Sharif Ahmed vs Shahid & Others

Sharad Kumar Sharma, J

The plaintiff, who is the petitioner in the present writ petition, has filed a Suit No. 62 of 2003 'Sharif vs. Shahid & Others', wherein, in relation to the property lying in Khasra No. 794/2 having an area of 0.065 hectares situated in village Dhakrani, Pargana Pachwa, Tehsil Viaksnagar, District Dehradun, which he claims to be the sankramaniya bhumidhar, of the said land, had instituted the Suit for grant of a decree of permanent injunction, as against the defendants/respondents. It is to the effect that by a decree of permanent injunction they may be restrained from interfering over the property in question. Simultaneously while the Suit was pending consideration before the Civil Court various amendments were carried forwarded in the said Suit by the plaintiff in accordance with the developments, which has taken place during its pendency though at this stage Court is not concerned with the amendments carried before the Trial Court.

We are not concerned at this stage with regards to the intricacies involved in relation to the rival contentions and claim raised in the pleadings of the Suit in question. Presently, what we are concerned in the present writ petition is that before the learned Trial Court when the Suit itself was pending after being instituted on 10.03.2003 the learned Trial Court has granted an injunction under Order 39 Rule 1/2 of Code of Civil Procedure in favour of the plaintiff on 25.03.2003, wherein, while considering the application paper no.6C2 under Order 39 Rule 1 & 2 of the Code of Civil Procedure the Court has directed the parties to maintain the status quo qua the disputed property till 18.04.2003. The order is quoted herein below:

"25.3.2003 Case called out. Ld. Counsels for the parties are present. Case is filed for objection and disposal of 6C. Adjournment application moved by defendant. Opposed by counsel for the plaintiff. Application allowed. But parties are directed to maintain staus quo over the disputed property till date fixed. Finally on 18-4-03 for disposal of 6C2. Objection be filed within 15 days."

The plaintiff contending that despite of the interim injunction granted on 25.03.2003 the defendants have still continued to interfere in their possession, which they claimed, hence, consequently, they have filed an application invoking Order 39 Rule 2A on 04.04.2003, which was numbered as Miscellaneous Case No.39 of 2003 'Sharif Ahmed vs. Shahid'. The said application came up for consideration and the learned Trial Court, and it had passed an order on 11.12.2013 holding thereof that the plaintiff has failed to establish that there was an interference made despite of grant of status quo order by the Court and consequently the application under Order 39 Rule 2A was dismissed with a cost by the Trial Court on 11.12.2013. As against the dismissal of an application under Order 39 Rule 2A of the CPC there is a provision of appeal contemplated under Order 43 Rule 1(r) of the CPC.

Invoking the said provision the petitioner has preferred the Miscellaneous Appeal before the District Judge, Dehradun on 11.02.2014, contending thereof that the plaintiffs may be summoned in person and they may be punished for the deliberate violation of the interim injunction order of status quo as granted in their favour and the order of rejecting their application under Order 39 Rule 2A of order dated 11.12.2013 may be set aside.

5 The Appeal came up for consideration before the Additional District Judge, Vikas Nagar, Dehradun, which was ultimately registered as Miscellaneous Appeal No. 32 of 2015, and the same has been dismissed by virtue of the order dated 22.07.2016, which is impugned in the present writ petition at the behest of the plaintiff petitioner, wherein, he has sought for quashing of the orders dated 22.07.2016 as well as 11.12.2013 as passed by the courts below while considering the application under Order 39 Rule 2A had rejected the same concurrently.

What would be relevant to point out at this juncture, that at this stage when this writ petition is being taken up for consideration and while scrutinizing the Appellate Court's order dated 22.07.2016, it has been pointed out by the respondents' counsel by making reference to paragraph 14 of the Appellate Court's judgment, which is quoted hereunder:

"14. यहां पर यह भी विदित है कि इस मामले से सम्बन्धित मूलवाद संख्या-62/2003 में पारित निर्णय दिनांकित 19.3.2016 की सत्यप्रति कागज संख्या-40सी1 दाखिल की गयी है, जिसके अवलोकन से विदित है कि उपरोक्त वाद में अवर न्यायालय द्वारा वाद बिन्दु संख्या-9, जो इस प्रकार सृजित था कि "क्या दौरान वाद विचारण प्रतिवादीगण द्वारा विवादित भूमि के एक भाग पर 8ग्10 फुट की झोपड़ी का निर्माण किया गया है? यदि हां, तो असर"? का निस्तारण करते हुये वाद बिन्दु संख्या-9 वादी के विरूद्ध निर्णीत किया गया है तथा यह पाया है कि प्रत्यर्थीगण द्वारा विवादित भूमि पर दौरान वाद कोई झोपड़ी का निर्माण नहीं किया गया है।"

This finding is to the effect that during the pendency of the Miscellaneous Appeal No. 32 of 2015 'Sharif Ahmed vs. Shahid & Others' the principal Suit being Suit No. 62 of 2003 'Sharif vs. Shahid & Others' itself has been decided by the judgment and decree dated 19.03.2016 and the copy of the said document was placed on record by way of paper no. 40C1 before the learned Appellate Court, which was dealing with the Miscellaneous Appeal preferred under Order 43 Rule 1(r) of the Code of Civil Procedure arising out of rejection of application under Order 39 Rule 2A.

On account of the fact that the Suit in itself stood decided even prior to the decision being rendered in the Miscellaneous Appeal, this Court is of the view that no fruitful purpose would be met with in adjudicating the question pertaining to the non-compliance of an order of injunction by invoking Order 39 Rule 2A. For the reason being that no lis after the decision of the Suit dated 19.03.2016 is left to be adjudicated until and unless the said judgment has been put to challenge in an Appeal or the same is pending consideration.

But this Court cannot resist itself from dealing with the impact of injunction as granted by the Trial Court in favour of the plaintiff by an order dated 25.03.2003 in the nature of 'status quo'. Normally the Courts are facing a situation that those cases where the circumstances arises that the Court passes an interim order on status quo, it becomes a very peculiar situation to interpret as to what was the actual situation prevailing of the property in dispute on the date when the interim injunction of the nature of status quo was passed by the Court, because this Court is of the view that for the purposes of interpreting the nature of order of status quo would only relate to the status of the property prevailing on the date of passing of the order, which is still a very intricate and dicey question, which could only be decided by leading a vivid evidence as to what was the actual position of the property at the time when the injunction order was passed and at the time when the said order is said to have been violated upto what extent and upto what nature.

In such an eventuality, in the absence of there being any facts established pertaining to the status of the property, which was prevailing at the time when the order was passed or at the time it was alleged to be violated until and unless it is settled by the proceedings by the parties by leading evidence on implications of Order 39 Rule 2A, should normally be not invoked until and unless the parties succeeds in establishing the status of the property and its subsequent violation after the grant of injunction order.

This Court in that view, that as the matter finds that since the Suit itself has been decided on merits, no lis as such arisen under Order 39 Rule 2A, which remains to be decided and consequently, the writ petition fails and is dismissed accordingly.