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2012 DIGILAW 213 (UTT)

NIRMAL SINGH v. GIRIRAJ KISHORE SHARMA

2012-05-07

TARUN AGARWALA

body2012
JUDGMENT 1. Heard Mr. M. C. Kandpal, the learned senior counsel assisted by Mr. S. S. Chaudhary, the learned counsel for the applicant and Mr. Sudhir Kumar, the learned counsel assisted by Mr. Anant Kumar, learned counsel for the respondent. 2. The present contempt application has been filed for the willful disobedience of an interim order of the court dated 20.03.2009 passed in Writ Petition No.387 of 2007 (M/S). For facility, the said order is extracted hereunder:- “Heard Sri M. C. Bansal and Sri A. K. Bansal, learned counsel for the petitioner and Sri Sudhir Kumar, learned counsel for the respondent no. 2 . Argument of the parties continued for Tuesday, 24th March, 2009. Till then the parties shall maintain status quo, as on today, over the land in dispute. List on Tuesday, 24th March, 2009.” 3. The facts leading to the filing of the contempt application is, that the opposite party filed a suit for partition of his share of the property in question under Section 176 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the UPZA & LR Act) in which the applicant was a defendant. This suit was decreed against which the defendant filed an appeal as well as the second appeal, which were all dismissed. Consequently, the defendant preferred a writ petition No. 387 of 2007 (M/S) before this court in the year 2007 which was admitted by an order dated 20.02.2009. On the same date, an urgency application was moved in which it was alleged that the opposite party, i.e., the contemnor was trying to dispossess the applicant petitioner from the land in question. While the matter was being heard and the hearing could not be completed, the court passed the aforesaid interim order. It transpires from the ordersheet that the hearing went on for several days and, eventually, the interim order was extended till further orders of the court. The writ petition was dismissed in default on 07th September, 2010 but on an application of the petitioner, theorder of dismissal was recalled by an order dated 14.09.2010. Thereafter, the opposite party executed a sale deed dated 14th October, 2010 in favour of a third party. 4. On the execution ofthe sale deed, the present contempt application was filed by the petitioner applicant alleging willful disobedience of the interim order of the writ court by the opposite party. Thereafter, the opposite party executed a sale deed dated 14th October, 2010 in favour of a third party. 4. On the execution ofthe sale deed, the present contempt application was filed by the petitioner applicant alleging willful disobedience of the interim order of the writ court by the opposite party. Notices were issued and a counter affidavit was filed. The court by an order dated 12.09.2011 prima facie found that a case of willful disobedience was made out against the opposite party and, consequently, framed the following charge, which is extracted hereunder.- “You, Sri Giriraj Kishore Sharma S/o Sri Chote Lal Sharma have willfully and deliberately disobeyed the interim order of the court dated 20th March, 2009 by executing a sale deed dated 14.10.2010 in favour of a third party.“ 5. In response to the aforesaid charge, the opposite party filed his reply and a supplementary affidavit. 6. The only ground urged by the learned senior counsel for the applicant is that a clear case of willful disobedience has been made by the opposite party since there was a specific order that the parties were required to maintain status-quo over the land in question, inspite of which, the opposite party has executed a sale deed. The learned senior counsel for the applicant submitted that the order of status-quo over the land in question does not mean possession or its dispossession but also include execution of the sale deed and consequently the opposite party, being aware of the interim order of the court illegally sold the land, creating third party rights and consequently, the appellant has deliberately and willfully disobeyed the order of the court and is liable to be punished. 7. On the other hand, the learned counsel for the contemnor submitted that the writ petition was dismissed in default on 07th September, 2010 and even though the writ petition was restored by an order dated 14th September 2010, the applicant being unaware of the restoration of the writ petition, executed the sale deed in good faith. Further, a submission has been made in the counter affidavit that even though, the writ petition was restored, the interim order dated 20.03.2009 was not restored. Further, a submission has been made in the counter affidavit that even though, the writ petition was restored, the interim order dated 20.03.2009 was not restored. The learned counsel for the respondent, however, submitted that notwithstanding the stand taken by the contemnor, the interim order dated 20.03.2009 directing the parties to maintain status-quo order the land in question was with regard to the possession of the land in question between the parties. In support of his submission, the learned counsel placed reliance upon the urgency application No.397 of 2009 filed by the applicant petitioner in the writ petition, which has been supported by an affidavil Para 2 of the urgency application, on which basis, the interim order was passed, is extracted hereunder:- “2. That the respondent no.2 is trying to take possession over the land in dispute. If the respondent no. 2 succeeds in taking possession over the land in dispute on the basis of a void decree then the purpose of filing the present writ petition will be frustrated.” 8. Having heard the learned counsel for the parties at some length, the court is of the opinion that having regard to the facts and circumstances of the case that has been placed on record, an irresistible conclusion is drawn that the order of status-quo over the land in dispute as directed by the court by its order dated 28th March, 2009 was confined with regard to the possession of the land in question between the parties. The order of status-quo was only confined to possession and nothing beyond that. Consequently, the opposite party against whom the there is a decree of partition in his favour was eligible and competent to execute a sale deed in favour of a third party. The court is of the opinion that there is no willful disobedience of the order of the writ court by the opposite party. 9. The learned senior counsel for the applicant submitted that a perusal of the sale deed indicates that the possession of the land had also been given to the purchaser. The court asked a query as to whether the applicant is still in possession of the land in question, to which, he clearly conceded that the applicant is still in physical possession. The court asked a query as to whether the applicant is still in possession of the land in question, to which, he clearly conceded that the applicant is still in physical possession. In the light of the aforesaid statement, it is clear that the possession so alleged to have been given to the purchaser under the sale deed is not actual physical possession, but a notional possession and such possession and execution of the sale deed would be subject to the result of the writ petition since the principle of “lis pendis” is applicable. 10. In the light of the aforesaid, the court does not find any merit in the contempt application. Notices are discharged and the contempt application is dismissed. Personal appearance of the contemnor, who is present in court today, is dispensed with.