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2009 Supreme(All) 2838

[2009(8) ADJ 69 (DB)]
ALLAHABAD HIGH COURT
BEFORE : SATYAPOOT MEHROTRA AND ANIL KUMAR, JJ.
ABDUL MOID ....Petitioner
Versus
DISTRICT MAGISTRATE, BAHRAICH ....Respondent
(Civil Misc. Writ Petition No. 6897 of 2009, decided on 10th August, 2009)

Advocates:
Counsel :
M.A. Khan and Mohd. Aslam for the Petitioner; R.P. Singh and S.C. for the Respondents.

Headnote:(A) Code of Civil Procedure, 1908—Section 151, Order XXXIX, Rule 1—Inherent power of Court—Exercising of—Court has inherent power to prevent the abuse of process of the Court by any of the parties—Once petitioner had already filed an application under Section 151, CPC and same still pending and matter is subjudice, Court not inclined to interfere in the matter in respect to disobedience or violation of injunction order. [Paras 35 and 36]

       (B) Code of Civil Procedure, 1908—Section 151—Inherent power—Under Section 151, CPC the Court has powers to pass order of injunction in the form of restoration of possession of the Code is not res integra. [Para 28]

       

JUDGMENT

Honble Anil Kumar, J.—We have heard Sri M.A. Khan, learned Senior Counsel assisted by Sri Mohd. Aslam for the petitioners, Sri R.P. Singh, learned counsel for the respondent Nos. 5 and 6 and the learned Standing Counsel for the respondent Nos. 1 and 2.

2. By means of the present writ petition, the petitioners have prayed for the following reliefs :

(i) A direction may be issued to the respondent Nos. 1 and 6 to restore back the possession of the properties in dispute to the petitioners which have been illegally taken over by the respondent Nos. 3 to 6 by putting a lock as well as by constructing a boundary wall within the time frame fixed by this Hon’ble Court and further they may be restrained from interfering with the peaceful possession of the petitioners till the final adjudication is made by the competent Court of law, namely, Civil Judge (Senior Division) Bahraich wherein Regular Suit No. 286 of 1991 filed by the petitioner No. 1 and Civil Judge (Junior Division) Bahraich wherein Regular Suit No. 1058 of 1991 filed by the petitioner No. 2 is pending for adjudication.

(ii) Respondent Nos. 3 to 6 may be punished for wilful and deliberate disobedience of the order dated 29.4.1991 and 18.4.1991 passed by Civil Judge (Senior Division), Bahraich in Regular Suit No. 286 of 1991 as well as order dated 11.11.1991 passed by Civil Judge (Junior Division), Bahraich in Regular Suit No. 1058 of 1991 by taking law in their own hands, despite the knowledge of the order by dispossessing the petitioners from the properties in dispute.

3. The un-controverted facts of the present Writ Petition are to the effect, that the dispute relates to house No. 2369-N situate in Mohalla Steelganj, Bahraich, district Bahraich..

4. Sri Abdul Majeed, father of the petitioner No. 1 acquired the land in question from Late Raja Nanpara, who was ex-intermediary for construction of a house under written permission dated 7.8.1968 as the Zamindari had yet not been abolished in the urban areas and thereupon constructed a house thereon. He had executed a will on 3.1.1976 with respect to the house in dispute in favour of the petitioner No. 1.

5. Sri Abdul Majeed died in the year 1976 and since then the petitioner is in peaceful possession over the house and the land in dispute, thus the petitioner No. 1 is the owner of the same.

6. Nagar Palika, Bahraich and Executive Officer of Nagar Palika Bahraich (respondent Nos. 5 and 6) having no concern with the land in question tried to take forcible possession of the property in question.

7. As such, the petitioner after seeking exemption of service of notice under Section 326 of Nagar Palika Adhiniyam filed a suit for permanent injunction on 29.4.1991.

8. The said suit was registered as Regular Suit No. 286 of 1991 in the Court of Civil Judge (Senior Division), Bahraich. An application under Order 39 Rules 1 and 2 read with Section 151, Code of Civil Procedure was moved for grant of injunction and on 29.4.1991 the Court concerned had granted ex-parte injunction thereby restraining the Nagar Palika Bahraich and the Executive Officer Nagar Palika Bahraich, (respondent Nos. 5 and 6) not to interfere with the peaceful possession of the petitioner over the land in question. The said injunction order was made absolute on 14.8.1991. The suit No. 286 of 1991 is still pending for adjudication on merits.

9. Respondents No. 5 and 6 in utter defiance and disobedience of the order of injunction granted in Regular Suit No. 286 of 1991 tried to construct a room and a latrine on the southern side of the property in question by filling the foundation.

10. In view of the said development, the petitioner No. 1 had filed an application under Order 39 Rule 2-A before the Trial Court for taking action against respondent Nos. 5 and 6 as they are wilfully and deliberately disobeying the injunction orders passed by the Court, which is registered as Misc. Case No. 2 /70 of 2005.

11. Later on, the petitioner No. 1 had let out two rooms to o








































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