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2011 DIGILAW 1768 (RAJ)

Sher Singh v. Ashok Kumar

2011-08-19

VINEET KOTHARI

body2011
Hon'ble Dr. KOTHARI, J.—This writ petition has been filed by the defendant Sher Singh being aggrieved of the order dated 31/5/2011 passed by the Addl. District Judge (Fast Track No.3), Jodhpur dismissing his appeal against the order dated 8/12/2010, whereby, the application of the defendant under Order 39 Rule 2-A read with Section 151 CPC was rejected by the learned trial court. 2. The circumstances giving rise to present writ petition in nutshell are that a suit for injunction was filed on 24/11/1990 by the plaintiff respondent Ashok Kumar against the present petitioner Sher Singh in which it was inter alia claimed that plot no.94-A in which he is living in a two storied house and when he started construction of staircase for first floor, the defendant interfered with the same and, therefore, plaintiff approached the Court with a case that he had applied for permission to raise said construction before the Municipal Authorities and defendant had no right to interfere with the same. On 5/8/1999, the learned trial court granted temporary injunction in favour of the plaintiff to the effect that the defendant Sher Singh will not interfere with the construction being raised by the plaintiff till it is completed and at the same time plaintiff was also directed to furnish an undertaking within 15 days that if he fails in the suit, he would remove the said disputed construction at his own cost. In an appeal filed by the defendant against the said order dated 5/8/1999, the appellate court vide order dated17/9/1999 modified the said temporary injunction while partly accepting the appeal of the defendant and directed for status quo to be be maintained by the parties. It was also observed in the order dated 17/9/1999 that since the plaintiff had already given an undertaking before the learned trial court that in case he fails in the main suit, he would remove the disputed construction of staircase, namely, two stairs and one platform (`Runa') at his own cost. It was also observed in the order dated 17/9/1999 that since the plaintiff had already given an undertaking before the learned trial court that in case he fails in the main suit, he would remove the disputed construction of staircase, namely, two stairs and one platform (`Runa') at his own cost. It appears from the order sheet dated 26/7/2000 of the court below that on an application filed before the learned trial court on 26/7/2000 itself, duly signed by the plaintiff, his counsel Shri Abdul Sattar and one Shri Shri Hari Shanker Shrimali, junior counsel of Shri Bheem Kant Vyas, Advocate as counsel for the defendant, the learned trial court, upon a compromise between the parties dismissed the suit itself as withdrawn (Page 47 of the paper book). It is also recorded in the order sheet that counsels of both the sides have produced a compromise in the spirit of `Lok Adalat', which was verified and accordingly the suit is dismissed as withdrawn. After 26/7/2000, an application was filed by the defendant through his advocate Mr. Bheem Kant Vyas on 18/8/2000, within one month of the previous order dated 26/7/2000 by which the suit was dismissed as withdrawn in view of compromise between the parties, claiming compliance of the undertaking furnished by the plaintiff in terms of order dated 5/8/1999 on the temporary injunction application that since suit has been dismissed, the plaintiff should remove the disputed construction within fifteen days of 26/7/2000. The said application was accepted by the learned trial court vide order dated 26/5/2001 (Annex.6) and plaintiff was asked to remove the disputed construction of two stairs and platform to the aforesaid extent in terms of undertaking dated 6/8/1999. Since the same was not done, the defendant Sher Singh moved an application under Order 39 Rule 2-A CPC vide Annex.7, which was replied to by the plaintiff and after hearing both sides counsels, the learned trial court dismissed the said application by order dated 8/12/2010 inter alia holding that the applicant defendant Sher Singh had failed to prove that said disputed construction had been raised by the plaintiff after furnishing the said undertaking in the learned trial court on 6/8/1999. The learned trial court also held that no evidence to this effect was produced by the defendant nor any independent witness was produced before the learned trial court. The learned trial court also held that no evidence to this effect was produced by the defendant nor any independent witness was produced before the learned trial court. The further appeal filed against the said order dated 8/12/2010 came to be dismissed by the learned appellate court on 31/5/2011 reiterating the same grounds as given by the learned trial court, which order is impugned in the present writ petition. 3. I have heard the learned counsel for the petitioner defendant, Mr. Suresh Shrimali at length and perused the record. 4. Learned counsel Mr. Suresh Shrimali vehemently urged that coordinate bench of this Court has already dismissed the revision petition No. 698/2001 filed by the plaintiff Ashok Kumar on 18/5/2005 (Annex.1), against the order dated 26.5.2001 in which inter alia it has also been held that Mr. Hari Shanker Shrimali, the concerned advocate, who purportedly appeared before the learned trial court on 26.7.2000 at the time of compromise between the parties, had no authority to do so and said coordinate bench has also held that in view thereof, the said compromise cannot be said to be a compromise in law and the plaintiff is bound to comply with the undertaking dated 6/8/1999 and is, therefore, bound to remove the disputed construction at his own cost. Learned counsel for the petitioner further submitted that even the application filed by the defendant under Order 41 Rule 27 CPC before the learned appellate court below was not decided and that vitiates the appellate order dated 31.5.2011. He relied upon the decision of Supreme Court in the case of Hakam Singh vs. State of Haryana & Ors. 2009(1) WLC (SC) 314 in this regard. He, therefore, submitted that the impugned order deserves to be set aside and proceedings u/Order 39 Rule 2-A deserves to be initiated against the plaintiff. 5. Having heard the learned counsel, this Court is of the opinion that the present writ petition is misconceived and deserves to be dismissed. The reasons are as follows. 6. He, therefore, submitted that the impugned order deserves to be set aside and proceedings u/Order 39 Rule 2-A deserves to be initiated against the plaintiff. 5. Having heard the learned counsel, this Court is of the opinion that the present writ petition is misconceived and deserves to be dismissed. The reasons are as follows. 6. Firstly, when the compromise was produced before the learned trial court on 26/7/2000, duly signed by the plaintiff and his counsel and on the other hand by one Shri Hari Shanker Shrimali, purportedly appearing as counsel for the defendant, and the learned trial court explaining the same to both the sides, verified the same and on the basis of said compromise dismissed the suit as withdrawn, no objection was raised either by the defendant or the said counsel. In the application Annex.4 moved before the learned trial court, the averment in the said application is that both the sides have entered into a compromise in the spirit of `Lok Adalat' and accordingly the plaintiff does not want to pursue his suit and may be permitted to withdraw the said suit. If the said person Mr. Hari Shanker Shrimali, Advocate who had no authority to appear as an advocate on behalf of defendant Sher Singh, the first available opportunity to the defendant was when he moved the application on 18/8/2000 after 22 days before the learned trial court under Section 151 CPC (page 129 of the paper book). The title of the said application is "Application under Section 151 CPC for compliance of the undertaking" It only states in para 1 that the suit filed before the trial court was dismissed on 26/7/2000. The said application does not make any allegation against Mr. Hari Shanker Shrimali, Advocate that he had no authority to appear on behalf of the defendant nor does it even say that the suit has been dismissed as withdrawn upon a compromise as recorded by the learned trial court in the order sheet dated 26/7/2000. It is said that Mr. Hari Shanker Shrimali is junior chamber mate of Mr. Bheem Kant Vyas, Advocate only, who filed later application on 18/8/2000 itself. It curiously claims compliance of the undertaking, which was given in the proceedings for temporary injunction in the main suit, which, without question, came to an end with the dismissal of the suit, by withdrawal on 26/7/2000. 7. Hari Shanker Shrimali is junior chamber mate of Mr. Bheem Kant Vyas, Advocate only, who filed later application on 18/8/2000 itself. It curiously claims compliance of the undertaking, which was given in the proceedings for temporary injunction in the main suit, which, without question, came to an end with the dismissal of the suit, by withdrawal on 26/7/2000. 7. Order 23 of the Code of Civil Procedure deals with the withdrawal of suit or abandonment of part of claim. It provides a procedure as to how the compromise has to be filed, verified and recorded. Order 23 Rule 3 proviso clearly provides that where it is alleged by one party & denied by the other party that an adjustment or satisfaction has been arrived at, the Court shall decide the question, but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment. If the defendant after coming to know of the withdrawal of the suit on 26/7/2000 was aggrieved of the same in any manner, he could have filed appropriate application under the said proviso and the learned trial court could have either restored the suit or held that the suit was validly withdrawn upon a compromise. The defendant also could file an appeal under Order 43 Rule 1-A. But nothing of this sort was done. 8. Instead of doing so, the defendant filed an application through Shri Bheem Kant Vyas, Advocate only on 18/8/2000 claiming compliance of the undertaking and not restoration of the suit. The said application somehow, in the opinion of this Court, erroneously, came to be allowed by the learned trial court on 26/5/2001 and the plaintiff was asked to comply with the undertaking dated 6/8/99 and the revision against that also came to be dismissed by the coordinate bench of this court vide Annex.1 dated 18/5/2005. 9. This Court is at loss to understand how the undertaking given in terms of the directions given at the time of deciding temporary injunction application under Order 39 Rule 1 & 2 CPC could be asked to be complied with when the suit itself stood dismissed as withdrawn on 26/7/2000. No order passed on temporary injunction application or stay application or any other interlocutory application can survive after the main suit itself is decided. No order passed on temporary injunction application or stay application or any other interlocutory application can survive after the main suit itself is decided. If there is any doubt or question about the decision of the main suit itself, there is a procedure given in the Civil Procedure Code for remedy against that. If there is a decree on merits, the appeal is provided, second appeal is provided and if suit has been dismissed as withdrawn, as has been done in the present case, there is again a procedure prescribed under Order 23 Rule 3 proviso & appeal under Order 43 Rule 1A but instead of adopting this method, the defendant appears to have raised `a building without foundation' by claiming compliance of the undertaking given in the temporary injunction matter in the main suit, which he succeeded in getting vide order dated 26/5/2001 which was upheld by this Court on 18/5/2005. The proceedings under Order 39 Rule 2-A CPC is a sequel to that. The submission of learned counsel for the petitioner defendant that with the order dated 18/5/2005 passed by this Court, this Court again while hearing the present writ petition in proceedings under Order 39 Rule 2-A cannot go beyond the observations in the said order dated 18/5/2005, with great respects, is not tenable. The present proceedings in the form of writ petition under Article 227 of the Constitution are directed against the proceedings under Order 39 Rule 2-A CPC, which have been subsequently initiated by defendant and upon rejection by courts below are sought to be reinstituted by invoking writ jurisdiction of this Court under Article 227 of the Constitution of India. 10. Here the question is whether an undertaking given in terms of the directions given by the learned trial court on an application for temporary injunction would survive or live beyond the life of the suit itself. The answer to the same has to be in negative. Unless and until the suit could be restored for fresh trial or fresh decision on merits, the said undertaking was a dead letter and there was no question of complying with the same. 11. The other question is that the undertaking was required to be given by the plaintiff was that in case he fails in the main suit then he would remove the disputed construction at his own cost. 11. The other question is that the undertaking was required to be given by the plaintiff was that in case he fails in the main suit then he would remove the disputed construction at his own cost. The words `fails in the main suit' in the order dated 5/8/1999, obviously, mean a `decision of suit on merits'. A simple withdrawal of the suit which disposes of the suit does not amount to `decision of suit on merits'. Order 23 of Civil Procedure Code permits such withdrawal of suit or abandonment of part of claim by the plaintiff in accordance with the said provision to cut short the litigation process and generally liberty is given to the plaintiff to withdraw the suit at any stage. The defendant has a right to object to the same and there are cases also where such withdrawal has been refused by the courts. 12. Be that as it may, it is beyond doubt that in the present case, the suit has not been dismissed on merits. The remedy for the defendant was either to urge before the learned trial court to set aside the decree dated 26/7/2000, which according to him was not on the basis of compromise validly produced before the trial court or to prefer an appeal under Order 43 Rule 1-A CPC. The given procedure in law for that has not been adopted by the defendant in the present case. But erroneously, claiming compliance of the undertaking dated 6/8/99 without the suit being first restored, could be of little avail to the defendant. That was a circuitous way adopted by the defendant Sher Singh by resorting to Section 151 CPC. Since the defendant succeeded in getting the said application allowed by order dated 26/5/2001 & upheld by this Court on 18/5/2005, with the dismissal of Revision Petition of plaintiff Ashok Kumar that resulted in offshoot of the proceedings under Order 39 Rule 2-A CPC, which terminated against defendant by two courts below and brought him again before this Court by way of present writ petition. 13. 13. Obviously, the reasons given by the courts below that defendant failed to satisfy the courts that the plaintiff raised the construction of two stairs and a platform (`Runa') after giving of said undertaking on 6/8/1999 is a finding of fact and would not call for any interference by this Court under Article 227 of the Constitution of India, but it appears that the defendant is daggers drawn with the plaintiff still and is up before this Court in the present writ petition. 14. Since in the considered opinion of this Court, the undertaking given by the plaintiff on 6/8/99 in pursuance of temporary injunction order dated 5/8/99 could not have survived beyond 26/7/2000, there is no question of seeking compliance of the same by moving such application and hence there was no justification at all for initiation of proceeding under Order 39 Rule 2-A CPC. Both the learned courts below were justified in rejecting the said application by the impugned orders dated 8/12/2010 & 31/5/2011 and same call for no interference by this Court in the present writ petition and same deserves to be dismissed. 15. The contention of learned counsel for the petitioner defendant, Mr. Suresh Shrimali that the learned appellate court did not decide the application under Order 41 Rule 27 CPC also does not have any effect, as in the opinion of this Court, the very initiation of proceedings under Order 39 Rule 2-A CPC was without any foundation. 16. In this case, another curious fact which came to the notice of this Court is that the present suit was filed by the plaintiff only arraying defendant Sher Singh. In a case where construction was sought to be raised with the permission of the Municipal Authorities and claim of the defendant was that it was being raised without such permission, the learned trial court ought to have immediately summoned and impleaded the concerned municipal body as party defendant in the suit to ascertain whether due permission was granted for raising such construction or not. Though, it is within the domain of the plaintiff to implead the parties as defendants, the learned trial court cannot be oblivious to the factual situation and legal position in this regard. Though, it is within the domain of the plaintiff to implead the parties as defendants, the learned trial court cannot be oblivious to the factual situation and legal position in this regard. The private party has no authority or cannot say whether due permission has been granted or not and it is only the Government Authority or the Department concerned, like Municipal Corporation or JDA to place it before the learned trial court, whether due permission has been granted or refused for certain reasons and, therefore, in such cases, the learned trial court should necessarily direct such authorities to appear before it and adduce necessary evidence. In the absence of same, the suit proceeds like a chariot on one wheel, which is impossible. Therefore, this Court would like to put a word of caution for guidance of courts below that in such cases whenever they are seized of such controversy, they should summon, implead the municipal authorities or Govt. Department concerned as defendants and take their stand on record in this regard so that proper justice can be done in such cases. 17. By way of obiter, this Court would also like to observe that in the present case, the concerned advocate Mr. Hari Shanker Shrimali, who purportedly appeared on behalf of & as junior of Mr. Bheem Kant Vyas, Advocate have not sufficiently explained their application furnished before the learned trial court on 26.7.2000 & subsequently on 18.8.2000 by filing their affidavits and on the contrary the senior colleague Mr. Bheemkant Vyas only moved the subsequent application dated 18.8.2000 seeking compliance of undertaking holding back the background of the decision of the suit itself on 26.7.2000. May be, it was for the party concerned to move either the Bar Council or the learned trial court against the said advocates so that they could be expected to make their position clear with regard to application dated 26.7.2000 in respect of compromise & subsequent application dated 18/8/2000 and in the absence of which, this Court while passing the judgment dated 18.5.2005 even summoned the inquiry report from the trial court and had to hold that the appearance of said Hari Shanker Shrimali was without authority of the client. This Court obviously feels amiss that before recording said finding either in the inquiry report or by this Court, the said advocates could have been called upon to make their stand clear in this regard. In the absence of same, nothing further is required to be said in this case at this stage, but, it is a matter of concern for this court that these days frequently allegations are made and tables are sought to be turned by making allegations against the advocates without even proceeding against them in accordance with the relevant rules. 18. Accordingly, finding no force in the present writ petition, the same is dismissed. No costs. Copy of this order be sent to opposite side & courts below forthwith.