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2009 DIGILAW 585 (AP)

Khadeer Khan v. Omer Khan

2009-08-25

L.NARASIMHA REDDY

body2009
Judgment : The respondent filed O.S.No.365 of 2006 in the Court of III Senior Civil Judge, City Civil Court, Secunderabad, against the appellant and two others, for the relief of partition and separate possession of suit schedule property comprised in three schedules. He has also filed I.A.No.898 of 2006 under Order XXXIX Rules 1 and 2 CPC against the appellant alone, with a prayer to restrain him from alienating an item of property in schedule III admeasuring Acs.5.00 at Jawaharnagar. An order of ad interim injunction was passed on 12.06.2006. The trial Court made the same absolute on 08.03.2007. Alleging that the appellant has violated the order of injunction, the respondent filed I.A.No.218 of 2007 before XIII Additional Senior Civil Judge (FTC), City Civil Court, Secunderabad, under Order XXXIX Rule 2-A CPC with a prayer to send the appellant herein to civil prison. It was alleged that despite the order of temporary injunction, the appellant alienated part of the land by entrusting it to development to third parties. The appellant filed a counter affidavit denying the allegations made against him. He pleaded that long before filing the suit, he executed an agreement of sale on 14.02.2005. He has furnished the particulars of the persons, in whose favour the documents were executed. He further pleaded that land in Survey No.314, property in Schedule III, was not available with him as on the date of filing of the suit. Through its order, dated 06.07.2009, the trial Court allowed the I.A. and directed that the appellant be committed to the Civil Prison for one month. The same is challenged in this CMA. Sri Nazir Ahmed Khan, learned counsel for the appellant submits that the order passed by the trial Court cannot be sustained on facts or in law. He further submits that except making a vague and general allegation, the respondent did not substantiate the plea as to alienation and that the civil liberty of the appellant was meddled with, on the basis of such unfounded allegations. He contends that no oral evidence was adduced, much less, any documents through which the alienation is said to have taken place, have been filed. He also submits that the trial Court was mostly impressed by the photographs marked as Exs.P.2 to P.12 and an encumbrance certificate marked as Ex.P.1. He contends that no oral evidence was adduced, much less, any documents through which the alienation is said to have taken place, have been filed. He also submits that the trial Court was mostly impressed by the photographs marked as Exs.P.2 to P.12 and an encumbrance certificate marked as Ex.P.1. Sri Chandrasekhara Reddy, learned counsel for the respondent, on the other hand, submits that the appellant was very much aware of the order of temporary injunction and still several sale deeds came to be executed, may be, by the General Power of Attorney. Learned counsel submits that the sale deeds executed by the GPA can be said to have been executed by the petitioner himself and no exception can be taken to the order under appeal. It is rather unfortunate that the trial Court has dealt with an application filed under Rule 2-A of Order XXXIX CPC in a casual manner, as though it is an application for adjournment. It did not even realize the fact that the order passed therein is going to result in imprisonment of an individual. The respondent filed I.A.No.898 of 2006 under Order XXXIX Rule 1 CPC only against the appellant herein. An order of ad interim injunction was passed on 12.06.2006. The collusive nature of proceedings are evident from the fact that though it was mentioned that defendants 1 and 2 are not necessary parties to that, the first defendant filed a counter supporting the I.A. This became handy for the trial Court to allow the I.A. itself, even while setting the appellant ex parte. Before a person is sent to civil prison, the trial Court must be satisfied that a foolproof case is made out against such person. Invariably, oral and documentary evidence must be recorded and specific finding must be recorded on the basis of the evidence. The allegation against the appellant is that he has violated the order of temporary injunction granted by the trial Court on 12.06.2006. It was as regards alienation of properties. The only occasion to find fault with the appellant would have been, when it is established that he has executed specified sale deeds or other deeds of transfer, in contravention of the order of injunction. It was as regards alienation of properties. The only occasion to find fault with the appellant would have been, when it is established that he has executed specified sale deeds or other deeds of transfer, in contravention of the order of injunction. The relevant averment in the affidavit filed in support of I.A.No.218 of 2007 reads as under: “I submit that the schedule property is divided into plots; roads are being laid and a Board has also been displayed at the site – “Plot Nos.39 and 52 not for sale, mortgaged to HUDA”. Thus the property is being encumbered or alienated. On further enquiries, I came to know that the property has been entrusted to one Shri Ramdhari Agarwal, Shop No.3, Plot No.7, Srinagar Colony, Trymulgherry, Secunderabad. I have also come to know from enquiries made from Shri Ramdhari Agarwal that the respondent/defendant-3 has entrusted the property to Shri Ramdhari Agarwal for development and sale. I submit that the action on the part of the respondent/defendant-3 is in gross violation of the orders passed by this Hon’ble Court. I am herewith filing photographs with negatives.” It is evident that no reference is made either to any sale deed or other deed of transfer. The allegation was as vague as it could be. It was only mentioned that the enquiries made by the respondent revealed that the property has been “entrusted for development”. No oral evidence was recorded by the trial Court. The documentary evidence comprised of the encumbrance certificate and about a dozen photographs. The trial Court proceeded to observe that the sale agreement-cum-GPA executed by the appellant on 14.02.2005 does not confer any title. Still, inference was drawn on the basis of Ex.P.1 that the sale deeds were executed on 05.03.2008 and 07.07.2008. Neither the sale deed was made as part of record, nor any one connected with the execution was examined as a witness. Before an order was passed directing committal of the appellant to civil prison, utmost care ought to have been taken. This Court takes a serious exception to the way in which the trial Court dealt with the I.A. The CMA is allowed, with costs of Rs.3,000/- (Rupees Three Thousand only), which the respondent shall pay to the appellant, within a period of four (4) weeks. The trial Court shall treat the said order as to payment of costs, as a decree by itself. The trial Court shall treat the said order as to payment of costs, as a decree by itself. It shall proceed with the trial of the suit, only after that amount is paid.