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2023 DIGILAW 1331 (RAJ)

Om Prakash v. Ami Lal

2023-07-07

NUPUR BHATI

body2023
ORDER : (Nupur Bhati, J.) The present writ petition has been filed under Article 226 of the Constitution of India with the following prayers:- (i) The impugned order dated 29.08.2019 (Ann.3) passed by learned Addl. District Judge No.1, Nohar District Hanumangarh as well as order dated 22.01.2015 (Ann.1) passed by learned Civil Judge Rawatsar District Hanumangarh may kindly be quashed and set aside. (ii) The petitioner may kindly be ordered to be pardoned. (iii) Any other appropriate writ, order or direction which the Hon'ble Court deems just and proper may kindly be passed in favour of the petitioner. 2. Brief facts of the case are that in name of the father of the plaintiff and defendant, an agricultural land in Chak 1 JMW Square No.8 Stone No.134/379 measuring 0.911 hectares, Square No.16 Stone No.134/380 measuring 6.236 hectares and Square No.22 Stone No.134/381 measuring 1.265 hectares, was situated, on which, plaintiff, defendant and other family members were cultivating jointly and after the death of father of the plaintiff and the defendant, i.e. on 17.12.2005, the Petitioner-defendant contends to have the Will dated 28.01.1998 of said 7 killas in his favour. The Respondent-Plaintiff after getting the knowledge of the Will dated 28.01.1998, filed a suit before the learned trial court below on 26.04.2006 for cancellation of Will dated 28.01.1998 along with the application for temporary injunction to restrain the petitioner from selling, mortgaging or transferring the land in dispute till the final disposal of the suit. 3. The learned trial court under Order 39, Rule 1 and 2 Civil Procedure Code in Civil Misc. Application No.21/2006 passed an order dated 16.10.2007 that the parties till the decision of the suit, are restrained from mortgaging, selling and transferring the agricultural land in any manner and maintain the status quo of the site and the record. 4. The Respondent-Plaintiff submitted an application under Order 39, Rule 2A Civil Procedure Code before the learned Civil Judge, Rawatsar District Hanumangarh that the petitioner has flouted the stay order dated 16.10.2007 passed by the learned trial court and has mortgaged the land to Oriental bank of Commerce. 5. 4. The Respondent-Plaintiff submitted an application under Order 39, Rule 2A Civil Procedure Code before the learned Civil Judge, Rawatsar District Hanumangarh that the petitioner has flouted the stay order dated 16.10.2007 passed by the learned trial court and has mortgaged the land to Oriental bank of Commerce. 5. The learned trial court vide order dated 22.01.2015 allowed the application filed by the Respondent-plaintiff under Order 39, Rule 2A Civil Procedure Code and ordered three months civil jail to the petitioner for violation of the order dated 16.10.2007 passed by the trial court and for mortgaging the land in order to avail the loan from Oriental bank of Commerce (Branch Chohilawali, District Hanumangarh). 6. Thereafter, the petitioner against the order dated 22.01.2015 preferred an appeal before the learned Additional District Judge No.1, Nohar District Hanumangarh. The Learned Additional District Judge No.1 Nohar, District Hanumangarh vide order dated 29.08.2019 dismissed the appeal and affirmed the order dated 22.01.2015. Hence, this petition. 7. Learned counsel for the petitioner submits that the land i.e. Chak 1 JMW Stone No. 134/380 Killa No.19 to 25, was the self acquired land of father of the petitioner and the respondent i.e. Pema Ram, and he himself by his wish and volition, made a Will in favour of the petitioner on 28.01.1998. Learned counsel for the petitioner further submits that neither he had any knowledge of the stay order dated 16.10.2007 passed by learned Civil Judge, Rawatsar, District Hanumangarh and nor did the advocate of the petitioner gave any information about the same. Later on, when the petitioner got the information about the same, he was ready and willing to deposit the said loan amount to the Oriental Bank of Commerce and thereafter, he deposited the same. Learned counsel for the petitioner further contends that it is a bonafide mistake and when the petitioner got the information regarding the stay order dated 16.10.2007 granted by the learned Civil Judge, Rawatsar, the petitioner has requested the bank for releasing the land in question from mortgage but the bank refused to do so even when the petitioner was ready to deposit the loan amount to get the land released from mortgage and thus, made all possible efforts to rectify the bonafide mistake committed by him. 8. 8. Learned counsel for the petitioner further submits that he has not deliberately made the disobedience of the order dated 16.10.2007 and has tendered his unconditional apology before the learned trial court, but the trial court has not considered the same and has ordered for civil jail considering it to be the contempt of court order dated 22.01.2015. Learned counsel for the petitioner also submits that the respondent has failed to establish willful disobedience due upon the petitioner and the bank has also issued No Objection Certificate (NOC) dated 07.11.2019 in favour of the petitioner after the loan amount to the tune of Rs.1,03,934/- taken in lieu of the property in question was deposited. 9. In support of his contentions, learned counsel for the petitioner places reliance upon the judgment passed by a Coordinate Bench of this Court in the case of Dr. Vinod Gupta v. Smt. Sarojini K.K & Anr reported in 1995 DNJ (Raj) 283, relevant para of which is reproduced hereinbelow for the sake of ready reference:- "The request is reasonable and it is granted. The appellate Court shall decide the appeal against the interim order as early as possible, preferable......." 10. The learned counsel for the respondent-plaintiff submits that the petitioner-defendant made a forged will dated 28.01.1998 for the land Chak 1 JMW Stone No.134/380 Killa No.19 to 25 and as the Respondent-plaintiff got the information regarding the same then the respondents filed a suit for cancellation of will dated 28.01.1998 on 26.04.2006 along with an application for temporary injunction not to get the land recorded in petitioner's name and not to further mortgage, sell or transfer the land in question. 11. The respondent further submits that the petitioner has flouted the order dated 16.10.2007 and mortgaged the land in dispute to Oriental bank of commerce on 29.09.2009 and is liable for the contempt and violation of the stay order dated 16.10.2007 and therefore, the learned court below has rightly passed the impugned order dated 29.08.2019. 12. 11. The respondent further submits that the petitioner has flouted the order dated 16.10.2007 and mortgaged the land in dispute to Oriental bank of commerce on 29.09.2009 and is liable for the contempt and violation of the stay order dated 16.10.2007 and therefore, the learned court below has rightly passed the impugned order dated 29.08.2019. 12. This court is of the view that the petitioner has already tendered his unconditional apologies and has also been issued the No Objection Certificate (NOC) dated 07.11.2019 after the loan amount to the tune of Rs.1,03,934/- was deposited in lieu of the property in question mortgaged by him, thus, the status of the property in question for which the stay order dated 16.10.2017 was passed by learned Civil Judge Rawatsar District Hanumangarh has been restored back in terms of stay order dated 16.10.2017. 13. As the petitioner has deposited the complete loan amount and the property is released by the bank from mortgage, this Court deems it appropriate to quash and set aside the orders dated 22.01.2015 (Ann.1) passed by the learned Civil Judge Rawatsar, District Hanumangarh and 29.08.2019 (Ann.3) passed by the learned Additional District Judge No.1, Nohar District Hanumangarh. 14. The writ petition is allowed in the aforesaid terms. Stay application as well as all other pending applications, if any, also stand disposed of.