IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12705 of 2006 1. Dr.Nirmal Kumar Srivastava son of late Dr. Murli Manohar, Retired Principal Scientist, resident of 304, Karpura Moon Palace, Chitkohra, P.S. Gardanibagh, District Patna, 2. Niraj Kumar Srivastava son of late Bimal Kumar Srivastava, resident of Simuldih (Teli-para), P.O. Damodarpur, Via I.S.M., P.S. and District Dhanbad, … Petitioners Versus 1. The State Of Bihar, 2. Anil Kumar Srivastava son of late Dr. Murli Manohar, Proprietor Manohar Pharma/Pharmacy, Station Road, Rafiganj, P.O. and P.S. Rafiganj, District Aurangabad (plaintiff), 3. Smt. Uma Srivastava wife of late Bimal Kumar Srivastava, 4. Santosh Kumar Srivastava, 5. Pankaj Kumar Srivastava, Both sons of late Bimal Kumar Srivastava, All residents of Chanakyanagar, Steel Gate (Govindpur Main Road), P.K.G. Ashram, P.O., P.S. and District Dhanbad-828109 (Jharkhand) … … Respondents For the Petitioners: Mr. Sukumar Sinha, Sr. Advocate Mr. Abinash Kumar, Advocate For the State: Mr. S.K. Jha, AC to GA X For Respondent No. 2: Mr. Mrigendra Kumar, Advocate ----------- 3 07.07.2011 The petitioners are aggrieved by the order dated 22.08.2006 passed in Miscellaneous Appeal No. 7/03/1/04 by the Ist Additional District Judge, Aurangabad, as contained in Annexure 5, affirming the order dated 03.07.2003 passed by the Sub Judge Ist, Aurangabad in Partition Suit No. 24 of 2003. 2 It is submitted on behalf of the petitioners that Partition Suit No. 24 of 2003 has been filed by the plaintiff- respondent no. 2 and a petition for grant of injunction restraining the defendants from making construction over the suit property mentioned in the schedule of the plaint under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure was also filed. During the pendency of such application the defendants were directed to maintain status quo. Thereafter, the defendants-petitioners appeared and filed their show-cause refuting the allegations made in the petition filed under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure. However, when the matter was being heard an undertaking was filed on behalf of the petitioners signed by their learned counsel stating that defendant nos. 1 and 2, i.e. the petitioners herein, undertake not to transfer or encumber the suit property without legal necessity. It is contended that the trial court, without recording any finding on merit and holding that the three necessary ingredients, i.e. prima facie case, balance of convenience and irreparable injury exists in the case, has directed the petitioners to maintain status quo with respect to the suit land described under schedules 1 to 4 of the plaint till the disposal of the suit. However, a liberty has also been given 3 that in case of urgency the willing party, after obtaining permission of the court, may encumber or sell the suit property. Being aggrieved by the aforesaid order, which is appended as Annexure 4 to this writ application, the petitioners preferred Miscellaneous Appeal No. 7/03/1/04, which was heard and decided by the Ist Additional District Judge, Aurangabad. The appellate court has affirmed the view of the trial court holding that the status quo was passed on undertaking given by the appellants and they were fully aware about the contents same. Finding no illegality or impropriety in the order the appellate court dismissed the appeal. Learned counsel for the petitioners submits that the undertaking not signed by the petitioners rather signed by the learned counsel appearing on their behalf would be of no legal value, and, thus, the court below should have ignored the same and passed the order on its merit. Having not done so the impugned orders are liable to be set aside on that ground alone. Learned counsel also submitted that it is well settled that only a party can give concession or undertaking not their counsel. However, no authority could be cited on behalf of the petitioners at the time of hearing to show the aforesaid well 4 settled proposition. It has further been submitted that a detailed show-cause was filed before the trial court in the injunction matter denying the allegation made in the injunction petition and, thus, the undertaking given by their Advoicate without the signatures of the petitioners cannot be considered and is fit to be ignored. It is urged that without recording any finding upon existence or otherwise of the three essential ingredients, as discussed above, for grant of injunction, the court below has not exercised its jurisdiction in correct manner by directing the defendants-petitioners to maintain status quo. Thus, the order passed contrary to the law would be void and unsustainable in law and fit to be quashed. Learned counsel for the plaintiff-respondent no. 2, on the other hand, submitted that once the Advocate appearing on behalf of the petitioners has given undertaking on behalf of the petitioners before the court below, the order passed being a consensual one is not fit to be challenged on behalf of the petitioners. I have heard the parties and perused the materials available on record. It appears from the judgment passed by the appellate court that a point was raised before it that even in the 5 undertaking filed it has merely been stated that the defendants- petitioners would not sell or encumber the suit land without legal necessity. However, the Advocate did not concede or state that without the permission of the court the defendants will not sell. It has also been urged before the appellate court, as would be apparent from the judgment, that on 03.07.2003 the appellants had come to Aurangabad court and had informed the Advocate that they had no legal necessity to sell for the time being and had not negotiated to sell at all with any body. Be that as it may, when confronted with a direct question as to whether the petitioners either before the appellate court or even before this Court have stated that they have not instructed their counsel to give such undertaking and the counsel has acted beyond the instruction given by them, learned counsel could not point out any such statement. A copy of the memorandum of appeal has also not been brought on record. The petitioners could have also annexed a copy of their vakalatnama given to their counsel in the trial court to show that they have not given any power to their counsel to give such undertaking or concession, however, neither the same has been brought on record nor has such statement been 6 made. That apart, from the perusal of the order passed by the trial court it appears that it has not based its order merely on the written undertaking given by the learned counsel on behalf of the petitioners rather the learned counsel had also conceded that in case of urgency the parties may be allowed to sell or encumber the suit land only after obtaining permission of the court concerned. Learned counsel for the petitioners could not point out any statement made either before the appellate court or in the writ application that no such instruction was given to their learned counsel by them for making such concession. Thus, in my considered opinion, in the absence of the aforesaid materials, it cannot be held that the Advocate appearing on behalf of the petitioners before the trial court has acted beyond the instruction given by the petitioners. Once having held so, the petitioners cannot be in position to say that the aforesaid undertaking given by their learned counsel in the trial court would be of no legal value. As a result, this Court does not find any reason to interfere into the impugned orders in exercise of its power under Article 227 of the Constitution of India and, accordingly, this writ application is dismissed. SC ( Dr. Ravi Ranjan, J.)