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2017 DIGILAW 1216 (JHR)

Md. Nezamuddin, son of Gafoor Mian v. Sahid Iliyas

2017-07-21

RAJESH SHANKAR

body2017
ORDER : The present writ petition has been filed against the order dated 6th April, 2005 passed by the learned Munsif-I, Dhanbad in Title Suit No.96 of 1998 by reasons of which an application filed by the plaintiffs/respondents under Order XXVI Rule 9 of the Code of Civil Procedure has been allowed. 2. Heard learned counsels for the parties and perused the records. 3. It appears that the plaintiffs/respondents filed a suit, bearing Title Suit No.96 of 1998, in the court of learned Munsif-I, Dhanbad for declaration of title and confirmation of possession and also for permanent injunction as against the defendant/petitioner over Plot No.101, Khata No.2 within Mouza Gazuatand, P.S. Dhansar, District Dhanbad. The respondents also filed an application under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure in the suit, praying for temporary injunction as against the petitioner, however, the same was refused by the learned Munsif vide order dated 26th September, 1998. Against the said order, the respondents preferred Misc. Appeal No.55 of 1998 in the court of learned Additional District Judge-XII, Dhanbad. The said miscellaneous appeal was dismissed with an observation that the defendant (petitioner herein) did not claim any right/title over Plot No.101A and 6 ft. encroachment has been admitted by him on Plot No.101, therefore, it would be in the fitness of things that no further construction would be made by the defendant on Plot No.101. Accordingly, both the parties were directed to maintain status quo till disposal of the suit and the learned Trial Court was directed to dispose of the case expeditiously. 4. Subsequently, the plaintiffs/respondents filed an application before the learned Trial Court (Court of Munsif-I, Dhanbad) under Order XXVI Rule 9 CPC (Annexure-5 to the writ petition), praying for appointment of a Pleader Commissioner for making local inspection, as it was alleged by the plaintiffs/respondents that the defendant/petitioner has violated the order of status quo passed in Misc. Appeal No.55 of 1998. The learned Munsif allowed the said application vide order dated 6th April, 2005, which has been put to challenge by the defendant/petitioner in the present writ petition. 5. On going through the impugned order dated 6th April, 2005 passed by the learned Munsif-I, Dhanbad, I am of the view that the said order does not suffer from any error of fact and law. 5. On going through the impugned order dated 6th April, 2005 passed by the learned Munsif-I, Dhanbad, I am of the view that the said order does not suffer from any error of fact and law. Once the order of status quo was passed by the learned Additional District Judge vide order dated 9th December, 2002 in Misc. Appeal No.55 of 1998, directing the parties to maintain status quo till disposal of the suit, if any such violation of the order of status quo was alleged by the plaintiffs/respondents against the defendant/petitioner, it was the duty of the Trial Court to make an enquiry by appointing a pleader commissioner so as to ascertain whether there had been any violation of the order of status quo. The provisions of Order XXVI Rule 9 CPC provides for dealing with such situations. 6. Thus, I am of the opinion that the impugned order dated 6th April, 2005 passed by the learned Munsif-I, Dhanbad does not suffer from any infirmity. I, therefore, find no reason to interfere with the said order. The writ petition, being devoid of merit, is dismissed. The interim order dated 24th June, 2005 stands vacated.