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2016 DIGILAW 587 (JHR)

Krishna Devi @ Prema Devi Sharma v. Vijay Sharma

2016-04-07

APARESH KUMAR SINGH

body2016
ORDER : 1. Heard learned counsel for the parties. 2. The order rejecting application under Section 94(3) CPC dated 15th April, 2015 in Title Suit No. 45 of 1992 is under challenge in the present writ application. Petitioner has also prayed for a direction upon the court below for reconstruction of plaintiff's exhibits of Title Suit No. 45 of 1992 pending in the Court of learned Civil Judge-VIII (Senior Division), Ranchi. The suit is of the year 1992 praying for declaration that plaintiff nos. 3 and 4 are coparceners of defendant nos. 1 and 2 being male members of joint family and plaintiff as the members of the said joint family is not bound by collusive Partition Suit no. 20 of 1977, which was decreed by the Court of Sub Judge-I Ranchi. Plaintiff had also sought further relief for declaration as member of the joint family owning the suit property and right of unrestricted access to the residence of the suit property. On her application on 22nd August, 1992, temporary injunction was granted by order at Annexure1, restraining the defendants from disturbing the peaceful possession of the plaintiff. Parties were directed to maintain status quo till the filing of show cause. In 2010, an application was moved under Order 39 Rules 1 & 2 read with Section 151 CPC by the plaintiff on which vide order dated 24th November, 2010, it was recorded that learned counsel for the defendants have submitted that they would not indulge in disturbance. It is not a matter of dispute that certain exhibits adduced by the plaintiff during the course of suit have vanished and are not available on the records of learned trial court as is apparent from the order dated 9th December, 2010. A prayer for reconstruction of the document has been made on behalf of plaintiff on which vide order dated 17th June, 2015, the matter has been referred to the Court of Principal Judicial Commissioner, Ranchi for according permission to reconstruct the said document. The order records that the defendants have not made any objection to the documents sought to be reconstructed. 3. Learned counsel for the respondents also reiterated the stand that they would not have any objection to reconstruction of the document. The order records that the defendants have not made any objection to the documents sought to be reconstructed. 3. Learned counsel for the respondents also reiterated the stand that they would not have any objection to reconstruction of the document. During the continuance of the proceedings, an application was again made under Order 39 Rule 2 alleging that the order of interim injunction is being violated and it should be continued to restrain the respondents from causing breach of peace. That prayer was declined by learned court below vide order dated 11th February, 2015 (Annexure-6) to the writ petition. That order however is not under challenge. Plaintiff took resort of the provisions of Section 94 read with Section 151 CPC alleging that under supplemental powers available to learned court below, it could restrain the respondents from undertaking any construction over the suit property and causing breach of peace despite the fact that a petition under Order 39 Rule 2 had also been rejected. 4. Counsel for the petitioner has relied upon a judgment rendered by Apex Court in the case of Vareed Jacob Vs. Sosamma Geevarghese and Others, reported in (2004) 6 SCC 378, paragraphs 31 and 32 thereof which are also quoted hereunder:- Para 31 : A distinction is to be borne in mind keeping in view the fact that the incidental proceedings are in aid to the final proceedings. In other words, an order passed in the incidental proceedings will have a direct bearing on the result of the suit. Such proceedings which are in aid of the final proceedings cannot, thus, be held to be at par with supplemental proceedings which may not have anything to do with the ultimate result of the suit. Para 32 : Such a supplemental proceeding is initiated with a view to prevent the ends of justice from being defeated. The supplemental proceedings may not be taken recourse to as a routine matter but only when an exigency arises therefor. The orders passed in the supplemental proceedings may sometimes cause hardships to the other side and thus, are required to be taken recourse to when a situation arises therefor and not otherwise. There are well-defined parameters laid down by the court from time to time as regards the applicability of the supplemental proceedings. 5. The orders passed in the supplemental proceedings may sometimes cause hardships to the other side and thus, are required to be taken recourse to when a situation arises therefor and not otherwise. There are well-defined parameters laid down by the court from time to time as regards the applicability of the supplemental proceedings. 5. Counsel for the parties have, during the course of submission, sought to get into the merits of the dispute. Leaned counsel for plaintiff has cited instances of construction undertaken over the suit property at the behest of defendant while the defendants have alleged that plaintiff is enjoying possession over the share of the property if she succeeds in the suit. 6. After considerable contesting arguments on the part of rival parties, a submission is made on their behalf that interest of justice would be served if an appropriate direction is issued for the main suit to be concluded within a time frame. Till then, the order of status quo may be granted. The Principal Judicial Commissioner and learned trial court may also be directed to allow reconstruction of the exhibits lost within a time frame. 7. Having recorded the aforesaid relevant matrix of the case and in view of the submissions made lastly by counsel for the parties, this Court is of the view that it would be in the interest of justice for proper adjudication of a suit of 1992 that the following order be passed. The learned court of Principal Judicial Commissioner and learned trial court would take steps with cooperation of the parties for reconstruction of lost document as reflected in order dated 17th June, 2015 within a period of 4 weeks. 8. Counsel for the parties submits that the suit is at the stage of arguments. Learned trial court would proceed with the suit and conclude the same within a period of 6 weeks thereafter. Counsel for the parties would cooperate in the arguments on the date fixed and no unnecessary adjournments be granted. For a period of 12 weeks from today, status quo in respect of the suit property shall be maintained. 9. In case, the suit is not finally decided within the time limit fixed of 12 weeks as aforesaid the order of status quo would stand vacated and it would be open for the parties to make fresh prayer for any interim protection or status quo before court below. 9. In case, the suit is not finally decided within the time limit fixed of 12 weeks as aforesaid the order of status quo would stand vacated and it would be open for the parties to make fresh prayer for any interim protection or status quo before court below. 10. Accordingly, the writ petition is disposed of in the aforesaid manner. Consequently, I.A. No. 133 of 2016 also stands disposed of. Petition disposed of.