Smt. Vidya Kumari Sahi vs Shri Anand Kumar Agrawal And 6 ...
2022 Latest Caselaw 5773 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

  Reserved on 27.01.2022
 
                                                                               Delivered on 04.07.2022
 

 
Case :- CONTEMPT APPLICATION (CIVIL) No. - 5141 of 2021
 

 
Applicant :- Smt. Vidya Kumari Sahi
 
Opposite Party :- Shri Anand Kumar Agrawal And 6 Others
 
Counsel for Applicant :- Ved Prakash Singh,Sr. Advocate,Vishakha Pande
 

 
Hon'ble Saral Srivastava,J.

1. Heard Sri Rakesh Pande, learned Senior Counsel assisted by Ms. Vishakha Pande, learned counsel for the applicant through video conferencing.

2. The applicant has alleged the violation of the judgment and order dated 08.03.2021 passed by Civil Judge (Senior Division) F.T.C. in Original Suit No.145 of 1980.

3. The case of the applicant is that the applicant had instituted an Original Suit No.145 of 1980 (Vidya Kumar Sahi Vs Shushil Kumar Duggal & Ors.) praying for a decree of permanent injunction restraining the defendants from interfering with the possession of the plaintiff-applicant on the disputed property described in the plaint and from obstructing and making any construction on the said property.

4. The defendants in the suit filed their written statement, but thereafter stopped contesting the suit, accordingly, the trial Court passed an order on 04.12.2019 to proceed ex-parte against the defendants. The suit was decreed ex-parte on 08.03.2021.

5. It is alleged that during the pendency of the suit, the defendants executed several sale deeds in favour of M/s Rudra Real Tech. Private Limited, J.C. deal Company Private Limited and Shri Shyam Builders and Developers. It is stated that the vendees had knowledge in respect to the fact that the applicant was in possession of the disputed property and there was litigation between the vendor and the applicant pending in the Court. Further, case of the applicant is that one of the defendants in Original Suit No. 145 of 1980 Smt. Usha Singh instituted a case No.6 of 1999 before the Sub-Divisional Magistrate, Dakshinee Varanasi arraying the applicant as defendant no.1 for partition and declaration in respect to plot no.138. The said case was dismissed in default by the Deputy Collector by order dated 13.09.2017.

6. It is stated that the Rudra Real Tech Private Limited filed an Original Suit No.605 of 2021 for permanent injunction praying for a decree of injunction restraining the defendants from forcibly occupying the disputed property. The applicant has also been impleaded in the said suit and ex-parte injunction order was passed. On the basis of said injunction order, the opposite party no.1 approached the District Magistrate with an application alleging that the opposite party no.1 is in possession over the Plot No.138/2 and applicant had no relation whatsoever with the plot and applicant has tried to forcibly occupy the land on 26.07.2021. On the said application, the District Magistrate passed an order to provide police force for facilitating the conciliation of dispute on payment. It is alleged that the authorities are colluding with the opposite party no.1 and other opposite parties and are trying to forcibly dispossess the applicant. In the aforesaid backdrop, the applicant has prayed for the aforesaid relief.

7. Learned Senior Counsel contended that it is evident from the record that the applicant is in possession of the disputed property which fact is established from the fact that a decree of injunction has been passed in favour of the applicant in Original Suit No.145 of 1980. It is submitted that as the judgment and decree dated 08.03.2021 has not been assailed in appeal, therefore, the same has attained finality and as the vendee of the disputed property has stepped into the issues of the defendants in Original Suit No.145 of 1980, therefore, they are bound by the decree, hence, the attempt made by the opposite parties to dispossess the applicant is in violation of judgment and decree dated 08.03.2021 in Suit No.145 of 1980. It is submitted that the opposite party no.1 on the basis of ex-parte temporary injunction order are trying to dispossess the applicant from disputed property in collusion with the administrative authorities which is evident from the fact that the District Magistrate has passed an order to provide police force on payment of charges, and this conduct of the authorities indicate that the administrative authorities, impleaded as opposite party no.5 to 7, are also in collusion the opposite party and as such they are liable to be punished for committing violation of the judgment and decree dated 08.03.2021 in Original Suit No.145 of 1980.

8. Be that as it may, the record reflects that an ex-parte decree has been passed vide judgment and decree dated 08.03.2021 in favour of the applicant in Original Suit No.145 of 1980. The record further reveals that several sale deeds have been executed during the pendency of the civil suit by the defendants of the Original Suit No.145 of 1980. Perusal of the sale deed discloses that there is recitation to the effect that litigation between the applicant and the vendor is pending in Court. The vendor is in possession over the disputed property and in all the cases compromise have been arrived at between the parties.

9. Now applicant alleges that he is in possession over the property in dispute and to buttress the said submission, he has placed reliance upon the judgment and decree dated 08.03.2021 to contend that a decree for injunction can only be passed if the plaintiff is in possession over the disputed property. The perusal of the judgment and decree dated 08.03.2021 in Original Suit No.145 of 1980 shows that trial Court has framed 15 issues. The issue no.1 was whether the plaintiff is owner in the possession of the suit property. The judgment reveals that though the trial Court has decided the issue no.1 in favour of the applicant but there is no specific finding returned by the trial Court holding that the plaintiff (applicant) is in possession of the suit property. The record further reveals that the opposite party no.1 has instituted an Original Suit No.605 of 2021 in which they have obtained temporary injunction and on the basis of temporary injunction order they are claiming possession over the disputed property.

10. In such view of the fact, there is disputed question of fact as to whether the applicant is in possession over the disputed property or not. Further, the opposite parties are claiming the possession on the strength of temporary injunction order passed in Original Suit No.605 of 2021 and, therefore, in the facts of the present case it cannot be concluded that there was a deliberate and wilful disobedience on the part of opposite parties in violating the judgment and decree dated 08.03.2021. It is pertinent to note that if the applicant believes that the judgment and decree dated 08.03.2021 in Original Suit No.145 of 1980 is not being complied with, he has a remedy of filing execution application under Order 21 Rule 32 CPC and therefore, in the opinion of the Court no case for contempt is made out.

11. So far as the judgment in the case of Cantonment Executive Officer, Cantonment Board, Meerut and Ors. Vs. Pushpa Devi and Ors., 2014 (3) ADJ 243 relied upon by the learned counsel for the applicant is concerned, the same is not applicable in the facts of the present case inasmuch as this Court in the said case was considering the violation of the stay order passed by this Court in First Appeal From Order No. 298 of 1995.

12. For the reasons given above, this Court finds that there is no merit in the present contempt application and accordingly the contempt application is dismissed and is consigned to record.

Order Date :-04.07.2022

Mohit

(Saral Srivastava,J.)