Shiv Mangal Singh v. Panna Lal & Ors.

1. Petitioner challenges the order dated 09.05.2019 in CS NO. 1977/18 titled as “Shiv Mangal Singh vs. Panna Lal & Ors.”, whereby an application under Section XXXIX Rule 2(A) of the CPC, 1908 filed by the petitioner/ plaintiff for initiating contempt proceedings against the respondent/ defendant, was dismissed.

2. It is the admitted case of the parties that the petitioner and the respondents are brothers and the subject matter of the suit property is the borne of contention between the brothers.

3. Learned counsel appearing for the petitioner submits that by order dated 05.11.2018, the learned Trial Court had passed stay order directing the parties to maintain the said suit property as obtaining on that particular day and not to make any changes in the same till the next date of hearing.

4. Learned counsel submits that surreptitiously and without the knowledge of the petitioner/ plaintiff, the respondent/ defendant had unlawfully taken over the possession of the first floor and placed their utensils to show their possession over the said property flouting the impugned order dated 05.11.2018.

5. Learned counsel submits that in pursuance thereto, an application under Order XXXIX Rule 2(A) of CPC, 1908 for willful violation of the order dated 05.11.2018 was filed. Learned counsel submits that vide the impugned order, the said application was dismissed.

6. Learned counsel for the respondent/ defendant draws attention of this Court to order dated 09.05.2019, whereby the learned Trial Court while dismissing the application under Order XXXIX Rule 2 (A) in the penultimate paragraph has made observations, which are literally in the nature of findings recorded by the learned Trial Court.

7. Learned counsel submits that the said observations would prejudice his case during trial. Learned counsel submits that the present petition has been filed challenging the said observation to that extent.

8. Per contra, learned counsel appearing for the respondent/ defendant brings attention of this Court to the second para at page 33 of the present petition, which is the order dated 09.05.2019 to submit that the learned Trial Court has categorically observed the documents placed on record by the respondent i.e. Aadhaar Card, Voter card ID, disability certificate and Ration Card etc. to show that, prima facie, the respondent has been able to show at least his residence in the subject suit property.

9. On that basis, learned counsel for the respondent/ defendant submits that the application under Order XXXIX Rule 2(A) was dismissed for the reason that the learned Trial Court did not find any willful violation of the status quo order.

10. This Court has considered the rival submissions, the impugned order as also the documents placed on record.

11. The scrutiny of the order dated 05.11.2018 brings to fore that there was no categorical finding, or an observation, against any of the parties as to who was in possession of which part of the property, except to say that both the parties were directed to maintain the status quo as obtaining on that particular day.

12. This Court is not considering the dismissal of the application under Order XXXIX Rule 2(A) on merits for the reason that there is nothing brought on record to show that the exercise of such jurisdiction by the learned Trial Court was one, which fell within the purview of the jurisdiction of this Court under Article 227 of the Constitution of India, in that, there is no judicial impropriety or procedural irregularity or that the learned Trial Court had acted with material irregularity while passing the impugned order.

13. A perusal of the impugned order also brings to fore the fact that the learned Trial Court has applied its mind to the facts as obtaining before it on 09.05.2018 and has passed an order which is in accordance with law, there could be no qualms so far as the said aspect is concerned. However, it is observed that the learned Trial Court in the penultimate paragraph at page 33 of the impugned order has noted the situation so far as the possession is concerned and recorded the same in a manner to give an impression, as if, the learned Trial Court has almost concluded the said issue in respect of the possession.

14. The said observation cannot withstand the judicial scrutiny at this stage of the proceedings, where trial is yet to commence.

15. In view of the aforesaid, it would be in the interest of justice, as also in accordance with the fairness of trial, that the observations of the learned Trial Court in penultimate para, is noted as under:- “I, therefore, believe the averments of the defendant that he was already in the possession of first floor on the date the status quo was ordered and no change has been made by the defendant in the suit property and therefore there is no flouting or willful disobedience of the orders of the court dated 05.11.2018. The application under order XXXIX of the plaintiff thereby stands dismissed. I further direct that status quo be maintained till further directions of this Court and defendant and plaintiff are directed not to make any changes in the status of the property and status of the possession of both the parties till further directions of the Court.”