Sharda Devi vs Rajendra Kumar
2021 Latest Caselaw 16066 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 13690/2021

Sharda Devi W/o Shri Kishanlal Ji Swami, Aged About 58 Years, Resident Of Old BST College, In Front Of Astha Tent House, Pugal Road, Bikaner.

----Petitioner Versus

1. Rajendra Kumar S/o Late Bulakidas, Resident Of Near Hanuman Temple, Swamiyo Ka Mohalla, Inside Jasusar Gate, Bikaner.

2. SHO, Police Station- Naya Shahar, Bikaner.

                                                                ----Respondents


For Petitioner(s)         :     Mr. Nishank Madhan
For Respondent(s)         :     Mr. H.S. Shrimali



                    JUSTICE DINESH MEHTA

                                    Order

23/10/2021

1. The present writ petition is directed against the order dated

07.09.2021, passed by the learned Additional Civil Judge No.2,

Bikaner (hereinafter referred to as "the trial Court") in Application

No.22/2021.

2. Precisely stated, facts appertain are that the petitioner

instituted a suit for injunction along with an application for grant

of temporary injunction.

3. In the application for temporary injunction, an ad-interim

order in her favour was passed on 21.11.2020, whereby the Court

required the parties to maintain status quo, while recording a

prima-facie finding that the petitioner (plaintiff) is having

possession over the disputed land.

                                            (2 of 4)                [CW-13690/2021]



4.   According    to     the      petitioner,         the   respondent   forcefully

dispossessed     her     after     the      above       referred   order   (dated

21.11.2020) of status quo.             Therefore the petitioner moved an

application before the learned trial Court under Section 151 of the

Code of Civil Procedure on 25.02.2021 and requested the Court to

restore the possession.

5. Petitioner's aforesaid application has been rejected by the

trial Court, inter-alia, observing that the petitioner has remedy to

file contempt petition under Order XXXIX Rule 2(A) of the Code

and in which, if deemed appropriate, the Court can restore

possession. But according to the Court below, the application

under Section 151 of the Code was not maintainable.

6. Mr. Madhan, learned counsel for the petitioner argued that

the inherent powers of the Court under Section 151 of the Code

are unfettered and under such powers the trial Court is vested

with the power even to restore the possession of the petitioner,

who has been dispossessed during the pendency of the suit in

question.

7. In support of the contention, learned counsel relied upon the

judgment of Hon'ble the Supreme Court in the case of Meera

Chauhan Vs. Harsh Bishnoi & Anr. : 2007(2) Civil Court Cases 001

(S.C.) and submitted that the learned trial Court had the power to

restore petitioner's possession and petitioner's application has

been wrongly rejected.

8. Mr. H.S. Shrimali, learned counsel for the respondents, on

the other hand, argued that the petitioner is in possession and the

respondents have not dispossessed her, as has been claimed.

9. Be that as it may.

(3 of 4) [CW-13690/2021]

10. In the opinion of this Court, the learned trial Court has erred

in rejecting petitioner's application under Section 151 of the CPC

and requiring her to file a contempt petition under under Order

XXXIX Rule 2(A) of the Code.

11. The power and scope of the contempt petition under Order

XXXIX Rule 2(A) of the Code is entirely different under which, the

Court can punish the respondent/aggressor/encroacher, who has

illegally dispossessed the plaintiff or a party contrary to injunction

or has violated the interim order passed by the trial Court.

12. However, restoration of possession cannot normally be

ordered in contempt petition.

13. Hon'ble the Supreme Court in Meera Chauhan (supra) has

held thus:-

"18. At the same time, it is also well settled that when parties violate order of injunction or stay order or act in violation of the said order the Court can, by exercising its inherent power, put back the parties in the same position as they stood prior to issuance of the injunction order or give appropriate direction to the police authority to render aid to the aggrieved parties for the due and proper implementation of the orders passed in the suit and also order police protection for implementation of such order."

14. In view of the discussion foregoing and in light of the

judgment of Hon'ble the Supreme Court in Meera Chauhan

(supra), the writ petition succeeds.

15. The impugned order dated 07.09.2021, passed by learned

trial Court is hereby quashed and set aside.

16. The application filed by the petitioner is restored in the

docket of the trial Court.

(4 of 4) [CW-13690/2021]

17. The trial Court shall consider the application afresh, in

accordance with law and pass appropriate order.

18. Stay petition also stands disposed of accordingly.

(DINESH MEHTA),J 96-Ramesh/-

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