Shanti Devi vs Civil Judge (JD)

R.S. Chauhan, J.—Since the learned members of the Bar are abstaining from work, Mr. Raj Kumar Jain, petitioner No. 2 and Mr. Pramod Kumar Jain, the respondent No. 2, have appeared before this Court to argue the case.

The petitioners have challenged the order dated 22.9.2012 passed by the Civil Judge (Jr. Division) and Judicial Magistrate No. 1, Alwar, whereby the learned Magistrate has dismissed an application filed by the petitioner u/s 151 CPC.

It is the case of the petitioners that they had filed a civil suit for permanent and mandatory injunction against the respondent No. 2. By order dated 30.7.2011, the learned Magistrate had directed both the parties to maintain status quo with regard to the property in dispute. However, despite status quo order, allegedly the respondent No. 2 started construction and has raised construction on the ground floor and the first floor, thereby closing windows, spouts and balconies belonging to the petitioners. Hence, the petitioners moved an application u/s 151 CPC for restoration of the status quo ante. By order dated 22.9.2012, the learned Magistrate dismissed the said application. However, the petitioners have frankly conceded that the application filed by him under Order 39 Rule 2-A CPC is still pending.

Mr. Raj Kumar Jain petitioner in person, has pleaded that in order to substantiate his plea, that the respondent No. 2 was violating the status quo order, he had submitted photographs showing the position of the property in dispute prior to the order of status quo, and subsequent thereto. However, the learned Magistrate has dismissed his application without paying any heed to the documentary evidence produced by him. Thus, the impugned order deserves to be set aside.;

On the other hand, Mr. Pramod Kumar Jain, the respondent No. 2 in person, has pleaded that till it is proven by evidence that construction has been raised subsequent to the passing of the status quo order, the learned Magistrate was certainly justified in dismissing the application. For, according to the respondent No. 2, he has not raised any construction subsequent to the passing of the said order.

Heard both the parties and perused the impugned order.

It is, indeed, trite to state that there is a difference between making of a statement, and proof thereof. Although, the petitioners have alleged that the respondent No. 2 has violated the status quo order, but they have yet to prove the same. Merely by producing certain photographs, which have yet to be proven during the course of trial, the petitioners have not substantiated their case with regard to violation of status quo order. Therefore, the learned Magistrate is certainly justified in concluding that an issue whether there is violation of status quo order or not is a matter of evidence. Further, the learned Magistrate is equally justified in concluding that since the contempt petition is still pending before the court, any observation made by him in an application filed u/s 151 CPC may adversely affect the said petition. Therefore, he refrains from expressing any opinion. Such a stand of the learned Magistrate is well justified. Hence, this Court does not find any illegality or perversity in the impugned order.

For the reasons stated above, the petition is devoid of any merit. It is, hereby, dismissed. The stay application also stands dismissed.