Vikram Singh & Anr vs Rattan Lal & Ors

Virender Singh, J

Petitioners have filed the present petition, under Article 227 of the Constitution of India, for quashing and setting aside the order dated 05.06.2024, passed by the Court of learned Senior Civil Judge, Court No.1, Ghumarwin, District Bilaspur, H.P. (hereinafter referred to as the ‘trial Court’), in CMA No.202-6 of 2024 in Civil Suit No.191-1/2019, titled as ‘Fullan Devi Vs. Vikram Singh & Anr.’.

Brief facts, leading to filing of the present petition, before this Court, are that the suit for declaration was filed by the present petitioners, before the learned trial Court. Along with the said suit, application, under Order XXXIX Rules 1 and 2 read with Section 151 of CPC, had also been filed.

After securing the presence of the defendants (respondents herein), on 29.11.2019, the learned trial Court has passed the following order:-

“29.11.2019

Present: Applicant no.1 (Vikram Singh), present in person.

Sh. Satpal Singh, Advocate for the applicants.

Respondents No.1, 5 to 7 present in person.

Summons issued to respondents no.2, 9 & 11 not received back either served or unserved for today. Summons issued to respondents no.3 & 4 received back unserved for want of correct addresses. Summons issued to respondent no.8 received back with the report that she refused to receive summons. Respondent no.8 is not present. Summons issued to respondent no.10 (Sheela), received back duly served, but despite of that, she is not present. Be awaited and called after respite.

Sd/-

(Vikrant Kaundal)

Senior Civil Judge, Ghumarwin,

District Bilaspur, H.P.

Taken up again after respite.

29.11.2019

Present: As above.

Be called after lunch.

Sd/-

(Vikrant Kaundal)

Senior Civil Judge, Ghumarwin,

District Bilaspur, H.P.

Taken up again after lunch.

29.11.2019

Present: As above.

Be called after respite.

Sd/-

(Vikrant Kaundal)

Senior Civil Judge, Ghumarwin,

District Bilaspur, H.P.

Taken up again after respite.

29.11.2019

Present: As above.

Case called repeatedly after intervals during the whole day and awaited for substantial time. For non-appearance of the respondents no.8 & 10 despite being served for today, consequently, the respondents no.8 & 10 are hereby proceeded against ex parte.

On filing CA along with PF within 10 days of the respondents no.3 & 4, they along with respondents no.2, 9 & 11 be summoned for 28.02.2020.

Summons be also issued to respondents no.2, 9 & 11, on old PF for the date fixed.

In the meantime, reply be also filed by the appearing respondents on the next date of hearing. Considering the submissions made by the applicant’s counsel and after hearing the appearing respondents and considering the nature of the application and submissions clubbed with the pleadings, till further orders, the applicants as well as served respondents are directed to maintain status quo qua nature, possession and cutting trees over the suit land.

Sd/-

(Vikrant Kaundal)

Senior Civil Judge, Ghumarwin,

District Bilaspur, H.P.”

Thereafter, non-applicants/defendants No.1 and 2 have moved an application, under Section 151 of CPC, for implemention of order dated 29.11.2019. The said application has been allowed, by the learned trial Court, vide order dated 05.06.2024. Relevant portion of the order dated 05.06.2024 is reproduced, as under:-

“3. …………as such, the application is liable to be allowed accordingly allowed and SHO PS Ghumarwin is directed to visit the spot and render assistance to the applicants for the implementation of order dated 29.11.2019. Copy of the order dated 29.11.2019 be also sent to the concerned SHO for implementing the stay order. Police can take assistance of the revenue official for ascertaining the suit land on the spot. Police report be called on dated 14.08.2024. Further, the locks of the house of the applicant be restored alongwith the house hold articles which were thrown out of the house be kept as earlier. Application stands disposed off. After due completion and registration it be tagged with the main case file. Report alongwith main case file be put up on the date so fixed.”

Feeling aggrieved from the aforesaid order, the present petition has been filed, on the ground that the learned trial Court has misread and misappreciated the pleadings, as well as, the documents on record, as, specific stand has been taken by the petitioners, in the reply to the application that by way of the Will (Annexure P-4) and the family arrangement (Annexure P-6), no room, in the house, in question, for which, respondent No.2 was seeking police help, had ever been given to the husband of applicant, namely Sunder Singh.

It is the further case of the petitioners that there was no order of restraint passed on 29.11.2019, which was sought to be implemented, by the applicant (respondent No.2). As such, order dated 29.11.2019, as prayed by the applicant, could not be implemented.

According to the petitioners, the applicant (respondent No.2) had levelled the bald allegations in the application and sought the police help for implementation of the order.

On the basis of above facts, a prayer has been made to allow the petition, by quashing and setting aside the order, impugned herein.

When, put to notice, the applicant, who has been impleaded as respondent No.2, has not opted to put appearance or to contest the petition. Accordingly, vide order dated 25.11.2024, respondent No.2 has been ordered to be proceeded against ex parte.

In this case, on 29.11.2019, the learned trial Court had directed the parties to maintain status quo qua nature, possession and cutting of trees, over the suit land, whereas, in the written statement, filed by defendants No.2 to 4, photocopy of which has been annexed as Annexure P-2, with the petition, no averment has been made, qua the fact that defendant No.2 (applicant) had kept her household property/articles in two rooms.

When, this material fact has not been mentioned in the written statement, then, without ascertaining the possession regarding the property in dispute, as on 29.11.2019 i.e. when, the status quo order was passed, the learned trial Court has exceeded its jurisdiction, while exercising the powers, under Section 151 of CPC.

No doubt, once order has been passed, then, it was obligatory, upon the learned trial Court, to get the same implemented, but, before implementing the same, at least, there should be some prima facie discussion about the situation, which exists on the spot, on 29.11.2019, when, the status quo order was passed, by the learned trial Court.

Under the garb of the application, under Section 151 of CPC, for getting the order implemented, with the help of police, a new case cannot be introduced by either party to the lis.

The controversy, involved in the present case, should not have been decided, by the learned trial Court, while deciding the application, under Section 151 of CPC, as, the said controversy can only be decided after the parties to the lis shall lead their evidence, before it. Even otherwise, nothing has been mentioned in the impugned order, with regard to the factual position, existing on the spot.

In such situation, this Court is of the view that the learned trial Court has exceeded its jurisdiction, while exercising the powers, under Section 151 of CPC.

Accordingly, the present petition is allowed and the order dated 05.06.2024, passed by the learned trial Court, is set aside, with a direction to the learned trial Court to decide the application, under Section 151 of CPC, afresh, in view of the observations, as made hereinabove.

Pending miscellaneous application(s), if any, shall also stand disposed of.