Allahabad High Court
Sahab Deen vs Keshav Prasad & Ors. on 11 January, 2018
Author: Pratyush Kumar
Bench: Pratyush Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ? AFR Court No. - 6 Case :- SECOND APPEAL No. - 187 of 2017 Appellant :- Sahab Deen Respondent :- Keshav Prasad & Ors. Counsel for Appellant :- Angrej Nath Shukla Counsel for Respondent :- Ram Dev Tiwari Hon'ble Pratyush Kumar,J.
C. M.Appln. No.52818 of 2017 The instant application has been moved by plaintiff-appellant in Second Appeal No.187 of 2017 wherein Keshav Prasad, Suman Dixit, C.L.Dixit, Sarju and Devendra were arrayed as respondents. On 1st May, 2017, this Court while admitting second appeal, issued notices to respondents with the direction to maintain status-quo by both the parties. Further sake of clarity, the order in question is quoted here-in-below:-
"Heard learned counsel for the parties.
Regular Suit No. 64 of 1999 for cancellation of sale-deed dated 23.11.1998 was instituted before the trial court in the month of January, 1999. It is evident from the judgment rendered by the trial court that the suit proceedings against the defendants proceeded ex parte by order dated 18.10.2002. The trial court before rejecting the civil suit has evidently recorded the statement of the witnesses i.e. plaintiff, his wife and one of the marginal witnesses of the sale deed. The vendor Sahab Deen was kidnapped on 21.11.1998 whereafter a sale deed under duress was got executed by threatening him and this fact is also deposed by the marginal witness. It appears that a telegram was also sent by the wife of vendor Sahab Deen on 22.11.1998 but an F.I.R. came to be lodged in respect of the alleged occurrence belatedly on 28.1.2001. In the plaint filed before the tribunal, the kidnapping of the vendor is specifically stated and in the suit proceedings the evidence to this effect was also recorded before the trial court. The trial court in stead of framing issues for the purposes of appreciating the evidence rejected the civil suit merely on the ground of delay in lodging the F.I.R. The appellant preferred First Appeal under Section 96 of the Code of Civil Procedure but the first appellate court has not attached any significance to the illegality in the matter of rejection of civil suit without framing of the issues for the purposes of deciding the real dispute.
Both the courts below have thus failed to frame issue before rejecting the suit as well as the first appeal. The plaint could not be rejected merely on the ground of non-disclosure of delay in lodging F.I.R. and there was equally not any objection filed under Order 7 Rule 11 C.P.C. The second appeal thus deserves to be admitted on the following substantial question of law framed at 1, 4 and 5 in addition to 'a', which read as under :-
1. Whether the dispute can be decided without framing the issues in the case.
4. Whether the judgment can be passed without framing the issues if the matter relates to cancellation of sale deed.
5. Whether judgment can be passed without discussing the evidence and statement of the witnesses in the proceeding.
a. Whether without framing of issues, evidence of witnesses can be ignored in the judgment on the mere strength of probability of a fact which even does not constitute a part of cause of action.
Admit.
Issue notice.
Status quo during the pendency of appeal shall be maintained by both the parties."
By the instant application plaintiff-appellant has complained that the order alongwith application was served on S.O.Chinnhat on 8th May, 2017. On his intervention for sometime construction work was stopped but from 10th May, 2017, it has again started. In Para 17 of the supporting affidavit, the appellant has named four persons for committing willful and deliberate disobedience of order dated 1st May, 2017 quoted here-in-above. Therefore, he prays for issue of contempt notices to them and prosecuted them. With the supporting affidavit, copy of application dated 8th May, 2017, copy of order dated 1st May, 2017, copy of application dated 11th May, 2017 and postal receipts have been annexed.
On behalf of the respondents, the application has been objected which necessitated the appellant for moving an application under section 152 Cr.P.C. for modification/correction of order dated 3rd July, 2017. The order dated 3rd July, 2017 is quoted here-in-below:-
"Issue notice to opposite parties to show cause as to why action should not be taken against them, as they are in violation of the order dated 01.05.2017 passed by this Court, by which this Court has directed them to maintain status quo during the pendency of instant second appeal."
After hearing the parties, on the application under section 152 Cr.P.C., the following order was passed on 16.11.2017:-
"(C.M.Application No.93187 of 2017) The present application has been moved under Section 152 of C.P.C. for modification of the order dated 03.07.2017 passed by this Court.
Section 152 of Code of Civil Procedure reads as under :-
"Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties."
After hearing learned counsel for the parties and going through the records, the present application does not fall within the ambit and scope as per the provisions of Section 152 of C.P.C., as such, the same is rejected."
At this stage, on behalf of the respondents, objection has been made that the persons against whom contempt action has been prayed for are not party to the appeal nor they were bound by the order of status-quo. In reply to this objection Sri Angrej Nath Shukla, learned counsel appearing for the appellant submits that in view of provision contained in Order 39, Rule 2A, any person who disobeyed the order knowingly is liable to be punished under the aforesaid provision. In support of his argument, he has referred the case of Mohd.Sharfuddin (Died) by Lrs. Vs. Mohd.Jamal and others 2003(3) ALD, 83. In this case Single Judge of Andhra Pradesh High court was seized with the matter whether temporary injunction order granted by the lower court on legal representatives of the party would be bound by the order or not. In Para-30, he came to the opinion that any person, who interferes with the Court of Justice or his acts tend to disturb or detract the administration of justice is liable for consequences. It is not necessary that he should be a party to the proceedings. Hence, a person having knowledge of the order cannot be allowed to violate with impunity and be permitted to feign ignorance.
As against this, there are two authorities, one is in the form of an old decision given in Nawazzan Ali vs. Subhash, AIR 1927 Calcutta, 598 and second a recent one Vimal Chandra Sen vs. Kamla Mathur, 1983, Crl.L.J, 495 Delhi, in both the cases, these two High Courts have opined that Order 3 Rule 2 A CPC is not initiated to give power to visit for contempt persons against whom no order is passed.
These three decisions one at one hand, two at other hand depict the contradictory picture but it is easier to resolve because in the case of Mohd.Sarifuddin, the matter was dealt with in reference to legal representatives of the party, this is the settled legal principle that an injunction order is passed not only that person but his representative in interest, agents and other persons acting on his behalf are also restrained from disobeying that order. In brief it can be said that any person, if he is privy to the interest of the person against whom an injunction order has been passed, would be liable for contempt in case injunction order is disobeyed but a person who is not privy in interest to the person against whom injunction order has been passed he would not be liable.
When examined in the light of this legal position, it is clear that no allegation has been made that person named in Para 17 of the supporting affidavit are either representatives in interest of the present respondents or their agents or they were acting on the instruction of the respondents nor they appear privy to the respondents. The objection raised by respondents appears to be well substantiated and the present application has been moved against persons who cannot be said to be bound by the order of status-quo on 1st May, 2017, hence, the application is not maintainable and dismissed.
Order Date :- 11.1.2018 SKD .
.
.
.
.
Court No. - 6Case :- SECOND APPEAL No. - 187 of 2017 Appellant :- Sahab Deen Respondent :- Keshav Prasad & Ors.
Counsel for Appellant :- Angrej Nath Shukla Counsel for Respondent :- Ram Dev Tiwari Hon'ble Pratyush Kumar,J.
C. M.Appln. No.93187 of 2017This application has already been disposed of vide order dated 16.11.2017. It needs no fresh order.
Order Date :- 11.1.2018 SKD .
.
Court No. - 6Case :- SECOND APPEAL No. - 187 of 2017 Appellant :- Sahab Deen Respondent :- Keshav Prasad & Ors.
Counsel for Appellant :- Angrej Nath Shukla Counsel for Respondent :- Ram Dev Tiwari Hon'ble Pratyush Kumar,J.
Against application for stay objection has been filed on behalf of the respondents.
List in the week commencing from 23rd January, 2018.
Meanwhile, rejoinder affidavit may be filed.
Order Date :- 11.1.2018 SKD