Delhi District Court
Sh. Jagdish Prasad vs Sh. Chander Pal on 9 February, 2007
Jagdish Prasad v. Chander Pal
IN THE COURT OF SH. A.S. JAYACHANDRA
ADDITIONAL DISTRICT & SESSIONS JUDGE, KKD, DELHI
MCA No. 72/05
DATE OF FILING : 20.08.2005
ARGUMENTS CONCLUDED ON : 06.02.2007
JUDGMENT DELIVERED ON : 09.02.07
IN THE MATTER OF:-
Sh. Jagdish Prasad
S/o Sh. Gainda Lal
R/o A-86, Opp. Shiv Mandir
Mandir Marg, 5th Pushta
Sonia Vihar
Delhi ............Appellant
versus
Sh. Chander Pal
S/o Sh. Ram Singh
R/o A-1, Sri Ram Colony
Main Chowk, 20 Road
Rajeev Nagar
Near Kachchi Khajoori
Shahdara
Delhi-110094 ...........Respondent
JUDGMENT
1. The plaintiff in the trial court has come in this miscellaneous appeal challenging the orders dated 16.07.2005 of the Ld. Civil Judge, Karkardooma 1/9 Jagdish Prasad v. Chander Pal Courts, Delhi. By the impugned order, the Ld. Civil Judge, Karkardooma Couts, has dismissed two applications filed by the plaintiff under Order 39 Rule 2-A of CPC and another application U/s 340 Cr.P.C. In the application, it is seen that there are three other opponents who are not made parties in this appeal.
2. The brief facts of the case are that the plaintiff appellant moved a suit before the court below in suit number 352/98 for perpetual injunction against respondent herein. In the said suit, the respondent-defendant appeared before the court below and made a statement that he has no concern with the suit property as it does not belong to him and that he never threatened the plaintiff to dispossess the plaintiff. Such a statement was made on oath on 19.08.1998. Based on the said statement, the suit was disposed of and the defendant was directed to remain bound with the said statement, by an order dated 19.08.1998. However, after disposal of the said suit, the plaintiff moved an application under Order 39 Rule 2-A r.w.s. 94, 151 CPC with a prayer to punish the contemnor along with his wife and one Chetram, who broke open the lock and taken possession. The said application is dated 13.11.1998, numbered as M-9/03. In the application, SHO, the Chowki Incharge and Commissioner of Police were also made parties as opponents. It is also found on record that on 14.02.2005, another application is filed U/s 340 Cr.P.C., for 2/9 Jagdish Prasad v. Chander Pal prosecution of the present respondent.
3. Ld. Court below had conducted inquiry framed three issues, examined three witnesses on behalf of applicant. The respondent herein examined three witnesses. After perusal of the evidence, the Court below dismissed both the applications by an order dated 16.07.2005.
4. Aggrieved by the said order, the appellant contends that the impugned order is against the law and that the violator of law can not be spared since the respondent has taken possession forcibly in utter disregard to the undertaking made before the Court on oath. While dismissing the application U/s 340 Cr.P.C., the appellant contends that the Ld. Court below had over-looked the admission made by the respondent that he was the owner of the property.
5. Notices were ordered on this appeal and respondent entered appearance through the Counsel and justified the impugned order.
6. The trial court records were summoned. I have heard the Ld. Counsel on either side. The Ld. Counsel for appellant has relied on the following rulings and reiterated in his arguments, the grounds urged in the appeal.
a) AIR 1964 Orissa 523 Babulal Parekh v. M/s Lachminarayan Swalram & Ors. ;
b) AIR 1993 AP 292 Cheni Chenchaiah v. Shalk Ali Saheb & Ors. ;
c) AIR 1986 Ker. 63 Kochira Krishman v. Joseph Desouza ; 3/9
Jagdish Prasad v. Chander Pal
d) AIR 1986 Cal. 220 Sujit Pal v. Prabir Kumar Sun & Ors. ;
e) AIR 1971 AP 53 Gopalrai Ekbote & Ramachandra Rao ; f) 1968 DLT 571 Vol. IV Jugal Kishore v. Des Raj Seth ; g) 2005 (3) RCR 371 SC DM United India Ins. Co Ltd. v. Samir Chandra Chaudhary ; h) (2002) 5 SCC 441Rakesh Wadhawan v. Jagdamba Ind. Corp. ; i) (2002) 6s SCC 16 Dhannalal v. Kalawatibai ; j) AIR 1961 MP 9 Umaraosingh Daulatsingh v. Ramgopal Ramnarayan & Ors. ; k) AIR 1967 AP 48 K. Amritlal v. P. Srinivasrao ;
Ld. Counsel for the respondent submits that the respondent is not the owner of the property and there was no injunction order against him and therefore, there is no question of violation apart from arguing that he has not committed any act of contempt or disobedience.
7. In the light of the above rival submissions, the only point that would arise for my determination in this appeal is 'whether the impugned order dated 16.07.2005, is justified in the facts and circumstances or not ' ?
8. I have carefully gone through the rulings urged by the Ld. Counsel. The application moved by the plaintiff U/o 39 Rule 2-A of CPC, is an interlocutory application. Order 39 CPC is titled as temporary injunctions and interlocutory 4/9 Jagdish Prasad v. Chander Pal orders. It is common prudence that such orders can be passed U/o 39 CPC only in a pending suit. When once the suit is decreed, the Court becomes functus-officio and it can not entertain any applications U/o 39 CPC. It is well settled that all the interlocutory orders would merge into the final order. The suit was disposed by the trial court on 19.08.1998. The interlocutory application U/o 39 Rule 2 (a) CPC was filed on 13.11.1998. It is also to be noted that there was no specific injunction order against the defendant as contended by the Ld. Counsel for the respondent. There is no decree passed in the suit. In the circumstances at best, it could be said that the defendant had violated the undertaking given to the Court, subject to proof. This situation does not call for entertaining the application U/o 39 Rule 2-A of CPC. It was argued by the appellant that the defendant had committed contempt of court. The jurisdiction to try such contempt was not vested with the Ld. Civil Judge, in view of Section 11 of the Contempt of Courts Act, 1971. Only if the suit was pending where an order of temporary injunction in-force and such party obliged to follow such order if violates would attract the penal provisions under Order 39 Rule 2-A . Under these circumstances, I am unable to sail with the arguments of the Ld. Counsel for the appellant that the application was still maintainable before the Court below even after the disposal of the suit. The rulings urged by the appellant deal with the situations where specific 5/9 Jagdish Prasad v. Chander Pal injunctions orders were violated during the pendency of the suit and are of no binding value. The ruling of our High Court in AIR 1968 DLT 571 is not applicable to the present case since it is held by the full Bench that while determining the nature of the suit and the relief, the plaint has to be read and construed as a whole. The court has to look and see the real nature of the relief claimed. This ruling is of no help to the appellant. The ruling of Hon'ble Supreme Court in 2005 (3) RCR 371 is pressed into service to urge that there was a specific admission which can not be backed out. I have carefully gone through the ruling wherein it is held that admission is the best piece of evidence U/s 31 of the Evidence Act, and the opposite party can rely upon such admissions. The said ruling is of no help to the appellant as distinguishable on facts. Similar ruling is relied by the appellant in 2002 (5) SCC 440 which deals with admissions which does not help the appellant. In Dhannalal (supra), the Hon'bleSupreme Court held that the juridical process can not be allowed to betray substantive law and further held that the plaintiff can choose most suitable forum unless a rule of law excludes such choice. This ruling is of no help to the appellant. In the above context, I am of the humble opinion that the rulings urged by the appellant are all out of context since no application U/o 39 Rule 2-A was maintainable after disposal of the suit since all the interim orders would merge into the final order and 6/9 Jagdish Prasad v. Chander Pal furthermore there was no specific interim injunction passed by the court below nor there was a decree. In the circumstances, the only course was to have pleaded under evidence about the violation of undertaking given by the defendant which if proved, could have been treated as contempt of court for which the jurisdiction vested in some other forum. However, the Ld. Court below since inquired into by examining the witnesses on either side which is only superfluous on record. If not for the reasoning arrived by the Ld. Civil Judge, for the very aspect of non-maintainability of the application U/o 39 Rule 2-A, the impugned order is still justifiable on the above reasoning which I have discussed as above.
9. The impugned order also has dealt the application filed by the plaintiff U/s 340 Cr.P.C., which was filed after a gap of more than six years. The suit was disposed of on 19.08.1998 and the application U/s 340 Cr.P.C., was filed on 16.02.2005. It is un-understandable as to how the plaintiff tolerated such a situation for years and realised nearly after 7 years. It is well settled that the court has to exercise judicial discretion in the light of all the relevant circumstances to determine the question of expediency and order prosecution in the larger interests of the administration of justice and not to gratify feeling of personal revenge or vindictiveness or to serve the ends of a private party (AIR 1973 SC 2190). It is made clear that only if an opinion is formed that it 7/9 Jagdish Prasad v. Chander Pal would be expedient in the interest of justice, such an application can be entertained. Considering the peculiarity of this case, it would not be expedient in the ends of justice to invite the further gates of litigation. Ld. Court below had discussed the evidence led in while deciding the application U/s 340 Cr.P.C., and came to a conclusion that the plaintiff miserably failed to establish that he was dispossessed by the respondent herein. AW 3 had deposed that the applicant himself had vacated the shop and the respondent did not take forcible possession. I have gone through the evidence . AW 3 being the witness presented by the applicant himself and evidence of other witnesses which were duly appreciated by the Ld. Civil Judge, Delhi, I am unable to persuade myself to hold that the impugned order is opposed to law and facts on hand. Considering the broad principles under which the application U/s 340 Cr.P.C., is to be looked into, it was not only expedient but was also just in the circumstances to have dismissed such an application which the Ld. Court below had done so rightly. Hence, the point arising for my determination is answered accordingly.
10. For the aforesaid reasons, I pass the following :
ORDER The appeal stands dismissed. The impugned order dated 16.07.2005, in M-09/03 on the file of the Ld. Civil Judge, Karkardooma Courts, Delhi is hereby 8/9 Jagdish Prasad v. Chander Pal affirmed.
There shall be no order as to costs. TCR be sent back along with a copy of this Judgment. File be consigned to RR.
ANNOUNCED IN THE OPEN COURT ON THE NINTH DAY OF FEBRUARY, 2007 (A.S. JAYACHANDRA) ADDL. DISTT. JUDGE : KKD CURTS : DELHI 9/9