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2017 DIGILAW 896 (ALL)

Suresh Kumar Tripathi v. Sankatha Prasad Agrahari

2017-03-30

MANOJ MISRA

body2017
JUDGMENT : Manoj Misra, J. 1. Heard learned counsel for the petitioner; Sri Anil Kumar Aditya for the respondent no.2 and perused the record. 2. The present petition has been filed against the order dated 2nd March, 2017, passed by the District Judge, Mirzapur in civil revision no.66 of 2017 as well as order dated 9th February, 2017, passed by Civil Judge (Sr. Div.)/F.T.C., Mirzapur in Original Suit No. 35 of 1982 (Sankatha Prasad v. Dwarika Nath and others). 3. A perusal of the record would reveal that Original Suit No. 35 of 1982 was instituted by Sankatha Prasad (first respondent) for partition of the suit property and for possession of his share after demarcation. It appears that in the suit proceeding, alleging violation of an interim injunction order, separate proceeding under Order 39, Rule 2A CPC was drawn, which was dismissed by the trial Court against which F.A.F.O. No. 274 of 2016 was filed before this Court. In the said F.A.F.O. No. 274 of 2016, on 1st April, 2016, following order was passed : "Having heard learned counsel for the parties. We are of the opinion that instead of adjudicating the issues which arise in the present appeal qua violation of the temporary injunction granted in a suit pending since 1982, it is fit and proper that the suit itself be decided finally. Let a report be obtained from the District Judge, Mirzapur as to why the Original Suit No. 35 of 1982 (Sanktha Prasad Agrahari and others v. Dwarika Nath Agrahari and others) has not been decided finally till date i.e. even after expiry of 34 years of the institution of suit. A copy of this order may be forwarded to the District Judge, Mirzapur by the Registrar General of this Court. The report be submitted on or before 22.4.2016. We, however, provide that the suit proceedings shall be taken up on day to day basis without granting any unnecessary adjournment to either of the parties." 4. Thereafter when the matter proceeded further before the Court below, an application 959 Ga was filed by the defendant no.2/4 (petitioner herein) for dismissal of the suit on ground that in proceeding under Order 39, Rule 2A CPC, the plaintiff was found to be out of possession and, therefore, the suit was liable to be dismissed on principle of res judicata. 5. 5. The trial Court by impugned order dated 9th February, 2017 rejected application 959 Ga by observing that any finding returned in proceeding relating to contempt would not operate as res judicata, hence the application was rejected by imposing costs of Rs. 1,000/-. 6. Against rejection order dated 9th February, 2017, passed by the trial Court, a revision was preferred by the petitioner before the District Judge, Mirzapur, which has been dismissed by the impugned order dated 2nd March, 2017. 7. Learned counsel for the petitioner submitted that once a finding had been returned in proceeding under Order 39, Rule 2A CPC that the plaintiff was out of possession, therefore, without seeking specific relief for possession, the suit itself was not maintainable and as such the suit ought to have been dismissed. 8. The aforesaid contention of learned counsel for the petitioner cannot be accepted because the suit was for partition with a prayer to demarcate the share of the plaintiff and to put him into possession of his lot. Further, a plaint can be rejected only if on reading the plaint as a whole either no cause of action is disclosed or the suit is found barred by law. But once the plaint averments disclose a cause of action and the suit as framed does not appear to be barred by any law then suit has to proceed in accordance with law and only on the basis of evidence led during the course of suit proceeding and the findings returned on the issues framed, the suit is to be decided either way. The prayer of the petitioner that the suit should be dismissed because finding of the plaintiff being out of possession has been returned in proceeding under Order 39, Rule 2A CPC and would therefore bar any further investigation on that issue by principle of res judicata is completely misconceived and it was rightly rejected by the Court below, inasmuch as in contempt proceeding the Court is required to find out whether there is breach of the order or not. The Court in contempt proceeding is not required to enter into the correctness of the order because the object of contempt proceeding is to ensure majesty of the court. The aforesaid view finds support from Apex Court decision in Coromin Match Industries (P) Ltd. v. State of T.N. (1996) 4 SCC 281. The Court in contempt proceeding is not required to enter into the correctness of the order because the object of contempt proceeding is to ensure majesty of the court. The aforesaid view finds support from Apex Court decision in Coromin Match Industries (P) Ltd. v. State of T.N. (1996) 4 SCC 281. Even otherwise, in a suit for partition where the parties are co-sharers, the possession of one would be deemed to be on behalf of other. More over, the plaintiff has not merely sought declaration of his share but also a decree of partition to enable him to obtain a separately demarcated lot (Kura). 9. Thus, in any view of the matter the suit is not liable to be rejected, at this stage, on the grounds taken. Accordingly, this Court is of the view that no error has been committed by the Courts below in rejecting the prayer of the petitioner. 10. The petition is dismissed.