Jharkhand High Court
Md. Saif Raza vs Md. Ishaque on 9 April, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.M.P. No. 85 of 2021
1. Md. Saif Raza
2. Sayeeda Shehnaz
3. Atif Raza
4. Kasif Raza
5. Tausif Raza
..... ... Plaintiffs/Appellants/Petitioners
Versus
Md. Ishaque .... .... Defendant/Respondent
CORAM : HON'BLE MR. JUSTICE RAJESH SHANKAR
For the Petitioners :- Mr. Indrajit Sinha, Advocate
For the Respondent :-
Order No. 03 Dated: 09.04.2021
The present case is taken up today through Video conferencing.
2. The present Civil Miscellaneous Petition has been filed for the
following reliefs:
(a) For quashing the judgment dated 21.01.2021 (Annexure-11
to the writ petition) passed by the Principal District Judge, East
Singhbhum at Jamshedpur in Civil Miscellaneous Appeal No. 03
of 2018 whereby the said appeal filed against the order dated
04.01.2018 passed by the Civil Judge (Sr. Division)-I,
Jamshedpur in T(P)S No. 222 of 2016 rejecting the petitioners'
application filed under Order XXXIX Rules 1 and 2 read with
Section 151 of the Code of Civil Procedure (CPC) in T(P)S No.
222 of 2016 seeking grant of temporary injunction, has been
dismissed.
(b) For quashing the order dated 04.01.2018 (Annexure-4 to
the writ petition) passed by the Civil Judge (Sr. Division)-I,
Jamshedpur in Title(Partition)Suit No. 222 of 2016 whereby the
application filed by the petitioners under Order XXXIX Rules 1
and 2 read with Section 151 of CPC seeking grant of temporary
injunction has been rejected.
(c) Upon quashing of the judgment dated 21.01.2021 and order
dated 04.01.2018, for issuance of direction upon the
respondent and others to restrain them from alienating/carrying
construction work in relation to the properties mentioned in
Schedule 'A' and 'B' of the plaint filed in Title (Partition) Suit No.
222 of 2016 during the pendency of the suit.
3. Having heard the learned counsel for the parties and on perusal of the
record, it emerges that the petitioners/plaintiffs filed an application on
15.05.2017 under Order XXXIX Rules and 1 and 2 read with Section 151 of
C.P.C. before the original court in T(P)S No. 222 of 2016 seeking temporary
injunction restraining the defendant from making any construction over the
Schedule 'B' suit property till disposal of the said suit and for directing him to
maintain status quo over the said property. The said application of the
plaintiffs/petitioners was rejected by the original court vide order dated
04.01.2018. Aggrieved therewith, the petitioners preferred Civil
Miscellaneous Appeal No. 03 of 2018 before the Principal District Judge, East
Singhbhum, Jamshedpur. During pendency of the said miscellaneous appeal,
the petitioners came to know that the suit land was transferred by the
defendant in the name of Halim Ahmad and thereafter he was also made
defendant in the said suit vide order dated 09.05.2019. Subsequently, the
petitioners filed another application on 06.09.2019 under Order XXXIX Rules
1 and 2 read with Section 151 of CPC seeking temporary injunction against
the defendant no. 2-Halim Ahmad from changing the nature of the entire
suit property i.e. Schedule 'A' property by making any further construction
over the same as well as for directing the said defendant to maintain status
quo over the Schedule 'A' property. The said application was also rejected by
the original court vide order dated 09.12.2019. Thereafter, the petitioners
aggrieved with this order, filed another appeal before the Principal District
Judge, East Singhbhum, Jamshedpur which was registered as Civil
Miscellaneous Appeal No. 20 of 2019. Both the miscellaneous appeals i.e.
Civil Miscellaneous Appeal No. 03 of 2018 and Civil Miscellaneous Appeal No.
20 of 2019 were dismissed by the Principal District Judge, East Singhbhum,
Jamshedpur vide impugned judgment dated 21.01.2021.
4. According to the learned counsel for the petitioners, two civil
miscellaneous petitions including the present one have been filed by the
petitioners before this Court primarily for the reason that both the appeals
filed by them against the orders of the original court i.e. 04.01.2018 and
09.12.2019 rejecting the petitioners' application filed under Order XXXIX
Rules 1 and 2 read with Section 151 of the CPC, have been dismissed by the
Principal District Judge, East Singhbhum, Jamshedpur vide common
judgment dated 21.01.2021 passed in Civil Miscellaneous Appeal No. 03 of
2018 along with Civil Miscellaneous Appeal No. 20 of 2019.
5. Under the aforesaid factual context, this Court is of the view that
the initial application filed by the plaintiffs/petitioners on 15.05.2017
which was rejected by the original court vide order dated 04.01.2018,
had already become infructuous during the pendency of the Civil
Miscellaneous Appeal No. 03 of 2018 itself as due to subsequent
development, they had already filed another application under Order
XXXIX Rules 1 and 2 read with Section 151 of the CPC on 06.09.2019. The
order impugned also suggests that the learned appellate court only
considered the order dated 09.12.2019 passed by the original court
rejecting the second application of the petitioners filed on 06.09.2019.
6. This Court, today itself i.e. 09.04.2021, has already issued notices
to the defendants/respondents in C.M.P. No. 84 of 2021 which has been
filed by the petitioners challenging the judgment dated 21.01.2021
passed in Civil Miscellaneous Appeal No. 20 of 2019. Hence, the
judgment dated 21.01.2021 passed by the learned appellate court
wherein the order dated 04.01.2018 passed by the original court was put
to challenge, requires no consideration by this Court as the petitioners'
application dated 15.05.2017 had already been infructuous during
pendency of Civil Miscellaneous Appeal No. 03 of 2018 due to filing of
another application dated 06.09.2019 on the ground of subsequent
development.
7. The present C.M.P. is accordingly disposed of with aforesaid
observation.
(Rajesh Shankar, J.)
Ritesh/-
