Research › Search › Judgment

Punjab High Court · body

2011 DIGILAW 778 (PNJ)

Kashmir Kaur v. Ranjit Singh

2011-03-10

JASWANT SINGH

body2011
JUDGMENT JASWANT SINGH, J. - Plaintiff-petitioner has preferred the instant petition under Article 227 of the Constitution praying for setting aside the impugned order dated 19.8.2009 (P.4) passed by the learned Civil Judge (Sr. Division), Gurdaspur whereby her application under Order 39 Rule 2-A read with Section 151 CPC for initiating of contempt proceedings has been dismissed. 2. Facts of the case are that the plaintiff-petitioner filed a Civil Suit No.171 dated 8.6.2005 for possession by way of specific performance of agreement dated 23.4.2004 executed by the defendants-respondents in favour of the plaintiff-petitioner regarding land measuring 16 kanal 12 marlas as described in the head note of the plaint. Along with the civil suit, an application for interim injunction was also filed. Upon notice, the defendants-respondents filed written statement in the main suit as well as reply to the injunction application. After considering rival contentions of parties, status quo regarding possession as well as alienation was granted vide order dated 15.6.2005 (P.1). During the pendency of the civil suit, an application dated 10.8.2005 (P.2) under Order 39 Rule 2-A read with Section 151 CPC was filed by the plaintiff-petitioner for initiation of contempt proceedings against the defendants-respondents for violating the interim injunction dated 15.6.2005 (P.1). Upon notice, the defendants-respondents opposed the application by filing reply dated 7.9.2005 (P.3). After hearing both the sides, the learned trial Court vide its impugned order dated 19.8.2009 dismissed the application, hence the present petition. 3. Heard learned counsel for the petitioner and perused the paper book. 4. Learned counsel for the plaintiff-petitioner argues that the learned trial Court has grossly erred while dismissing the application under Order 39 Rule 2-A by passing the impugned order in view of the fact that the defendants-respondents have deliberately violated the interim order dated 15.6.2005 by executing sale deed in favour of one Nazir Singh. It is further argued that instead of dismissing the injunction application, learned trial Court ought to have allowed the same and punished the defendants-respondents for flouting the interim order referred above. 6. It is not in dispute that the status quo regarding possession as well as alienation of suit land was ordered by the learned trial Court till 29.6.2005 vide its order dated 15.6.2005 by observing as under: “Written statement and reply to stay application filed. 6. It is not in dispute that the status quo regarding possession as well as alienation of suit land was ordered by the learned trial Court till 29.6.2005 vide its order dated 15.6.2005 by observing as under: “Written statement and reply to stay application filed. Both the parties have suffered with statement that they will get the sale deed of the property in dispute on 29.6.2005. Defendant has also given statement that till 29.6.2005, they would not cultivate the land. Similarly, Kashmir Kaur plaintiff also suffered with statement that she would get register sale deed in her favour on 29.6.2005 on balance payment of the amount agreed in the agreement to sell. She has also suffered with statement that she would also not cultivate the land till 29.6.2005 and the same would remain vacant. In view of the statements of both the parties, status quo of possession as well as alienation would be maintained till 29.6.2005. It is made clear that on the failure of the parties to execute the sale deed on 29.6.2005, the suit would be decided on merit. Now to come up on 23.7.2005 for further proceedings.” 6. It is an admitted fact that on 23.7.2005, the learned Presiding Officer was on leave and the interim order referred above could not be extended any further. It is also not in dispute that on 26.7.2005, the sale deed is alleged to have been executed by the defendants-respondents in favour of their co-sharer, namely, Nazir Singh son of Rur Singh for the land measuring 1 kanal 14 marlas i.e 34/2066 share out of the total land measuring 103 kanal, 6 marla. In paragraph 2 of reply to the application under Order 39 Rule 2-A, it had been submitted that the answering respondents were ready and willing to execute the sale deed in favour of the applicants-plaintiffs on 29.6.2005 and they remained present in the office of Sub Registrar, Gurdaspur throughout the day but the applicant-petitioner did not come present and ultimately defendants-respondents got marked their presence in the shape of affidavit on 29.6.2005. It is further submitted that the dispute in the civil suit is regarding the agreement for sale of land measuring 16 kanal, 12 marla out of land measuring 66 kanal, 8 marla and the respondents-defendants are having the share to the extent of 508/2546 in total land of joint khata and they have only sold the land measuring 1 kanal 14 marla out of total land measuring 103 kanal 6 marla from the joint khata to said Nazir Singh and they have not sold any specific khasra number. It is further submitted that the defendants-respondents are still ready and willing to execute the sale deed in favour of the plaintiff-petitioner. Even said Nazir Singh is also ready to execute the sale deed of the land purchased by him in favour of the plaintiff-petitioner. 7. After considering the submissions of both the parties, learned trial Court framed the following issues: “i) Whether the respondents have violated the order dated 15.6.2005 ? OPA ii) Whether the application is not maintainable ? OPR iii) Relief.” 8. The sale deed dated 26.7.2005 was produced on file as Ex.A.2 by the applicant-petitioner and the same was perused by the learned trial Court, which came to the conclusion that the sale deed is of land measuring 1 kanal 14 marlas of joint khata of total land measuring 103 kanal, 6 marlas and not of specific khasra numbers. The learned trial Court has further rightly come to the conclusion that there was no restraint order against the defendants-respondents to alienate the land other than the suit land. Therefore, the learned trial Court has rightly come to the conclusion that the plaintiff-petitioner is in no way affected by executing the sale deed dated 26.7.2005 regarding the land measuring 1 kanal, 14 marlas. Even otherwise, there is nothing on record to substantiate that the interim order dated 15.6.2005, which was initially granted till 29.6.2005, was subsequently extended by the learned trial Court or not. 9. Petitioner has miserably failed to prove that the defendants-respondents have disobeyed the interim injunction dated 15.6.2005 and committed any contempt of court. Even otherwise, there is nothing on record to substantiate that the interim order dated 15.6.2005, which was initially granted till 29.6.2005, was subsequently extended by the learned trial Court or not. 9. Petitioner has miserably failed to prove that the defendants-respondents have disobeyed the interim injunction dated 15.6.2005 and committed any contempt of court. Even otherwise, in view of the provisions of Order 43 Rule 1 (r) CPC, the impugned order is appealable but no such appeal has been filed by the petitioner for the reasons best known to him and the remedy under Article 227 of the Constitution is not an ordinary remedy to be exercised in routine. 10. Keeping in view the facts and circumstances discussed hereinabove, this Court finds no illegality or perversity in the impugned order dated 19.8.2009 (P.4) passed by the learned Civil Judge (Sr. Division), Gurdaspur warranting interference under Article 227 of the Constitution. Dismissed. Petition Dismissed.