Punjab-Haryana High Court
Renu Sharma vs M/S Hamara Realty Pvt. Ltd on 4 August, 2014
CR No.3571 of 2013(O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR No.3571 of 2013(O&M)
Date of decision: August 4th , 2014
Renu Sharma
...Petitioner
Versus
M/s Hamara Realty Pvt. Ltd.
...Respondents
CORAM: HON'BLE MR.JUSTICE DR. BHARAT BHUSHAN
PARSOON
Present: Mr. R.K. Handa, Advocate for the petitioner.
Mr. Arun Monga, Advocate
for respondent No.1.
Mr. Rajiv Kwatra, Sr. DAG, Haryana
for respondents No.2 to 4.
****
Dr.Bharat Bhushan Parsoon, J.
1. A suit for specific performance of agreement to sell dated 16.10.2008 is pending adjudication before the lower Court. Initially an application under Order XXXIX Rules 1 and 2 CPC had been filed whereby injunction was sought against respondents from alienating the suit land as also against changing the nature thereof without prior permission of the Court. Both the respondents despite service had not made appearance before the Court and thus were proceeded against exparte. When the suit was adjourned for production of exparte evidence by the plaintiff, allowing the injunction application of the plaintiff, defendant No.2 M/s Hamara Realty Pvt. Ltd. was restrained from alienating the suit land as also from changing the nature thereof without prior permission of the Court.
Mohan Brij 2014.08.08 13:58 I attest to the accuracy and integrity of this document Chandigarh CR No.3571 of 2013(O&M) -2-2. Finding that the said order stood violated and alienation of the suit land was made, an application under Order XXXIX Rule 2A and Section 151 CPC was moved by the plaintiff seeking action against the present respondent - defendant No.2 and three more respondents as are mentioned in application under Order XXXIX Rule 2A CPC (Annexure P12). When the proceedings were going on in the said petition, an application was moved by respondents No.2 to 4 under Order I Rule 10(2) read with Section 151 CPC for striking of names of said applicants/respondents from the array of respondents in pending proceedings under Order XXXIX Rule 2A CPC. Accepting this application of applicants/respondents No.2 to 4 in proceedings under Order XXXIX Rule 2A CPC their names were removed from the array of respondents.
3. It is against this order that the present petition has been preferred by the petitioner invoking supervisory jurisdiction of this Court under Article 227 read with Section 151 CPC on the ground that striking of names of respondents No.2 to 4 from the list of respondents emanates from the fact that the trial Court did not take into account material facts and circumstances. It is claimed that all the respondents were working at tendem and in connivance with each other and were violating orders dated 5.2.2011.
4. It is averred that order dated 5.2.2011 vide which injunction had been granted was very well within the knowledge of respondents No.2 to 4 and they deliberately, willfully and intentionally violated the same. It is further claimed that respondents No.2 to 4 acting in connivance with respondent No.1 had failed to obey orders of 5.2.2011 rendering them liable to punishment. In short, it is claimed that respondents No.2 to 4 were acting in connivance with respondent No.1 and had intentionally violated orders of 5.2.2011.
5. Counsel for the respondents have urged that neither respondents No.2 to 4 were parties to the litigation nor were in anyway connected with the injunction order and thus the impugned order is valid and legal. Claiming absence of merit in the present petition, dismissal has been sought.
Mohan Brij 2014.08.08 13:58 I attest to the accuracy and integrity of this document Chandigarh CR No.3571 of 2013(O&M) -3-6. Hearing has been provided.
7. Before rival claims of the parties are adjudicated, it would be better to take stock of the factual matrix as also the attending circumstances. The petitioner - plaintiff had filed a suit for specific performance of the agreement to sell dated 16.10.2008 and had also moved an application under Order XXXIX Rules 1 and 2 read with Section 151 CPC therewith, seeking intervention of the Court for restraining the defendants therein, qua alienation of the suit land as also against changing the nature of the same. Vide order of 5.2.2011, said application of the petitioner - plaintiff was allowed and respondent No.1 herein who was defendant No.2 in the suit, was restrained to alienate the land as also from changing nature of the same without permission of the Court.
8. Respondent No.1 who was contesting defendant there in the suit, was granted licence on 28.12.2011 by Director General Town and Country Planning(respondent No.2 herein), acting in association with respondents No.3 and 4. It is claimed by the petitioner - plaintiff that vide communication of 30.1.2011 and 10.8.2011, the petitioner had duly intimated order dated 5.2.2011 passed by the Court to respondent No.2. It is, thus claimed that all the respondents were fully aware of the pendency of the suit as well as of injunction order therein.
9. Though, respondents No.2 to 4 in the petition herein were not parties in the civil suit, in proceedings started under Order XXXIX Rule 2-A read with Section 151 CPC, the petitioner - plaintiff had impleaded them as respondents.. During those proceedings pursuant to an application moved by respondents No.2 to 4 herein, under Order 1 Rule 10(2) read with Section 151 CPC, their names were struck of from the array of respondents. It is this order which is under challenge in this revision petition.
10. It is claimed that being fully aware of the order dated 5.1.2011, respondents No.2 to 4 joined hands with respondent No.1 and granting him licence abetted commission of violation of order of 5.2.2011 against respondent No.1 in changing nature of the suit property, which action had been Mohan Brij 2014.08.08 13:58 I attest to the accuracy and integrity of this document Chandigarh CR No.3571 of 2013(O&M) -4- prohibited to be done. It is claimed that the Court wrongly took recourse to Order 1 Rule 10(2) CPC whereas said provision does not apply to proceedings under Order XXXIX Rule 2-A. It is pleaded that pursuant to grant of licence by respondents No.2 to 4, respondent No.1 carving out plots is to sell those and thus the impugned order stood violated and application under Order XXXIX Rule 2-A read with Section 151 CPC was maintainable against respondents No.2 to 4 but they have wrongly been removed from the array of respondents.
11. Impugned order has emanated pursuant to application of respondents No.2 to 4, made by them on receipt of notice of petition under Order XXXIX Rule 2-A CPC preferred by the petitioner - plaintiff. Concedingly respondents No.2 to 4 were not parties to the suit in which injunction order of 5.2.2011, violation of which is alleged to have been made. To maintain action against these respondents, the petitioner was bound to show that order of injunction had duly been communicated to them and further that they were bound to follow the same. Both the defendants contesting the suit had been proceeded against ex-parte as despite service they had failed to put in appearance. Perusal of the impugned order reveals that this order was made when neither of the defendants was present. Operative portion of the said order of 5.2.2011 reads as under:-
"The injunction application of the plaintiff is allowed to the effect that till the decision of the suit, the defendant No.2 is restrained from alienating the suit land and also from changing the nature thereof, without seeking prior permission of the Court."
12. The petitioner - plaintiff neither could show in the lower Court nor could show in this Court that respondents No.2 to 4 had any knowledge of passing of the above injunction order. Assertion of the petitioner that he had sent communication letters dated 30.1.2011 and 10.8.2011 to these respondents is yet to be established. Even prima-facie there is no material to attribute knowledge of the injunction order to these respondents.
13. As the facts stand, the order having been passed in absence of the contesting defendants, the petitioner will have to establish first of all that Mohan Brij 2014.08.08 13:58 I attest to the accuracy and integrity of this document Chandigarh CR No.3571 of 2013(O&M) -5- order of injunction was communicated and was in the knowledge of respondent No.2 who has obtained licence as colonizer.
14. Plea of the petitioner that provisions of Order 1 Rule 10(2) CPC had wrongly been used by the lower Court which in fact were not applicable to the facts, is an argument devoid of merit. At this stage ready reference may be made to provisions of provisions of Order 1 Rule 10(2) CPC which is as under:-
"(2) Court may strike out or add parties:- The Court may at any stage of the proceedings, either upon on without the application of either party, and as such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff of defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settled all the questions involved in the suit, be added."
15. Contention of the counsel for the petitioner is that this provision applies to suits and would not extend to application under Order XXXIX Rule 2-A CPC. This arguments is not valid. To assign restrictive meaning and scope of their play to this provision is wrong. In any case, filing of application under Order XXXIX Rule 2-A CPC manifests development in the suit and proceedings have direct nexus with the suit as also with the injunction order which had been passed therein. During the course of pendency of the suit or even at the appellate stage applicability of these provisions cannot be denied.
16. Even when the matter is evaluated in connection with execution proceedings under Order XXI CPC and specifically under Order XXI Rule 11 CPC, Order XXI Rule 32 CPC, Order XXI Rule 58, Section 47 or Section 144 of the Civil Procedure Code, etc. applicability of these provisions cannot be denied. The provisions referred to above have only been demonstratively mentioned; otherwise there may even be more such matters cropping up during pendency of the suit and thereafter, whereever applicability of these provisions would be necessary. Applicability of these provisions is vast Mohan Brij 2014.08.08 13:58 I attest to the accuracy and integrity of this document Chandigarh CR No.3571 of 2013(O&M) -6- and rather of plenary nature and restrictive meaning is not called for.
17. Looking the matter from yet another angle, the respondents No.2 to 4 acting in discharge of their duties in the regular course of their business have granted licence to respondent No.1. It was pursuant to an application made by him. In any case if respondent No.1 in violation of the injunction order has proceeded further and made an application before the respondents No.2 to 4 for obtaining licence to develop a colony fault would not lie with respondents No.2 to 4.
18. It is, however, made clear that if during pendency of the petition under Order XXXIX Rule 2-A CPC, sufficient evidence is brought on record by the petitioner - plaintiff to show any implicity by way of abetment, add or support in violation of the injunction order by respondent No.1 herein, the petitioner would be well within her rights to move the lower Court with fresh facts and circumstances for impleadment of these respondents which application of the petitioner would be decided by the Court below without being influenced by the observations made in the impugned order. There is no denying fact that on sufficient proof being produced by the initiator of proceedings under Order XXXIX Rule 2-A CPC, , violators of the stated orders even if they are not parties in the suit, could very well be impleaded to answer claim of the suitor therein. In short, disobedience by a person who is neither a party nor named in the order would operate against violation of the order if the Court is satisfied with material on record that the person concerned had knowledge of the order of injunction. Second situation can be that the violator was acting as agent of the person against whom the order of injunction was in force and that his action lacked bonafides. Reference made made to Kumarbar Sahoo Versus State of Orissa and ors, 1990 CivCC 531, Orissa High Court. Verdicting to the same fact is yet another authority Prafulla Kumar Mohapatra Versus Jaya Krushna Mohapatra and others, 1994 AIR(Orissa) 173, wherein it was held that persons not party to proceedings could still be proceeded against for act of violation of injunction order and even agent, servant, workman of the person against whom injunction order is passed could be impleaded as parties in such proceedings. Referring to The State of Bihar Versus Rani Sonabati Kumari, Mohan Brij 2014.08.08 13:58 I attest to the accuracy and integrity of this document Chandigarh CR No.3571 of 2013(O&M) -7- AIR 1961 Supreme Court 221(1), it has been claimed that when temporary injunction had been issued directing defendant State not to issue any notification for taking possession of the land, , on proof of violation and wilful disobedience matter could not be proceeded further.
19. Sequelly when neither communication of the stated injunction order is proved to have been made to respondents No.2 to 4 and no knowledge may be attributed to them, they had rightly been removed from the array of respondents under application under Order XXXIX Rule 2-A CPC.
20. Affirming the impugned order, the present petition is dismissed being meritless.
21. Nothing expressed hereinabove would have any bearing on the merits of petition under Order XXXIX Rule 2-A CPC pending adjudication by the Court below.
August 4th , 2014 (Dr.Bharat Bhushan Parsoon)
Brij Judge
1. Whether Reporters of local papers may be allowed to see the judgment? Yes
2. Whether to be referred to the Reporters or not? Yes
3. Whether the judgment should be reported in the Digest? Yes Mohan Brij 2014.08.08 13:58 I attest to the accuracy and integrity of this document Chandigarh