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2024 DIGILAW 302 (HP)

Shanta Devi v. Tilak Raj

2024-04-30

VIRENDER SINGH

body2024
JUDGMENT : Virender Singh, J. Applicant Shanta Devi has filed the present application, under Order 39 Rule 2A CPC, read with Section 151 CPC, for passing appropriate orders, against the non-applicants for violating/flouting the orders, passed by this Court in CMP No. 10914 of 2020, on 5.8.2021. 2. The application has been filed on the ground that the applicant has preferred the present appeal, which was admitted by this Court, on 12.10.2020, on the following substantial questions of law: i) Whether impugned judgments and decrees are the result of total misreading and mis appreciation of the evidence, oral and documentary, adduced on record by respective parties? ii) Whether the learned trial Court and first appellate Court have dis-regarded the mandate of Order 20 Rule 5 CPC by clubbing the issues No. 1 to 4 despite the fact that the same were independent of each other? 3. According to the applicant, alongwith the said appeal, she has filed CMP No. 10914 of 2020, under Order 41 Rule 5 and Order 39 Rules 1 and 2 CPC, read with Section 151 CPC, for staying operation and execution of judgment and decree, dated 15.1.2019. The order dated 1.3.2021, passed in CMP No. 10914 of 2020 is reproduced as under: “By way of instant application, filed under Order XLI Rule 5 and Order XXXIX Rules 1 and 2 CPC read with Section 151 CPC, prayer has been made on behalf of appellant for staying the operation and execution of judgment and decree dated 15.1.2019, passed by learned Additional District Judge-I, Kangra at Dharamshala in Civil Appeal No. 31-D/XIII/2018, restraining the non-applicants from interfering in the suit land, in any manner, whatsoever. Learned counsel for the respondents prays for and is granted three weeks’ time to file reply to the application. In the meanwhile, parties to the lis are directed to maintain status quo qua the nature and possession of the suit property.” 4. Learned counsel for the respondents prays for and is granted three weeks’ time to file reply to the application. In the meanwhile, parties to the lis are directed to maintain status quo qua the nature and possession of the suit property.” 4. The said application has ultimately been decided by this Court on 5.8.2021, by passing the following order: “By way of instant application filed under Order 41 rule 5 and Order 39 Rule 1 & 2, read with Section 151 CPC, prayer has been made on behalf of the applicant for staying the execution and operation of the impugned judgment and decree dated 15.01.2019, passed by learned Additional District Judge-I, Kangra at Dharamshala, in Civil Appeal No.31-D/XIII/2018 and restraining the non-applicants/respondents from interfering in the suit land, in any manner. Since, despite sufficient opportunities, no reply has been filed to the aforesaid application, judgment as detailed hereinabove, passed by learned Additional District Judge-I, Kangra at Dharamshala, is stayed and during the pendency of appeal, parties are directed to maintain status quo qua nature and possession of the suit property. Alteration/Vacation/Modification on motion. Application stands disposed of.” 5. It is the further case of the applicant that the subject matter of the lis is joint between the parties, alongwith co-sharers, whereas, non-applicant No. 1 is adamant in nature and has no respect for law. He has raised construction of new house, cow shed and bathroom, over the land comprising khasra Nos. 805 and 803, in which, applicant is stated to be co-sharer. This has been done by non-applicant No. 1, despite the specific order, qua the suit property, passed by the learned trial Court. 5.1 Not only this, non-applicant No. 1 is stated to have violated the orders, passed by this Court on 5.8.2021, and again started construction over the already constructed structure. 5.2 According to the applicant, the said order has been violated by non-applicant No. 1 intentionally and willfully. Alongwith the application, photographs have also been annexed. 6. When, put to notice, the application has been contested by non-applicant No. 1. However, factual position, as asserted in the application, has not been disputed, regarding filing of the appeal, as well as, passing of the status quo order, dated 1.3.2021. Alongwith the application, photographs have also been annexed. 6. When, put to notice, the application has been contested by non-applicant No. 1. However, factual position, as asserted in the application, has not been disputed, regarding filing of the appeal, as well as, passing of the status quo order, dated 1.3.2021. 6.1 So far as the allegations of raising construction, after passing the status quo order, passed by this Court, are concerned, it is the case of non-applicant No. 1 that the construction, whatsoever raised by him, was prior to filing of the suit, and no new construction, as alleged, has ever been raised by him. 6.2 Relying upon the photographs, annexed with the application, by the applicant, it has been pleaded that bare perusal of these photographs also demonstrate that half built brick wall is there over the lintel of the house, which was started by him, after dismissal of the appeal, by the learned First Appellate Court. The application is stated to be filed with a view to harass the non-applicants. Rest of the allegations have been denied by the non-applicants. 6.3 The applicant has filed rejoinder, denying the stand, on the basis of which, the application has been contested. 7. From the pleadings of the parties, the following issues were framed, by this Court, vide order dated 2.9.2022: 1. Whether the respondents have deliberately and intentionally disobeyed the orders passed by this Court? OPA 2. If issue No. 1 is affirmative, what relief the applicant is entitled and what action respondents are required to put? OPA 3. Whether the application is not maintainable? OPR 4. Relief. 8. Thereafter, parties to the lis were directed to adduce evidence. Consequently, parties have led their oral, as well as, documentary evidence. 9. After closure of evidence, learned counsel for the parties were heard. REASONS FOR FINDINGS Issues No. 1 & 2 10. Both are interlinked and inter connected. After framing of issues, applicant Shanta Devi has examined Nripender, who is her General Power of Attorney. On the basis of General Power of Attorney, Ext. AW1/A, he has deposed about the factual position as to how the applicant has filed the Regular Second Appeal, in the year 2019 and also filed an application for stay, in which, this Court has passed the order, with regard to status quo, in the month of March, 2022. On the basis of General Power of Attorney, Ext. AW1/A, he has deposed about the factual position as to how the applicant has filed the Regular Second Appeal, in the year 2019 and also filed an application for stay, in which, this Court has passed the order, with regard to status quo, in the month of March, 2022. The status quo order is stated to have been confirmed in the month of August, 2022. He has proved the orders dated 1.3.2021 and 5.8.2021, Mark- A and Mark-B. It is his further deposition that despite specific order, passed by this Court, construction work was carried out on the spot, in the month of April, 2022. According to his further deposition, he has clicked the photographs in his mobile phone and got them developed. He has proved the photographs Mark-C to Mark-E. Thereafter, some construction was raised in the year 2021 and remaining construction was raised in the year 2022. Lastly, he has deposed that construction of wall has been completed, but no slab was put. 10.1. In the cross-examination, this witness has deposed that he is working as Work Inspector, HPPWD, Shahpur. The factual position, with regard to dismissal of the suit, by the learned trial Court, as well as, dismissal of the appeal, by the learned First Appellate Court, has not been disputed, by him. This witness however admitted that he has not supplied the copy of status quo order, passed by this Court, to the non-applicants. He has again stated that copy of the order in question was supplied to the Pradhan of the Panchayat. No written complaint was filed by this witness or by his mother, before the Pradhan. He could not remember whether any complaint in written was given to any authority. However, according to him, a written complaint to the Police was made, with regard to construction, being carried out, by him, after passing of the status quo order. But, no one has visited the spot. He has feigned his ignorance whether this fact has been mentioned in application filed under Order 39 Rule 2-A CPC. He has admitted that in the photorgraphs Mark-C to Mark-E, the date has not been mentioned, nor any bill has been placed on record, qua getting the photographs developed. But, no one has visited the spot. He has feigned his ignorance whether this fact has been mentioned in application filed under Order 39 Rule 2-A CPC. He has admitted that in the photorgraphs Mark-C to Mark-E, the date has not been mentioned, nor any bill has been placed on record, qua getting the photographs developed. Lastly, he has feigned his ignorance that permission has been granted by the Court to non-applicants to carry out repairs of their property, which is required to save the same. He has denied rest of the suggestions. 11. AW-2 is Mahesh Kumar. He has deposed that his house is situated at a distance of 100 meters from the house of the applicant. He has further deposed that some dispute had arisen between them, with regard to land. However, he could not spell out the exact dispute, arisen between the parties. But, according to him, some construction has been raised by the non-applicants, on the upper story of the house, in April, 2022. The construction is stated to be still going on. This witness has also stated that he is driver by profession. He could not disclose about the khasra Nos., upon which, the alleged construction is being raised. He has further deposed that he was not being called to the spot, by any of the parties. The construction, shown in the photographs Mark-C to Mark-E is stated to have been carried out, in the month of April, 2022. The entire construction work, in the photographs Mark-C to Mark-E has been raised in his presence. This witness is not a summoned witness. However, he came alongwith AW-1. Lastly, he has admitted that he was asked by AW-1 and his mother to make statement in the Court. 12. AW-3 is Ved Prakash. He has deposed that in the month of April, 2022, the construction of upper story was carried out by the non-applicant/respondent. This witness is working in HPPWD. Like, AW-2, he is also not a summoned witness and has been asked to depose in Court, at the behest of applicant. 13. To rebut his evidence, non-applicant has examined Joginder Singh, who, after perusing the photographs Mark-C to Mark-E and Mark-F to Mark-J, has stated that construction shown in the photographs, was raised, prior to the year 2018. Like, AW-2, he is also not a summoned witness and has been asked to depose in Court, at the behest of applicant. 13. To rebut his evidence, non-applicant has examined Joginder Singh, who, after perusing the photographs Mark-C to Mark-E and Mark-F to Mark-J, has stated that construction shown in the photographs, was raised, prior to the year 2018. However, he could not disclose about the month, in which, the construction, shown in the photographs, was raised, nor he could disclose the khasra No., upon which, house shown in the photograph, is situated. This witness is also not aware about the status quo order, passed by this Court. 14. RW-2 Akhil Kumar Sharma has deposed that the construction, shown in the photographs, was raised prior to the year 2018. 15. This is the entire evidence, led by the parties. 16. In this case, on 1.3.2021, status quo order, as re-produced above, was passed by this Court. 17. This order was made absolute on 5.8.2021. In order to take action, against the non-applicants, for willful disobedience of the orders, passed by this Court, the applicant is bound to prove the same beyond shadow of doubt. 18. The proceedings under Order 39 Rule 2-A CPC are quasi criminal in nature, and in case the applicant is able to prove the willful disobedience of the order in question, then, strict action is required to be taken against the persons, who have violated the order. “sine quo non” for taking action is willful disobedience. 19. The status quo order qua nature and possession of suit land has been passed by this Court. The meaning of term ‘status quo’ is the situation that currently exists or the existing state of things, at any given point of time. The term ‘Status Quo’ has elaborately been discussed by the Hon’ble Supreme Court in Messrs Bharat Coking Coal Limited versus State of Bihar & others, reported in 1987 (Supp) Supreme Court Cases, 394. Relevant paragraph-5 of the judgment is reproduced as under: “5. The expression 'status quo' is undoubtedly a term of ambiguity and at times gives rise to doubt and difficulty. According to the ordinary legal connotation, the term 'status quo' implies the existing state of things at any given point of time. The qualifying words 'as in the High Court clearly limit the scope and effect of the status quo order. The expression 'status quo' is undoubtedly a term of ambiguity and at times gives rise to doubt and difficulty. According to the ordinary legal connotation, the term 'status quo' implies the existing state of things at any given point of time. The qualifying words 'as in the High Court clearly limit the scope and effect of the status quo order. In the present case, the High Court determined only one question, namely, that slurry was not coal or mineral. It refrained from entering into the question of right or title of the parties on the ground that it involved investigation into disputed questions of facts. Therefore, apart from the abstract question that slurry was not coal or mineral, the impugned judgment does not adjudicate upon the rights of the parties. Viewed from that angle, it is obvious that status quo as in the High Court cannot mean anything else except status quo as existing when the matter was pending in the High Court before the judgment was delivered. Both the parties understood the scope and effect of the status quo order as meaning the state of things existing while the writ petition was still pending i.e. till the delivery of the judgment by the High Court. Respondent 4 moved the High Court in Cri. M.P. No. 4841/86(8) without impleading the appellant herein and obtained the impugned order from the High Court dated January 3, 1987 which we have vacated. The proper course for respondent 4 to have adopted was to have approached this Court to seek clarification, if he had any doubt as to the meaning and effect of the status quo order. We highly deprecate the conduct of respondent 4 for having approached the High Court and obtained the impugned order by suppressing the fact that this Court had passed the status quo order. Even so, strictly speaking, no case for contempt is made out on the plain terms of the status quo order. The parties were relegated back to the position that obtained while the writ petition was pending. They were therefore subject to the order passed by the High Court dated January 15, 1985. No other conclusion is possible looking to the terms of the status quo order.” 20. The parties were relegated back to the position that obtained while the writ petition was pending. They were therefore subject to the order passed by the High Court dated January 15, 1985. No other conclusion is possible looking to the terms of the status quo order.” 20. The term ‘Status Quo’ has been defined in Wharton’s Law Lexicon, 14th Edition, as under” “the existing state of things at any given date; e.g., Status quo ante bellum, the state of things before the war.” 21. If the facts and circumstances of the present case are seen, in view of above, there is no evidence on the file to show that what was the situation at the spot, on the date when the status quo order was passed, in this case. 22. No evidence has been adduced by the applicants to show that the alleged construction was raised by the non-applicants, after 1.3.2021. The evidence of the GPA of the applicant Shanti Devi, is too short to prove that the construction was raised after passing the status quo order. The photographs, which are proved by this witness, rather supports the case of the non-applicants, qua the fact that whatsoever construction, was raised prior to the passing of status quo order, by this Court. 23. When, the status quo order was passed by this Court, no efforts have been made by the applicant to bring the factual position, existing on the spot, on that date, on record, by making an application for appointment of Local Commissioner. 24. In the absence of factual position, as exits on the spot on the date when the interim order was passed, no inference can be drawn that the alleged construction, as depicted in the photographs, was raised by the non-applicants, after 1.3.2021. Even in these photographs, half constructed house has been depicted. In the absence of any evidence on record to show the position, as on 1.3.2021, no inference can be drawn, with regard to willful disobedience of the orders, passed by this Court on 1.3.2021 and confirmed on 5.8.2021. 25. With these observations, Issues No. 1 & 2 are decided against the applicant and in favour of respondent. Issue No. 3 26. In view of my above findings upon Issues No. 1 and 2, the present application is not maintainable. This issue is decided in favour of the respondent and against the applicant. Relief 27. 25. With these observations, Issues No. 1 & 2 are decided against the applicant and in favour of respondent. Issue No. 3 26. In view of my above findings upon Issues No. 1 and 2, the present application is not maintainable. This issue is decided in favour of the respondent and against the applicant. Relief 27. In view of my findings on issues No. 1 to 3 above, the present application is dismissed.