1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR. Writ Petition No. 3094/2008 (Bholeshankar Awas Gruha Nirman Sahakari Sanstha Maryadit VERSUS Omprakash Dwarkaprasad Malviya & 2 others) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri R.R. Srivastava, counsel for the petitioner. Shri A.S. Kilor, counsel for the R-1. Shri M. Shareef, counsel for the R-2 & 3. CORAM : SMT. VASANTI A. NAIK, J. DATE : NOVEMBER 26, 2008. Heard the learned counsel for the parties. By this petition, the petitioner impugns the common order passed by the 2nd Joint Civil Judge (Senior Division), Nagpur, below Exhs.23, 30 and 70 for initiating action against the respondent nos.1, 2 and 3 under the provisions of Order XXXIX Rule 2 A(1) of the Code of Civil Procedure. The petitioner-society is the original plaintiff. A suit was filed by the plaintiff for a declaration that the plaintiff is the absolute owner of the suit property bearing Khasra No.71/1 admeasuring 5.75 acres and the defendant 2 Omprakash be restrained from disturbing the peaceful possession of the plaintiff over the suit property. The said suit was filed by the plaintiff on 09.02.2003. Since 09.02.2003 was a holiday, the Judge, who took up the matter at his residence, passed the following order; “Read application and documents. Today, being holiday, this matter cannot be alloted to concerned Court. Considering this fact, both the parties to the suit to maintain status quo in respect of the suit property till 11.02.2003. E.P. & S.B. allowed.” It is the case of the petitioner that in spite of the order of status quo dated 09.02.2003, the defendant continued to encroach upon the suit land with the help of other non-applicants i.e. the defendant nos.2 and 3, who were later on joined as defendants in the suit by an order dated 10.06.2003. It is the case of the petitioner that the defendant 3 nos.1, 2 and 3 erected fencing over the suit land and also fixed a board showing the name of defendant nos.1 and 3 as owners of the property. In the three applications filed by the petitioner at Exhs.23, 30 and 70 for initiating action under Rule 2 A of Order XXXIX of Code of Civil Procedure, it was stated by the petitioner that the respondents not only erected a wall and fixed a board on the land but, had also erected a cottage thereon. The petitioner stated in the application that there was enough evidence to show that the petitioner was the owner of the suit property and was in possession thereof on 09.02.2003, when the order of status quo was passed. The applications filed by the petitioner were strongly opposed by the respondents and it was the case of the defendant no.1/respondent no.1 that he had already entered into an agreement of sale of the property with defendant nos.2 and 3/respondent 4 nos.2 and 3 and had put them in possession of the same much prior to the institution of the suit. Hence, according to the defendant no.1, the applications under Order XXXIX Rule 2 A of the Code of Civil Procedure could not have been filed against him. The defendant nos.2 and 3 also filed their reply and stated that they were joined as party defendants on 10.06.2003 and the fencing and the other construction on the suit property was in existence prior to the institution of the suit on 09.02.2003. The defendants, therefore, sought for the dismissal of the applications. The trial Court by the impugned order dated 28.03.2006 rejected the three applications thereby refusing to initiate action against the defendants under the provisions of Order XXXIX Rule 2 A of the Code of Civil Procedure. I have heard the learned counsel for the petitioner at length. The learned counsel for the petitioner has taken this Court through various 5 documents including the photographs, the sale-deeds and the reports lodged by the Society in the police station. I have also perused the impugned order dated 28.03.2006. No fault can be found with the impugned order passed by the 2nd Joint Civil (Senior Division), Nagpur on 28.03.2006 in rejecting the applicants at Exhs.23, 30 and 70. The trial Court rightly observed that the status quo order was passed on an application at Exh.5 and though the correct Khasra number of the suit property was 73/1, the complaint as well as application at Exh.5 recited that the suit property was situated in Khasra No.71/1 and was comprised of 5.75 acres. The trial Court, therefore, rightly held that the status quo order was granted in respect of the property situated in Khasra No.71/1. It appears that the petitioner has, for the first time, amended the plaint on 04.09.2006 and corrected the description of the suit property and has stated that the suit property bears Khasra 6 No.73/1. Apart from this material defect, it is necessary to note that initially the suit was filed on 09.02.2003 against defendant no.1 only. It is only on 10.06.2003 that the Court permitted the petitioner to join the defendant nos.2 and 3 as party defendants to the suit. The order of status quo, therefore, did not operate against the defendants. The breach of the order of the status quo as claimed by the petitioner has been committed by the defendant nos.1, 2 and 3 only on 09.02.2003, 10.02.2003 and 11.02.2003 and thereafter. It is not the case of the petitioner that the defendants had breached the order of status quo after 10.06.2003 when the defendant nos.2 and 3 were joined as party defendants. For proving the encroachment, the petitioner relied on the photographs which were filed on record. The Court, however, refused to record a finding on the basis of the photographs that the 7 defendants had illegally made the construction after 09.02.2003 as the photographers had failed to bring the original bill book to show the exact date of taking the photographs. The trial Court held that the photographs did not show the exact position as it existed prior to the passing of the order dated 09.02.2003 as also the position after passing of the status quo order. Though the petitioner had relied on certain reported decisions to show that even strangers can be held liable for violation of orders of the Court, the trial Court held that the said principle was not applicable in the facts of the present case as the material produced by the petitioner on record did not show that the defendants disobeyed the order of the status quo, as alleged by the petitioner. The impugned order passed by the 2nd Joint Civil Judge (Senior Division), Nagpur on 28.03.2006 is based on the record in Special Civil Suit No.546/2003 and also the documents and 8 evidence tendered by the parties in pursuance of the applications at Exh.23, 30 and 70. There is no reason to interfere with the findings recorded by the trial Court in the impugned order dated 28.03.2006. The photographs produced by the petitioner did not clearly show the position of the suit property as it existed prior to 09.02.2003 and thereafter as the suit land admeasures 5.75 acres and the photographs show only a small part of the suit land in each of them. The petitioner had failed to prove the disobedience of the order of status quo dated 09.02.2003 at the hands of the defendants by making the construction after 09.02.2003 and hence the applications at Exh.23, 30 and 70 were rightly rejected. There was no jurisdictional error in the impugned order dated 28.03.2006. The writ petition is, therefore, dismissed with no order as to costs. It is needless to mention that the impugned order is passed on an interlocutory 9 applications under Order XXXIX Rule 2 A of the Code of Civil Procedure and hence the same as also this order would have no effect whatsoever on the merits of the civil suit, which is pending between the parties. Since the suit is nearly five years old, it is also necessary for the trial Court to expedite the same. The trial Court is, therefore, expected to decide the same as early as possible and within a period of one year from today. JUDGE APTE