Delhi District Court
Ratan Lal @ Pinki vs Vasdev on 13 September, 2017
In The Court of Rakesh KumarIII
Additional District Judge01 (East)
Karkardooma Courts, Delhi
MCA No.33/17
In the matter of :
Ratan Lal @ Pinki
S/o Sh. Bhagwan Dass
R/o A24, 2nd Floor
Gali No.8, Pratap Nagar
Mayur ViharI
New Delhi .....Appellant/Defendant
Versus
Vasdev
S/o Sh. Bhagwan Dass
F1/20, 2nd Floor
Lajpat Nagar
Delhi100085 .....Respondent/Plaintiff
Appeal instituted on : 25.08.2017
Reserved for order on : 12.09.2017
Judgment announced on : 13.09.2017
JUDGMENT
1. This is an appeal directed against the order dated 10.08.2017 on application U/o 39 rule 2A CPC passed by the court of Shri J P Nahar, Ld. SCJ, East, KKD, Delhi.
2. Brief facts of the case are that the appellant and respondent are real brothers and respondent being owner of second floor of property bearing No.A24, Gali No.8, Pratap Nagar, Mayur Vihar, Delhi92 agreed to sell the same to the appellant for a total sale consideration of Rs.2.50 lacs and appellant paid an advance money of Rs.1 lac to the respondent on 10.11.2005 and the respondent had handed over the vacant physical possession MCA No.33/17 Page No.1 of 6 of the suit property in the month of November 2005 and since then the appellant is in sole and exclusive occupation and possession of the suit property. It is stated that the appellant had requested the respondent to execute the sale documents but the respondent did not execute the same and the appellant had sent a legal notice dated 26.06.2008 calling him to execute the sale deed but despite the service of the notice, the documents were not executed. It is stated that vide order / judgment dated 09.06.2014 ld. Trial court passed the judgment in favour of the appellant directing the respondent to execute the title documents but the said judgment was challenged before the Appellate Court and the Appellate Court vide judgment dated 09.06.2014 set aside the judgment of trial court and the Appellate Court passed a decree of Rs.1 lac in favour of the appellant in lieu of the consideration amount received by the respondent herein. It is stated that appellant aggrieved by the order of the Ld. Appellate Court, challenged it before the Hon'ble High Court and Hon'ble High Court vide its judgment dated 20.02.2015 upheld the order of Ld. Appellate Court. SLP was preferred challenging the order of Hon High Court but the said SLP was also decided against the appellant, however possession of the suit property remained with the appellant.
3. It is stated that in the meanwhile, the respondent filed the suit for permanent and mandatory injunction and an application U/o 39 rule 1&2 CPC was also moved and the said application was allowed in favour of the respondent herein and that order was challenged before Ld. District & Sessions Judge, MCA No.33/17 Page No.2 of 6 Karkardooma but Ld. District & Sessions Judge dismissed the appeal vide order dated 29.11.2016. It is submitted that an application U/o 39 rule 2A CPC was also moved by the present respondent and the said application was put up with the connected case on 04.07.2017 and on that day new counsel was engaged and he appeared before Ld. SCJ and sought time to file the reply and case was adjourned for 10.08.2017 for arguments on the said application. It is submitted that on 10.08.2017, ld. Counsel for appellant got struck in the traffic jam and he reached the court at around 12.30 PM and he came to know that the said application U/o 39 rule 2A CPC has been allowed by Ld. Sr. Civil Judge and was pleased to pass order of warrant of free access in favour of the respondent / plaintiff and against the appellant / defendant by breaking open the locks and that order is challenged by way of present appeal on the grounds that the order is illegal, perverse, arbitrary and misconceive, passed without following the principle of "audi alteram partem" and liable to be set aside.
4. On notice, the respondent appeared alongwith his counsel but reply to the appeal was not filed.
5. I have heard ld. counsels for the parties and gone through the records carefully.
6. Ld. Sr. Civil Judge passed order on an application U/o 39 rule 1&2 CPC on 05.05.2016 restraining the defendant and his agents from causing obstruction / hindrance to the plaintiff in access of his suit property bearing No.A24, Second Floor, Gali No.8, Pratap Nagar, Mayur Vihar PhaseI, Delhi and further MCA No.33/17 Page No.3 of 6 directed the defendant not to obstruct free flow of main passage / main entrance of the suit property for the plaintiff and his family members. This order was challenged by the defendant before Ld. District & Sessions Judge Sh. Talwant Singh but the order was confirmed vide order dated 29.11.2016. It is necessary to mention here that appellant herein had filed a suit for specific performance against the respondent namely Vasudev with respect to the above mentioned property which was allowed by the trial court but the decree was set aside by Ld. ADJ Sh. P K Matto but money decree of Rs.1 lac alongwith interest @ 6% p.a. was passed against present respondent. This order was challenged by Sh. Rattan Lal vide RSA No.219/14 and Hon'ble Justice Sh. J R Midha held that plaintiff therein was never willing to perform his part of agreement. Therefore the RSA was dismissed vide order dated 20.02.2015. Against the aforesaid order of Hon'ble High Court, appellant Sh. Ratan Lal went in SLP before the Hon'ble Supreme Court and the SLP was dismissed vide order dated 16.07.2015 mentioning that there is no illegality or invalidity in interfering with the order of Hon'ble High Court.
7. The present appeal was filed on 25.08.2017 and was assigned to this court. On receiving the file, the court ordered for issuance of notice of appeal to respondent for 16.01.2018. The application was moved for early hearing U/s 151 CPC on behalf of appellant on 07.09.2017 and notice of the said application was given to respondent for 12.09.2017 and the previous date fixed i.e. 16.01.2018 was cancelled. The counsel MCA No.33/17 Page No.4 of 6 for respondent appeared and he stated that he does not want to file reply and he will straightaway argue the appeal and therefore the arguments on appeal heard.
8. I have perused the record and impugned order dated 10.08.2017 passed by Sh. J P Nahar, Ld. Sr. Civil Judge, East whereby the court has ordered for breaking open of locks if any, causing obstruction, hindrance in such access in the suit property to the plaintiff. Ld. Counsel for appellant submitted that matter is urgent and execution is fixed before the trial court for 15.09.2017 and he further requested to hear the matter at the early stage otherwise the appeal will become infructuous. He further submitted that order 39 rule 2A CPC does not allow the court to pass such order. It is correct that order 39 rule 2A CPC provides the attachment of the property of the person to disobey the order of the court and further there is provision of civil imprisonment but the courts are not helpless in getting the order implemented passed by the court on merits. Section 151 CPC empowers the court to see that its orders are enforced. Ld. Counsel for the respondent has cited Sh. S K Yousuf and Others v. Shaik Madhar Sahib, AIR 2003 Andhra Pradesh 44 wherein it is held by the Hon High Court that "it is true that order 39 rule 2A of the Code deals with consequence of disobedience or breach of injunction. But it does not mean that the court below is not competent to provide police protection in exercise of its inherent powers U/s 151 of the Code. When once an injunction order is not carried out, it is always open for the MCA No.33/17 Page No.5 of 6 parties to seek police protection to see that the said order is properly implemented. Therefore, I do not find any error in the order of the Ld. Principal Junior Civil Judge".
9. Ld. Counsel for respondent has cited Papanna v. Nagachari, AIR 1996 Karnataka 256 wherein it is held that "the mere fact that there is provision U/o 39 rule 2A CPC for taking action for disobedience of an order of temporary injunction, does not prevent the court from taking steps to see that its order are implemented. If the court had no power to implement its own orders, then there is no purpose in the courts passing orders in matters coming before them. The remedy under order 39 rule 2A is not exhaustive and court can pass appropriate orders to see that its orders are enforced. In necessary cases, even the police can be directed to enforce the orders of the court. In this case that alone has been done by the trial court and I do not find any error of jurisdiction warranting interference U/s 151 of CPC."
10. The cited authorities are fully applicable in the present case and the ratio decided by Hon High Courts clearly justify the order passed by Ld. Sr. Civil Judge. Hence, the appeal is without merits and same is dismissed. File be consigned to the record room. TCR be sent back alongwith copy of the judgment.
Announced in the open Court on 13.09.2017 ( Rakesh KumarIII ) Additional District Judge01 (East)/KKD/Delhi / 13.09.17 MCA No.33/17 Page No.6 of 6