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Madhya Pradesh High Court · body

2009 DIGILAW 603 (MP)

Seema Dubey v. Prakash Dhirawani

2009-05-05

P.K.JAISWAL

body2009
ORDER 1. This application under Order 39 rule 2A, CPC has been filed by the applicant-plaintiff on the ground that non-applicant-defendant No.2 in spite of status-quo order dated 9.8.2004 passed in MA No.2007/2004 constructed one room, one Varandah, three roads, pipeline and installed one electric pole over the property in dispute in the month of January, 2005 and disobeyed the status-quo order passed by this Court and, therefore, he be sent to civil prison for a period of three months and his property be also attached. 2. Brief facts of the case are that an area of 8.05 acres of KhasraNo.286 and 270 of Mouza Tihari, Settlement No.223, PC No.23, Tahsil and District Jabalpur was owned by George Hookins. Husband of applicant and one Sanjay Bhatia entered into an agreement for purchase of the said land on 17.5.1999. On 2.11.2000 George Hookins expired. After the death of George Hookins the applicant entered into an agreement for sale dated 26.1.2001 for purchase of the said land for a consideration of Rs.16.51 lacs. On 27.7.2001 an area of six acres out of total area of 8.50 acres has been transferred by the legal heirs of late George Hookings in favour of Dr. Rajesh Dhirawani, Dinesh Dhirawani and Prakash Dhirawani. 3. According to applicant, she on 26.1.2001 entered into an agreement for purchase of an area of 2.63 acre of Khasra No.286 and 270 situated at Village Tilhari, Tahsil and District Jabalpur. On 28.2.2002 defendant No.1 Smt. Jeen Hookins widow of late George Hookins executed a sale-deed in favour of non-applicant No.1-defendant No.2 for a consideration of Rs.11,83,500/-. The applicant challenged the said action by filing a suit on 8.1.2004 for specifics performance of contract, to declare the sale-deed dated 28.2.2002 in respect of an area 2.63 acre as null and void and also claimed a decree of permanent injunction, restraining the non-applicant from alienating and transferring the property in dispute and also parting of possession in favour of any other person. The applicant also filed an application under Order 39 rules 1 and 2, CPC for temporary injunction and prayed that the non-applicant be restrained from alienating and transferring the property in dispute and also from changing the nature of the property in dispute, parting with the possession in favour of any other person during pendency of the suit. The applicant also filed an application under Order 39 rules 1 and 2, CPC for temporary injunction and prayed that the non-applicant be restrained from alienating and transferring the property in dispute and also from changing the nature of the property in dispute, parting with the possession in favour of any other person during pendency of the suit. The property over which injunction was being sought is 2.63 acres of land comprising Khasra No.286 and 270, PC No.23, Settlement No.231 of Mouza Tilhari, Tahsil and District Jabalpur. 4. The trial Court vide order dated 26.6.2004 decided the application for grant of temporary injunction and passed the following order which reads as under : "8. It is true that an agreement to sale itself, does not create an interest in the property. On perusal of the xerox copies of the documents, I come to the conclusion that, at this stage the claim of the plaintiff cannot be denied. The documents reveal that there was an agreement between the plaintiff and vendor. The case pleaded by the plaintiff does not appear to be false, vexatious, ex facie. There are some serious questions to be tried. But it can also not be denied that the defendants have purchased the disputed land on spending huge amount, therefore, their rights are also to be protected. Therefore, the vendee may be ordered to furnish undertaking with security so that on success in suit, plaintiffs may be compensated adequately. 9. Consequently, in the interest of justice it is ordered that if the defendant No.2 furnishes an undertaking (with surety of Rs.10,00,000/with the effect that if on conclusion of the trial it is found that the plaintiff is entitled for a decree, as sought, he shall pay an amount of Rs.10,00,000/- to the plaintiff, against the consideration so received, then they will have a right to alienate it." 5. The applicant challenged the said order by filing an appeal under Order 43 rule l(r) of CPC. During pendency of Miscellaneous Appeal No.2007/2004, M(C)P No.3112/2004 was filed on 12.7.2004 without supplying the copy to the other side and prayed that the respondent may kindly be restrained from alienating the suit property, parting with possession and may also be directed to maintain status-quo in respect to construction over the property in dispute. During pendency of Miscellaneous Appeal No.2007/2004, M(C)P No.3112/2004 was filed on 12.7.2004 without supplying the copy to the other side and prayed that the respondent may kindly be restrained from alienating the suit property, parting with possession and may also be directed to maintain status-quo in respect to construction over the property in dispute. This Court vide order dated 9.8.2004 issued notice on M(C)P No.3112/2004, an application under section 151, CPC and in the meanwhile, directed the respondents to maintain status-quo about the suit property. 6. It is alleged that non-applicant/contemnor after passing of the interim order dated 9.8.2004 constructed one room, one verandah, three roads, pipe lines and also installed one electric pole in the month of January, 2005 and, therefore, they disobeyed the order dated 9.8.2004 and, therefore, his property be attached and he be sent to civil prison. Paras 6 and 7 of the contempt petition reads as under : "6. That, the respondent/contemnor after passing of the interim order by this Hon'ble Court, erected one room and one verandah over the property in dispute. He has also constructed 3 roads over the property in dispute and laid a pipeline. He has also installed electric poles. All these developments have been made by him in January, 2005. The applicant had been to the police to lodge the report but the same was not entertained because of the influence exercised by the non-applicant and his friend Shri Anchal Sonkar, who is presently a MLA and Ex-Minister; copy of the photographs are filed with this application as Annexure C-8 in order to show that the developments, in spite of stay granted by this Hon'ble Court, has been done by the non-applicant. The applicant had also lodged a report on 2.2.2005 to the Superintendent of Police and also on 22.3.2005; a copy of the same is filed as Annexure C-9. It will not be out of place to mention here that no security as ordered by the trial Court has ever been furnished. The non-applicant has taken the law in his own hands and he has committed repeatedly the contempt of this Hon'ble Court. It will not be out of place to mention here that no security as ordered by the trial Court has ever been furnished. The non-applicant has taken the law in his own hands and he has committed repeatedly the contempt of this Hon'ble Court. It is further submitted that the non-applicant was insisting constantly the applicant and her husband to get the proceedings withdrawn filed by Narendra Khatri, Gyan Devi, Smt. Kiran Arora and Subhash Arora and the same has been withdrawn by putting a pressure on such persons by the non-applicant on 14.2.2002 and 21.2.2002. Copy of the order-sheet in respect of withdrawal of such proceedings are filed as Annexure C-10. It will not be out of place to mention here that Surendra Khatri was not having any valid power of attorney to withdraw the proceedings on behalf of such persons. Such persons may initiate the proceedings. The husband of the petitioner was one of the defendants in that case. 7. That the respondent has deliberately committed the breach of the order passed by this Hon'ble Court, therefore, he has made himself responsible for punishment as contemplated under Order XXXIX rule 2A of CPC. His property may be attached and he may also be sent to civil prison for a period of 3 months." 7. The non-applicant immediately after receipt of notice filed his reply on 19.7.2006 and contended that the order of status-quo dated 9.8.2004 was never communicated to him. The non-applicant for the first time came to know about the filing of Miscellaneous Appeal No.2007/2004 on 14.8.2005. It is admitted by the non-applicant that civil suit is pending in trial Court and vide order dated 26.6.2004, the trial Court decided injunction application. Thereafter he on 27.7.2004 filed his written statement before the trial Court and as per para 13 of the written statement the sale-deed was executed in his favour on 28.2.2002 and the possession of the suit property was delivered to him. He is in physical possession of the suit property. After execution of sale-deed he constructed two rooms over the suit land. The suit land as well as the adjoining land is being looked after by the non-applicant. He appointed one Chowkidar Jean Williams who is living in the room constructed on the other land and the bore well and electricity connection is also situated on these two lands. After execution of sale-deed he constructed two rooms over the suit land. The suit land as well as the adjoining land is being looked after by the non-applicant. He appointed one Chowkidar Jean Williams who is living in the room constructed on the other land and the bore well and electricity connection is also situated on these two lands. He denied that the plaintiff is in possession of the suit land and the order of status-quo dated 9.8.2004 passed by this Court has not been disobeyed by him. He denied the photographs attached along with the contempt petition and contended that he gives the highest regard of the rule of law and has not disobeyed the order of this Court. 8. The applicant in support of the averments made in paras 8 and 9 of the contempt petition filed photograph vide Annexure C-8. From these photographs it cannot be said that order dated 9.8.2004 has been violated by the non-applicant. The non-applicant in his written statement very categorically stated about the construction made by him. He filed the written statement on 27.7.204, i.e., prior to the date of passing of status-quo order dated 9.8.2004. In respect of knowledge of order dated 9.8.2004 prior to 14.8.2005 no counter affidavit has been filed by the applicant to prove that immediately after passing of status-quo order dated 9.8.2004, he communicated the same to the non-applicant or non-applicant prior to 14.8.2005 came to know about the pendency of miscellaneous appeal and interim order passed by this Court on 9.8.2004. In para 13 of the written statement non-applicant made certain averments regarding construction over the suit property which reads as under : "13. The relief claimed by the plaintiff to cancel the sale-deed dated 28.2.2002 (Twenty eight February Zero two) is not available to her. The relief of permanent injunction is also not available to the plaintiff. It is denied that the plaintiff is in possession of the suit land. This defendant is in actual physical possession of the suit land. This defendant has already constructed two (2) rooms on this land. This land along with the other land is being looked after by this defendant. His chowkidar Jeny Williams is living in the room constructed on the other land and the bore-well and electricity connection is also situated on these two land. This defendant has already constructed two (2) rooms on this land. This land along with the other land is being looked after by this defendant. His chowkidar Jeny Williams is living in the room constructed on the other land and the bore-well and electricity connection is also situated on these two land. Therefore, the plaintiff is not entitled to any relief of permanent injunction." 9. On 22.8.2006 applicant filed an application for taking additional documents on record which are photographs and certificate issued by photographer on 6.8.2006 to show that non-applicant is continuously flouting the order of status-quo passed by this Court on 9.8.2004. On 16.1.2007 again an application for taking additional documents on record was filed by applicant. Along with this application she filed copy of sale-deed dated 18.3.2005, 3.3.2005, 25.7.2005, 29.4.2005, 20.4.2005, 4.4.2005 and 28.7.2005. Admittedly, these sale-deeds are prior to 14.8.2005. It is also not in dispute that much prior to the filing a suit, sale-deed in respect of an area of six acres was executed by the vendor on 27.7.200 1 in favour of Dr. Rajesh Dhirawani, Dinesh Dhirawani and Prakash Dhirawani. Later on the vendor on 28.2.2002 executed a sale-deed in favour of non-applicant only in respect of area of 2.63 acres. The sale-deeds which are filed by the applicants are executed by the attorney holder of Dr. Rajesh Dhirawani, Dinesh Dhirawani and Prakash Dhirawani. From the sale-deeds it cannot be identified that the land which has been transferred by the vendor is part of the disputed area of 2.63 acres or in regard of an area of 6.00 acres and all the sale-deeds are prior to 14.8.2005 and, therefore, from the above pleadings it cannot be said that non-applicant violated the status-quo order passed by this Court on 9.8.2004. 10. It is well settled that once an order has been passed which the Court has jurisdiction to pass, it is duty of all persons to obey the same as all along with as it exists. The provisions of Order 29 rule 2A, CPC are quasi-criminal in nature and since a person violating the injunction order passed by the Civil Court or otherwise disregarding the same is liable to be detained in the civil prison, therefore, the aforesaid provisions of disregarding of injunction order has to be proved beyond all reasonable doubts by the persons complaining of such violation. The standard of proof requires in such a case would, no doubt, be as it requires in a criminal case, since the said act of violator itself entails his detention in civil imprisonment. The applicant failed to prove the violation of status-quo order dated 9.8.2004 by legally acceptable evidence. From the pleadings made in the application under Order 39 rule 2A of CPC and the documents annexed therein and filed along with IA No.798612006 and IA No.8001 2007, it cannot be said that non-applicant had knowledge about the injunction order dated 9.8.2004 and he know ingly violated the status-quo order by executing the sale-deeds which are on record. Violaltion of injunction order will not invalidate the sale-deeds or render it nullity although the vendor may be liable to penal consequences for violating the injunction order. Here the applicant by cogent evidence failed to prove beyond all reasonable doubts that non-applicant has alienated the suit property. The sale-deeds are jointly executed by the vendor through their attorney and they had no knowledge about the status-quo order nor applicant after passing of the status-quo order served the copy of the same to them. The applicant by cogent evidence failed to prove that the so called construction was made in January, 2005. During pendency of this application, this Court vide order dated 4.4.2005 allowed the application for temporary injunction filed by applicant and the prayer made therein. This Court further directed the Court below to decide the suit as early as possible preferably within one year. At present, the pleadings of the applicant and the documents filed in support thereof, no case for disobedience of order dated 9.8.2004 is made out nor it can be said that the alleged construction was made in the month of January, 2005. The injunction order is in favour of applicant and, therefore, during pendency of the suit in case if it is found that non-applicant violated the order of this Court dated 4.4.2005, she can file appropriate application under Order 39 rule 2A, CPC in accordance with law. 11. For the above discussions, I am of the considered view that in absence of the knowledge of order dated 9.8.2004 to the non-applicant prior to 14.8.2005, it cannot be said that he intentionally or knowingly violated the status-quo order passed by this Court from any angle. 11. For the above discussions, I am of the considered view that in absence of the knowledge of order dated 9.8.2004 to the non-applicant prior to 14.8.2005, it cannot be said that he intentionally or knowingly violated the status-quo order passed by this Court from any angle. The applicant has failed to prove the violation beyond all reasonable doubts and, therefore, the application filed by the applicant has no merit and is hereby dismissed with cost. Rule-nisi is discharged. Counsel fee Rs.3,000/- if pre-certified.