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2012 DIGILAW 355 (PAT)

Dhirendra Kumar v. Bihar State Housing Board

2012-02-28

BIRENDRA PRASAD VERMA

body2012
ORDER With consent of the parties and in view of order dated 31.01.2012, Miscellaneous Appeal No. 907 of 2010 as also I. A. No. 3982 of 2011 and I.A. No. 6707 of 2011 were taken up together for hearing and final disposal. 2. The appellant Shri Dhirendra Kumar, a practicing advocate, appearing in person, and learned counsel appearing on behalf of the respondents, were heard extensively for 2 days. 3. The plaintiff-appellant herein (referred to as “appellant” in short) has filed the present Miscellaneous Appeal under Order XLIII Rule 1(r) of the Code of Civil Procedure, 1908 (hereinafter referred to as “the C. P. C.”) questioning the validity and correctness of the impugned order dated 06.09.2010 passed in Title Suit No. 335 of 2006 by the learned Subordinate Judge-XII, Patna, whereby prayer made on behalf of the appellant for grant of temporary injunction with respect to suit property has been rejected. 4. Short facts, relevant for disposal of the present appeal, are that Title Suit No. 335 of 2006 has been filed by the appellant, and is pending trial in the court of learned Subordinate Judge-XII, Patna, seeking a declaration that his removal from the suit property, i.e., MIG house No. 237 (double storied) situate at Lohiya Nagar, Kankarbagh, in the town of Patna, was illegal and he is entitled to be re-inducted in the suit house by the process of the court. Besides that, other incidental reliefs have also been prayed for. Aforesaid Title Suit No. 335 of 2006 has already been admitted by the learned Subordinate Judge-XII, Patna. Defendant no. 1 Bihar State Housing Board-respondent no.1 herein (referred to as “respondent no.1” in short) and defendant no.7 Smt. Neena Prasad- respondent no.2 herein (referred to as “respondent no.2” in short), have already filed their separate written statement challenging the maintainability of the suit on various grounds and have prayed for its dismissal. However, defendant nos. 2 to 5, who are the legal heirs and representatives of late Anil Kumar Sinha, the original allottee of the suit property, as also defendant no.8, have chosen neither to appear in the suit nor to file written statement on their behalf. Hence, the learned Subordinate Judge-XII, Patna has already passed order directing therein that suit shall proceed ex-parte against those non-contesting defendants. Hence, the learned Subordinate Judge-XII, Patna has already passed order directing therein that suit shall proceed ex-parte against those non-contesting defendants. As a matter of fact, respondent no.2 is the main contesting party in the said Title Suit as also in the present appeal. 5. Before proceeding further, it would be relevant to notice that on 19.05.2007, appellant filed a petition under Order XXXIX Rules 1 and 2 read with Sections 94 and 151 of the C.P.C. before the learned trial court with a prayer for grant of temporary injunction restraining defendant nos. 6 and 7, the husband and wife respectively, from alienating, selling, parting with the possession, encumbering the suit property and from making any material alteration or changing the physical features of the suit property. During the course of hearing of the aforesaid petition, an alternative prayer was also made that till disposal of the suit, the defendants may be directed to maintain status quo over the suit property. Defendant no.1 appears to have filed a rejoinder on 23.11.2009 and defendant nos. 6 and 7 filed their rejoinder on 25.03.2010 strongly opposing the prayer made on behalf of the appellant for grant of temporary injunction on various grounds and finally it was prayed that aforesaid petition dated 19.05.2007 be rejected. 6. It further appears that the plaintiff filed yet another petition before the learned trial court for appointment of an Advocate Commissioner for making local inspection of the suit house and for submitting a report about existing physical features of the suit property. Defendant nos. 6 and 7, husband and wife respectively, as also defendant no.1 filed their separate rejoinder opposing the aforesaid prayer made on behalf of the plaintiff for appointment of an Advocate Commissioner, as according to them, the physical features of the suit property was not relevant in the present suit. After hearing the parties, aforesaid petition for appointment of an Advocate Commissioner has finally been rejected by learned Subordinate Judge-XII, Patna by his order dated 04.02.2010 and the said order has been brought on record as Annexure-3 to the memo of appeal. 7. While the aforesaid petition dated 19.05.2007, filed on behalf of the plaintiff for grant of temporary injunction was still pending before the learned Subordinate Judge-XII, Patna, defendant no. 7. While the aforesaid petition dated 19.05.2007, filed on behalf of the plaintiff for grant of temporary injunction was still pending before the learned Subordinate Judge-XII, Patna, defendant no. 7 filed a petition under Order VII Rule 11 C.P.C. on 27.04.2009 for rejection of the plaint of the plaintiff on various grounds mentioned therein in that petition. Plaintiff filed a rejoinder on 11.06.2009 to the aforesaid petition dated 27.04.2009 resisting the prayer made on behalf of defendant no.7. After hearing the parties and on consideration of the materials available on record, learned Subordinate Judge-XII, Patna, by a speaking order dated 31.08.2009 has rejected the aforesaid petition filed on behalf of defendant no. 7 and the said order has been brought on record as Annexure-1 to the Memo of Appeal. 8. During the pendency of the present Miscellaneous Appeal, I.A. No. 3982 of 2011 was filed by the appellant with a prayer for passing appropriate order for directing the defendants to maintain status quo over the suit property and further for restraining them from transferring the suit property to any third party. By an order dated 16.06.2011 a Bench of this Court, while issuing notice to respondent no.2 in the aforesaid Interlocutory Application, granted interim protection in favour of the appellant, and respondent no.1 and its authorities were restrained from alienating, encumbering or making any construction over the suit property. 9. On receipt of the aforesaid notice issued by this Court, the respondent no.2 has entered appearance through a lawyer and has filed a counter affidavit taking almost identical grounds, which have been taken in the written statement filed in the court below, and a prayer has been made for dismissal of the instant miscellaneous appeal. The appellant has filed a reply affidavit to the aforesaid counter affidavit and has reiterated almost identical facts and law, which have been taken in the plaint filed by him in the court below in the aforesaid title suit. Respondent no.2, subsequently, filed I.A. No. 6707 of 2011 with a prayer for vacating the stay order passed by this Court in the present proceeding by an order dated 16.06.2011. 10. Respondent no.2, subsequently, filed I.A. No. 6707 of 2011 with a prayer for vacating the stay order passed by this Court in the present proceeding by an order dated 16.06.2011. 10. When the matter was taken up on 31.01.2012 for consideration of I.A. No. 6707 of 2011 filed by respondent no.2, then both sides agreed that instead of deciding the aforesaid I.A. No. 6707 of 2011, the miscellaneous appeal itself be heard under Order XLI Rule 11 C.P.C. and be decided finally on merits. In the aforesaid background, the matter was heard finally on 01.02.2012 and 02.02.2012 extensively. It was stated by the appellant, appearing in person, as also learned counsel appearing on behalf of the respondents that the pleadings are complete on behalf of the contesting parties in the court below and the suit has been fixed for settlement of the issues. 11. The appellant, appearing in person, has fairly conceded that he is no longer in possession over the suit property, and according to him, he was unlawfully evicted from there in the year 1998 itself by virtue of an order passed by this Court. He has also conceded that at present the respondent no.2 is having her possession over the suit property. 12. It was submitted by the appellant that by virtue of rights reserved in his favour by a judgment and order dated 02.09.1998 passed in CWJC No. 6617 of 1988 (Anil Kumar Sinha Vs. The Bihar State Housing Board and others), reported in 1998(3) PLJR 437, he has filed the aforesaid Title Suit No. 335 of 2006 for the reliefs enumerated by him in the plaint and the aforesaid title suit has already been admitted by the learned court below, but during the pendency of the aforesaid title suit, contesting defendant no. 7 as also her husband defendant no.6 are trying to alienate the suit property creating a right in favour of third party. According to him, all the issues raised on behalf of the parties are at large before the civil court and till the suit is finally decided, defendant nos. 6 and 7 should not be permitted to alienate or encumber the suit property. It was next contended that during the pendency of the petition filed by the plaintiff- appellant in the court below for grant of temporary injunction, defendant no. 6 and 7 should not be permitted to alienate or encumber the suit property. It was next contended that during the pendency of the petition filed by the plaintiff- appellant in the court below for grant of temporary injunction, defendant no. 7 filed a petition under Order VII Rule 11 CPC for rejection of the plaint on various grounds including the grounds, which are being urged in the present miscellaneous appeal on behalf of the respondents, but the aforesaid petition filed by respondent no.2 has been rejected finally by order dated 31.08.2009 (Annexure-1). Therefore, it is contended that once the prayer for rejection of the plaint made on behalf of respondent no.2 has been negatived by the learned Subordinate Judge, then the suit is required to be decided in accordance with law. It was stated that the plaintiff is prepared to adduce all his evidence within a short time fixed by this Court and the court below may be directed to decide the suit at an earliest possible time. 13. Learned counsel appearing on behalf of the respondent no.2 has strongly opposed the prayer made on behalf of the appellant and has strenuously submitted that the case is fully covered by a Division Bench judgment of this Court in the case of Anil Kumar Sinha Vs. The Bihar State Housing Board and others (supra). According to him, the appellant was evicted from the suit property by virtue of aforesaid judgment and order as far back as in the year 1998 and thereafter respondent no.2 purchased the suit property from the legal heirs and representatives of the original allottee Anil Kumar Sinha (since deceased), and she is peacefully coming in possession over the same since 06.06.2002. It was also contended that the respondent no.2 has acquired valid right, title and possession over the suit property and, therefore, the prayer for temporary injunction made by the appellant is completely misconceived and has rightly been rejected by the learned Subordinate Judge-XII, Patna by his impugned order dated 06.09.2010. It was next contended that the rights reserved in favour of the appellant by a Division Bench of this Court in the case of Anil Kumar Sinha Vs. The Bihar State Housing Board and others (supra) was very limited and the plaintiff cannot be permitted to expand the scope of the rights reserved in his favour. 14. It was next contended that the rights reserved in favour of the appellant by a Division Bench of this Court in the case of Anil Kumar Sinha Vs. The Bihar State Housing Board and others (supra) was very limited and the plaintiff cannot be permitted to expand the scope of the rights reserved in his favour. 14. Learned counsel appearing on behalf of the respondent no.1- Bihar State Housing Board has supported the impugned order. However, learned counsel appearing on behalf of both the respondents, on a query made by the court, have taken a fair stand that if this Court so directs, they shall produce their evidence within a time frame fixed by this Court. 15. After hearing the parties and on consideration of the materials available on the records, this Court comes to a finding that admittedly the plaintiff is not in possession over the suit property since his eviction in the year 1998 by virtue of order and judgment passed by this Court in the case of Anil Kumar Sinha Vs. The Bihar State Housing Board and others (supra). It is the admitted case of the parties that the suit property is at present under the possession of defendant no. 7. This Court is also of the considered opinion that in view of the order dated 31.08.2009 (Annexure-1) passed by the learned Subordinate Judge-XII, Patna, refusing the prayer made on behalf of defendant no. 7 for rejection of the plaint of the plaintiff in terms of Order VII Rule 11 CPC, the suit is required to be decided on merits, unless and until the aforesaid order dated 31.08.2009 is set aside by any higher court. It is a common case of the parties that till date the order dated 31.08.2009 passed in the aforesaid Title Suit No. 335 of 2006 (Annexure-1) has not been set aside by any higher court and it still holds the field. Since the issues regarding possession or limited rights reserved in favour of the appellant by virtue of the judgment and order passed by this Court in the case of Anil Kumar Sinha Vs. Since the issues regarding possession or limited rights reserved in favour of the appellant by virtue of the judgment and order passed by this Court in the case of Anil Kumar Sinha Vs. The Bihar State Housing Board and others (supra) is at large in the court below and is required to be decided by the Civil Court on the basis of the materials produced by the parties, it would not be proper for this Court, at this stage, to make any comment regarding merit of the claims of the parties in the aforesaid title suit. This Court also finds that an interim protection has already been granted in favour of the appellant by an order dated 16.06.2011 passed by a Bench of this Court. Therefore, in the given facts, it shall not be proper to vacate the aforesaid order dated 16.06.2011 and allow the respondent no.2 to alienate or encumber the suit property till the final disposal of the suit. 16. In the aforesaid facts and circumstances, this Court is of the considered opinion that instead of deciding the issue of temporary injunction on merits, the interest of justice would be sub-served if the learned Subordinate Judge-XII, Patna is directed to finally decide the suit itself within a fixed period of time. It is ordered accordingly, and it is directed that: (A) Learned Subordinate Judge-XII, Patna, in seisin of the Title Suit No. 335 of 2006, shall settle the issues, if not already settled, within a period of one month from the date of receipt/production of a copy of this judgment/order or on the next date, fixed in the Title Suit, whichever is earlier. (B) After settlement of the issues, the plaintiff-appellant shall produce all his witnesses/ evidences within a maximum period of two months from the date of such settlement and shall not be allowed to take unnecessary adjournments. (C) Thereafter, the defendant no. 1 the Bihar State Housing Board shall adduce its evidence and shall produce all the witnesses within a period of two months from the date of closure of the evidence of the plaintiff. (D) Defendant no. 7- respondent no.2, shall thereafter, produce her evidence and shall examine all the witnesses within a period of two months from the date of closure of evidence of the defendant no.1- respondent no.1 herein. (D) Defendant no. 7- respondent no.2, shall thereafter, produce her evidence and shall examine all the witnesses within a period of two months from the date of closure of evidence of the defendant no.1- respondent no.1 herein. (E) After closing the evidence of all the parties, the learned trial court shall make all endeavour to conclude the hearing of the suit within a period of one month. (F) If need be and taking into consideration the feasibility, the learned Subordinate Judge may proceed in the suit on day to day basis, after settlement of issues in the suit. (G) The learned Subordinate Judge shall be obliged to decide the title suit within a maximum period of 9 months from the date of receipt/production of a copy of this judgment/order. On pronouncement of the judgment by the learned Sub-Judge, the matter shall be reported to this Court in its administrative side about the compliance of this order. (H) For the aforesaid period of 9 months, the parties shall maintain status quo over the suit property. In other words, the defendants shall not in any manner alienate, encumber or change the physical features of the suit property. The plaintiff shall also not create any hindrance in the peaceful possession of the defendant no. 7- respondent no.2 herein over suit property during aforesaid period. 17. With the aforesaid directions/ observations, the present miscellaneous appeal and the interlocutory applications stand disposed of. 18. It is clarified that the observations made in the present judgment and order are only for the purposes of disposal of the present miscellaneous appeal and shall not, in any manner, adversely affect the case of the parties in the title suit. The parties shall bear their own costs.