh. Accordingly, by setting aside the order dated 1.12.2018 passed by Third Additional District Judge, Vidisha to the Court of First Additional District Judge, Vidisha in Misc. Civil Appeal No.21/2018 and order dated 19.7.2018 passed by the Trial Court in Civil Suit No.19A/2017, the matter is remanded back to the Trial Court to decide the application filed under Order 39 Rule 1 and 2 of CPC afresh after considering the documents as well as the written statements which have already been filed before it. It is further directed that till the final disposal of the application filed under Order 39 Rule 1 and 2 of CPC by the Trial Court, the petitioner shall not interfere with the peaceful possession of the respondents No.1 and 2 as directed by the Appellate Court. It is made clear that this interim arrangement made by this Court is purely interim in nature and the Trial Court must decide the application filed under Order 39 Rule 1 and 2 of CPC strictly on the basis of the documents as well as pleadings of the parties available on record without getting prejudiced by the interim arrangement made by this Court.

With aforesaid observations, the petition succeeds and is hereby allowed.