Patna High Court
Nilima Sharma vs Padamdev Narain on 31 July, 2025
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.68 of 2024
======================================================
Nilima Sharma, Wife of Bhushan Sharma, resident of village - Paiga, Post -
Gundi, P.S. - Barhara, District - Bhojpur.
... ... Petitioner/s
Versus
1. Padamdev Narain, Son of Late Sidheshwar Lal, resident of village - Paiga,
Post - Gundi, P.S. - Barhara, District - Bhojpur.
2. Lalan Lal, Son of Late Nageshwar Lal and Mother s Name Late Shail
Kumari Devi, resident of village- Mirganj Ara, Near Pani Tanki, P.O.- Ara,
P.S. - Ara Town, District - Bhojpur.
3. Punu Lal, Son of Late Rajdeo Lal and Mother s Name Sabitri Devi, D/o Late
Ram Naresh Lal, resident of Village - Paiga, P.O. - Gundi, P.S. - Barhara,
District - Bhojpur.
4. Paramhansh Narain, Son of Late Sidheshwar Lal, resident of Village - Paiga,
P.O. - Gundi, P.S. - Barhara, District - Bhojpur.
5. Krishnadeo Narain, Son of Late Sidheshwar Lal, resident of Village - Paiga,
P.O. - Gundi, P.S. - Barhara, District - Bhojpur.
6. Smt. Suraya Kumari Devi, Wife of Shri Narendra Prasad Srivastav, D/o Late
Sidheshwar Lal, resident of Village - Paiga, P.O. - Gundi, P.S. - Barhara,
District - Bhojpur. At present resident of village- Kanai, Post - Drubdiha,
P.S. - Char Pokhari, District - Bhojpur.
7. Bijoy Narayan Lal, Son of Late Satyadeo Narayan Lal, resident of Village -
Paiga, P.O. - Gundi, P.S. - Barhara, District - Bhojpur. At present resident of
Mohalla - Maulabagh Ara, P.S. - Ara Nawada, District - Bhojpur.
8. Jay Narayan Lal, Son of Late Satyadeo Narayan Lal, resident of Village -
Paiga, P.O. - Gundi, P.S. - Barhara, District - Bhojpur. At present resident of
Mohalla - Maulabagh Ara, P.S. - Ara Nawada, District - Bhojpur.
9. Krishna Narayan Lal, Son of Late Satyadeo Narayan Lal, resident of Village
- Paiga, P.O. - Gundi, P.S. - Barhara, District - Bhojpur. At present resident
of Mohalla - Maulabagh Ara, P.S. - Ara Nawada, District - Bhojpur.
10. Bhola Narayan Lal, Son of Late Satyadeo Narayan Lal, resident of Village -
Paiga, P.O. - Gundi, P.S. - Barhara, District - Bhojpur. At present resident of
Mohalla - Maulabagh Ara, P.S. - Ara Nawada, District - Bhojpur.
11. Smt. Ram Kumari Devi, D/o Late Satyadeo Narayan Lal, and Wife of Shashi
Shekhar Lal, resident of village - Bakri, P.S. - Udwant Nagar, Post- Karwan,
District - Bhojpur.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. K.N. Choubey, Sr. Advocate
Mr. Ambuj Nayan Choubey, Advocate
Mr. Dineshwar Pandey, Advocate
Mr. Prashant Kumar, Advocate
Mr. Shashank Shekhar Dubey, Advocate
Patna High Court C.Misc. No.68 of 2024 dt. 31-07-2025
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Mr. Mohit Kumar, Advocate
For the Respondent no.1 : Mr. Sunil Kumar Sinha, Advocate
Mr.Binod Kumar Labh, Advocate
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CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
CAV JUDGMENT
Date : 31-07-2025
The present petition has been filed by the petitioner
for quashing the order dated 16.12.2023 passed in Misc. Appeal
No. 37/2022 by the learned Additional District Judge-8th,
Bhojpur at Ara dismissing the appeal and affirming the order
dated 27.05.2022 passed by the learned Sub Judge- 8th,
Bhojpur at Ara in Title Partition Suit No.531/2013 whereby and
whereunder the petitioner has been ordered to demolish all
constructions from the disputed land within three months from
the date of order, failing which the District Magistrate, Bhojpur
at Ara was directed to remove any construction and make the
land clear at the cost of the petitioner and also to attach any
property lying on the land.
2. Briefly stated the facts leading to filing of the
present case are that respondent no.1 instituted Title Partition
Suit No. 531/2013 against his co-sharers claiming 1/12th share
in the property mentioned in Schedule-2 of the plaint. The suit
land measures about 14 acres. The relevant land appertains to
Khata No. 152, Plot No. 360 in village-Paiga, P.S.-Barhara,
District-Bhojpur and its total area is said to be 76 decimals.
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Admittedly, respondent nos. 4 and 5, who are the brothers of the
respondent no.1 are also entitled to 1/12th share in the entire
property measuring about 14 acres. The respondent nos. 4 and 5
are defendant nos. 3 and 4 before the learned trial court.
3. It further transpires that the ex-parte injunction
order over the suit property was passed by the learned trial
court. The defendant nos. 3 and 4/respondent nos. 4 and 5
executed two registered sale deeds dated 01.03.2017 and
22.11.2017
, respectively in favour of the petitioner in respect of
16.88 decimals of land during the pendency of the partition suit.
The petitioner, after purchase of the land, constructed her house
and shops on the land which was completed before 01.05.2019,
the date at which she was directed to stop construction which,
however, was vacated in terms of order dated 20.05.2019.
4. Further, at the instance of the plaintiff/respondent
no.1 vide order dated 16.07.2019, the petitioner was added as
party defendant no.7 and she filed her written statement. The
learned trial court further directed the parties to maintain status
quo and to stop construction on 14.11.2019. In the said case, the
plaintiff/respondent no.1 filed a petition on 26.04.2022 under
Order 39 Rule 2A of the Code of Civil Procedure (hereinafter
referred to as ‘the Code’). The learned trial court, vide order
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dated 27.05.2022, directed the petitioner to demolish the
construction made on the purchased land, failing which the
District Magistrate, Bhojpur at Ara had been authorized to
demolish the same.
5. Aggrieved by the aforesaid order of the learned Sub
Judge-8, Bhojpur at Ara, the petitioner preferred Misc. Appeal
No.37/2022. The said appeal was dismissed on 16.12.2023
affirming the order of the learned trial court.
6. Aggrieved by the order dated 16.12.2023 passed in
Misc. Appeal No. 37/2022, the petitioner has approached this
Court by filing the instant civil miscellaneous petition.
7. Mr. K.N. Choubey, learned senior counsel appearing
on behalf of the petitioner, at the outset, submitted that the
orders passed by the learned Additional District Judge-8th,
Bhojpur at Ara and also learned Sub Judge-8th, Bhojpur at Ara
are completely illegal orders and have been passed without
consideration of the facts and law. The order dated 06.02.2016
was passed granting injunction to the plaintiff against all
defendants, but the suit had been proceeding ex-parte against all
the defendants including the vendor of the petitioner Nilima
Sharma. At that time, the petitioner was nowhere in picture.
Subsequently, after execution of two sale deeds dated
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01.03.2017 and 22.11.2017 in her favour by the defendant nos. 3
and 4, she purchased a portion of suit land, but she was not
having any knowledge about the injunction order. As the
petitioner was not a party before the learned trial court, she filed
an application on 07.05.2019 before the learned trial court
submitting that the plaintiff/respondent no.1 got an order
making wrong submission on 01.05.2019 and a similar petition
of the plaintiff/respondent no.1 was dismissed by the court of
learned Sub Judge-7 in Title Suit No. 783/2018. The plaintiff
concealed this fact. After hearing the parties, learned Sub Judge-
8, vide order dated 20.05.2019, modified its order dated
01.05.2019 regarding status quo and took out the petitioner
Nilima Sharma from its ambit and the learned trial court also
held that the said order would not be effective against the
petitioner Nilima Sharma.
8. Mr. Choubey further submitted that, however, in a
subsequent order dated 14.11.2019, without recalling its earlier
order dated 20.05.2019, the same court held that the petitioner
would also come in the purview of orders dated 06.02.2016 and
01.05.2019, holding that it was necessary to maintain the
sanctity of previous orders of this court. Thus, learned trial court
allowed the injunction petition dated 11.09.2019 and both the
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parties along with purchaser/defendant no.7/petitioner were
directed to maintain status quo and further directed the
concerned defendant to stop the construction work over the
disputed land till further orders of this court. Though this order
was not challenged, but it is a completely illegal order and
cannot be accepted and complied by the petitioner. The same
court, vide order dated 20.05.2019, took out the petitioner from
the ambit of its order dated 01.05.2019, but without taking into
consideration its earlier order and also without considering the
fact that the petitioner could not have any knowledge of order
dated 06.02.2016, it was not open for the learned trial court to
direct that the injunction order would be applicable even on the
petitioner. When the petitioner was not even party, applying the
order of injunction retrospectively was completely illegal and
void order. Moreover, this order is in breach of provision
contained in the Order 39 Rule 3 of the Code.
9. On this aspect, Mr. Choubey referred to the decision
of the Hon’ble Supreme Court in the case of Nawabkhan
Abbaskhan v. State of Gujarat, AIR 1974 SC 1471, wherein the
Hon’ble Supreme Court in paragraph 20 held as under :
“20. We express no final opinion on the
many wide-ranging problems in public law of illegal
orders and violations thereof by citizens, grave though
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which is void may be directly and collaterally
challenged in legal proceedings. An order is null and
void if the statute clothing the Administrative Tribunal
with power conditions it with the obligation to hear,
expressly or by implication. Beyond doubt, an order
which infringes a fundamental freedom passed in
violation of the audi alteram partem rule is a nullity.
When a competent court holds such official act or
order invalid, or sets it aside, it operates from nativity,
i.e., the impugned act or order was never valid. The
French jurists call it L’inexistence or outlawed order
(Brown and Garner: French Administrative Law, p.
127) and could not found the ground for a
prosecution. On this limited ratio the appellant is
entitled to an acquittal. We allow his appeal”.
10. Mr. Choubey further submitted that the conduct of
the learned trial court is not above board and the court
proceeded in completely biased manner to help the
plaintiff/respondent. When the plaintiff/respondent no.1 filed a
petition on 26.04.2022 under Order 39 Rule 2A of the Code, the
learned trial court did not institute any miscellaneous case as
required under Rule 459 (XII) of the Civil Court Rules. If a
thing is required to be done in a particular manner, it must be
done in that manner only or it would not be done at all.
11. Mr. Choubey further referred to the decision of
Privy Council in the case of Nazir Ahmad vs. King-Emperor,
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AIR 1936 Privy Council 253, wherein it has been held that if a
statute provides for a thing to be done in a particular manner, it
must be done in that manner or not at all.
The proceeding on the application dated 26.04.2022 is
without following the due process as no opportunity was given
to the petitioner to adduce the evidence and the unfounded
allegations made by the plaintiff/respondent no.1 were taken as
gospel truth. The learned trial court, vide order dated
27.05.2022, directed the petitioner to demolish all the structures
on her purchased land. But the petitioner did not make any
construction over her purchased land after passing of the
injunction order and whatever construction has been existing, it
was erected prior to coming into force of the injunction order
against the petitioner. The learned trial court did not further
consider the fact that in any event, the petitioner being a
pendente lite purchaser, land transferred in her name is subject
to provisions contained in Section 52 of the Transfer of Property
Act and her property would be required to be adjusted from the
share of her vendor and Takhta could be allotted in favour of her
vendor for the purchased land of the petitioner.
12. Mr. Choubey further submitted that the plaintiff
did not come before the learned subordinate court with clean
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hands as his prayer for injunction was already rejected in Title
Suit No. 703/2018 which the plaintiff had filed against the
petitioner and others.
13. Mr. Choubey referred to the decision of the Hon’ble
Supreme Court in the case of S.P. Chengalvaraya Naidu v.
Jagannath & Ors., AIR 1994 SC 853, wherein the Hon’ble
Supreme Court quoted the observation of the Chief Justice
Edward Coke of England made about three centuries ago that
“fraud avoids all judicial acts, ecclesiastical or temporal”. The
Hon’ble Supreme Court further held that the courts of law are
meant for imparting justice between the parties. One who comes
to the court, must come with clean hands and finally their
Lordships held that a person, who’s case is based on falsehood,
has no right to approach the court. He can be summarily thrown
out at any stage of the litigation.
14. Mr. Choubey further submitted that even the order
dated 16.12.2022, passed in Misc. Appeal No. 37/2022, has
perpetuated the wrong committed by the learned trial court.
Even for breach of injunction order passed under Order 39
Rules 1 & 2 of the Code, the law authorizes the court only to
attach the property of guilty of such disobedience and such
person can be detained in civil prison for a term not exceeding
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three months. Therefore, both the orders suffer from coram non
judice. The courts could not have ordered for demolition of
structure erected by the petitioner in a proceeding initiated
under Order 39 Rule 2A of the Code. Moreover, only when it
was found that the petitioner violated the order dated
14.11.2019, then only it could be said to be disobedience by the
petitioner. The petitioner has not been proceeded against for
violation of the order dated 14.11.2019, rather she has been
proceeded for violation of order dated 06.02.2016. When the
petitioner was not a party in the order dated 06.02.2016 and
subsequently, she was taken out from the ambit of injunction
order vide order dated 20.05.2019, there was no scope for
proceeding against the petitioner for disobedience of injunction
order. Again the order dated 27.05.2022 was passed without
hearing the petitioner and principles of natural justice demand
no person should be condemned unheard and Mr. Choubey
submitted that even Adam was not condemned unheard. It is
immaterial if the petitioner got the opportunity of hearing at the
appellate stage because deficiency of opportunity at original
level would not cure sufficiency of opportunity at subsequent
level. Mr. Choubey relied on the decision of the Hon’ble
Supreme Court in the case of Tilak Chand Magatram Obhan v.
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Kamala Prasad Shukla & Ors., 1995 Supp (1) SCC 21,
wherein it has been stressed that decision of the appellate
authorities could not cure the initial defect in the constitution of
the Enquiry Committee and the consequences flowing from one
of the members of the Enquiry Committee being biased.
Deficiency of natural justice before a trial tribunal can not be
cured by a sufficiency of natural justice before an appellate
tribunal and hence, it was held that a failure to natural justice in
the trial body cannot be cured by a sufficiency of natural justice
in an appellate body.
15. Mr. Choubey further reiterated that passing such
order directing for demolition of structure are alien to the power
of the court conferred by Order 39 Rule 2A of the Code.
Moreover, the order which is said to have been disobedience
was a void order passed in breach of Order 39 Rule 3 of the
Code.
16. Mr. Choubey further submitted that it is very
surprising that though the plaintiff/respondent no.1 sought
action against the petitioner for violation of injunction orders, he
did not seek any such action against his brothers/defendant nos.
3 and 4/respondent nos. 4 and 5, who are the original culprits
and sold the suit property during pendency of the partition suit.
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Even though their names have been mentioned in the petition
filed under Order 39 Rule 2A of the Code, none of the courts
which took up the matter passed any order against them. This is
quite strange.
17. Mr. Choubey further submitted that though
majesty of the court is to be upheld at any cost, but vanity of the
presiding judge could not be equated with majesty of the court.
Thus, Mr. Choubey submitted that as the petitioner has not
committed any breach of orders of the learned trial court, there
was no occasion for the learned Additional District Judge-8,
Bhojpur at Ara to pass any orders against this petitioner, more
so, an order directing for demolition of structure, on a petition
filed under Order 39 Rule 2A of the Code. Hence, the orders of
the learned trial court as well as learned appellate court are
illegal orders passed by the courts in excess of their jurisdiction
and are liable to be set aside.
18. Mr. Choubey further referred to the Constitution
Bench decision of the Hon’ble Supreme Court in Special
Reference No. 1 of 1964, AIR 1965 SC 745, wherein the
Hon’ble Supreme Court held in paragraph 142 as under :
“142. Before we part with this topic, we
would like to refer to one aspect of the question
relating to the exercise of power to punish for
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always keep in mind the warning addressed to them
by Lord Atkin in Andre Paul vs. Attorney-General of
Trinidad, AIR 1936 PC 141. Said Lord Atkin,
“Justice is not a cloistered virtue; she must be
allowed to suffer the scrutiny and respectful even
though out-spoken comments of ordinary men”. We
ought never to forget that the power to punish for
contempt large as it is, must always be exercised
cautiously, wisely and with circumspection. Frequent
or indiscriminate use of this power in anger or
irritation would not help to sustain the dignity or
status of the court, but may sometimes affect it
adversely. Wise Judges never forget that the best
way to sustain the dignity and status of their office is
to deserve respect from the public at large by the
quality of their judgments, the fearless-ness, fairness
and objectivity of their approach, and by the
restraint, dignity and decorum which they observe in
their judicial conduct. We venture to think that what
is true of the judicature is equally true of the
Legislatures”.
19. Mr. Choubey further referred to the decision of the
Hon’ble Supreme Court in the case of Thomson Press (India)
Ltd. v. Nanak Builders and Investors Private Limited & Ors.,
AIR 2013 SC 2389, wherein the Hon’ble Supreme Court while
dealing with doctrine of lis pendens has held that the doctrine
of lis pendens is a doctrine based on the ground that it is
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necessary for the administration of justice that the decision of a
court in a suit should be binding not only on the litigating
parties but on those who derive title pendente lite. The provision
of this section does not indeed annul the conveyance or the
transfer otherwise, but to render it subservient to the rights of
the parties to a litigation. It has further been held that a transfer
pendente lite is not illegal ipso jure but remains subservient to
the pending litigation. It has further been held that although the
above decisions do not deal with a fact situation where the sale
deed is executed in breach of an injunction issued by a
competent court, but there is no reason why the breach of any
such injunction should render the transfer whether by way of an
absolute sale or otherwise, ineffective. The party committing the
breach may doubtless incur the liability to be punished for the
breach committed by it but the sale by itself may remain valid as
between the parties to the transaction subject only to any
directions which the competent court may issue in the suit
against the vendor.
20. Mr. Choubey further submitted that there is
culpable arbitrariness in the impugned orders and this goes
against the established principles of law that a judge should act
impartially and pass any orders supported with reasons and not
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to act capriciously or on whims. In this regard, Mr. Choubey
referred to what Green philosopher Socrates said about qualities
of a judge :
‘A judge has duty to hear courteously; to answer
wisely; to consider soberly and to decide impartially’.
21. Thus, Mr. Choubey submitted that order could
only be in accordance with law. As no miscellaneous case was
instituted in terms of Rule 459 of the Civil Court Rules
regarding institution of miscellaneous case and Section 141 of
the Code was not followed as after institution of miscellaneous
case, the proceeding has to take place in the same manner as a
suit proceeds. No evidence was recorded about disobedience of
the orders by the petitioner and the impugned orders have been
passed based only on pleadings, such orders could not be
sustained.
22. Per contra, learned counsel appearing on behalf
of the respondent no.1 vehemently contended that the learned
subordinate courts have passed the orders considering the facts
and circumstances of the case and the law applicable and, for
this reason, the impugned orders do not need any interference
by this Court. The learned counsel further submitted that the
petitioner had knowledge of the injunction order dated
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06.02.2016 and also the pendency of Title Suit No.531/2013,
but in willful and deliberate disobedience of the orders of the
learned trial court, the petitioner has been pleading innocence
and misusing the procedural gaps in the law. The petitioner and
the respondent 2nd set executed two sale deeds dated 01.03.2017
and 22.11.2017 even after specific preventive injunction order
dated 06.02.2016 passed by the learned trial court restraining
any kind of sale or creation of any third party right over the suit
property. The petitioner also succeeded in constructing a house
over the said suit land during the operation of the aforesaid
preventive injunction order. The petitioner continued her illegal
construction over the suit property even after becoming a party
in the suit.
23. The learned counsel for the respondent no.1 further
submitted that the suit land was initially a mango orchard and it
was not a vacant residential land as claimed by the petitioner.
The learned counsel further submitted that the petitioner filed
vakalatnama in Title Suit No.531/2013 on 07.05.2019 and also
filed some petitions on 07.05.2019, 10.05.2019 and 13.05.2019,
which were disposed of on 20.05.2019. The proceeding under
Section 144 Cr.P.C. was initiated vide Case No. 267/2018 dated
10.11.2018 in which the petitioner and respondents Krishna Deo
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Narayan and Paramhans Narayan filed their respective show
cause reply. In her reply, the petitioner stated that when she
started making house on her purchased land, on that very date
and time, Padma Deo Narayan filed a case against her. Further
proceedings under Section 144 Cr.P.C. were also initiated from
time to time and in one such case, the petitioner filed show
cause reply on 29.11.2019 and her statement shows that when
she had been making construction, she was well aware about the
preventive injunction order dated 06.02.2016 passed by the
learned Sub Judge-8th, Bhojpur in Title Suit No. 531/2013. The
Sub-Divisional Magistrate, Ara Sadar in a proceeding under
Section 188 Cr.P.C. vide Case No. 32/2019 recorded a finding
that Nilima Sharma, the petitioner herein, claimed that she
completed her construction on the land of Title Suit No.
531/2013 on 30.08.2019. The SHO, Barhara reported on
26.11.2019 that the petitioner had violated the order dated
04.11.2019 passed by the SDM, Sadar, Ara in 144 Cr.P.C.
proceeding. These facts go on to show that the petitioner was
having knowledge about the preventive injunction order all
along and she willfully disobeyed the injunction order. The
proceeding under Section 144 Cr.P.C. vide Case No.267/2018
against the petitioner and respondent Paramhans Narayan and
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others was dropped on 08.01.2019 on the ground of pendency of
Title Suit No. 703/2018 after show cause replies of the opposite
parties have been submitted.
24. The learned counsel for the respondent no.1 further
submitted that respondent no.1 has also filed a Title Suit No.
703/2018 on 26.11.2018 and the said title suit was filed to
declare the sale deed no.1628 dated 01.03.2017 and sale deed
no.11597 dated 22.11.2017 executed by defendant nos. 4 and 3,
respectively in favour of the petitioner as null and void being hit
by doctrine of lis pendens and in violation of preventive
injunction order dated 06.02.2016. The said suit was filed
regarding the same suit property which is under consideration in
Title Suit No.531/2013. The petitioner filed Mutation Case No.
16/R-27/2018-19 and Mutation Case No. 17/R-27/2018-19
before the Circle Officer, Barhara in which local inspection was
done by the Halka Karamchari on 14.12.2018 and 15.12.2018,
respectively and Halka Karamchari specifically submitted that
the lands are Parti lands and no construction whatsoever existed
on them. The mutation petition of the petitioner was allowed on
14.12.2018 and 15.12.2018. However, these orders were set
aside in Mutation Appeal Nos. 521/2020-2021 and 522/2020-
2021, respectively. The learned trial court passed several
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injunction orders on 06.02.2016, 07.07.2018, 01.05.2019 and
14.11.2019 but to no avail and the petitioner, with all the
knowledge of the pendency of the suits and preventive
injunction orders, deliberately and forcefully completed the
illegal construction of the structures lis pendens and in violation
of the preventive injunction order dated 06.02.2016. The
impugned order dated 16.12.2023 and the order dated
27.05.2022 passed by the learned trial court are the orders to put
the party back to the same position as they stood at the time of
passing of the preventive injunction order dated 06.02.2016. The
impugned order is not an order passed under Order 39 Rule 2A
of the Code, rather it is an order passed for compliance of the
earlier orders. The provision of Order 39 Rule 2A of the Code
has been inserted as a penal provision and under this provision,
when the learned subordinate courts have not imposed any
penalty of civil prison or attachment of property of the
petitioner, and after taking note of the admission of the
petitioner about the prior knowledge of the preventive
injunction orders with the knowledge of the pendency of the
suits, came to the conclusion that the petitioner has made the
mockery of law by abusing the process of law and, therefore,
passed an order only to restore the suit property sans lis pendens
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construction. The petitioner has got no right, title and interest
over the suit property as she is a lis pendens purchaser during
the operation of preventive injunction order.
25. The learned counsel for the respondent no.1 further
submitted that it is well settled principle of law that justice
prevails over the law, as such, order impugned has been passed
in the interest of justice and to honour the procedural aspect of
law and the learned subordinate court has not imposed any penal
consequence upon the petitioner even after reaching to a
conclusion of her willful disobedience.
26. The learned counsel for the respondent no.1 further
submitted that in any case, the petitioner got the knowledge
latest by 30.11.2018 and in her show cause before the SDM, she
admitted making construction over the suit land till 30.08.2019.
Though the petitioner Nilima Sharma gave contradictory
statements before different forums, but she continued
construction over the land of both the sale deeds up-to
26.11.2019 and this is evident from the report dated 26.11.2019
submitted by the SHO, Barhara in compliance of the orders of
SDM, Sadar, Ara dated 18.11.2019.
27. Thus, learned counsel submitted that sale of the
suit land even after specific preventive injunction order and
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illegal lis pendens construction over it by the purchaser Nilima
Sharma, despite several legal proceedings, shows that
respondent forced the hands of the court in passing the
impugned orders as the court can not remain moot spectator to
the violation of its orders by the petitioner. The learned counsel
further submitted that in a catena of decisions, the Hon’ble
Supreme Court has held that if the nature of suit property is
changed, the courts could order for restoring the suit property to
its previous state and, therefore, there is no infirmity in the
orders directing the petitioner Nilima Sharma to demolish the
structure created despite injunction orders and clearing the land
of any such construction to restore its previous status. The
learned counsel cited a large number of authorities of the
Hon’ble Supreme Court and different High Courts in support of
his contention.
28. The learned counsel first referred to the decision of
the Hon’ble Supreme Court in the case of Jehal Tanti & Ors.
vs. Nageshwar Singh (D) through LRs, AIR 2013 SC 2235
wherein the Hon’ble Supreme Court held that if a sale deed was
executed in favour of the respondent no.1 in the teeth of the
order of injunction passed by the trial court, the same would be
unlawful under the provisions of Section 23 of the Indian
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Contract Act, 1872. In Jehal Tanti (supra), the Hon’ble
Supreme Court relied on the case of Tayabbhai M.
Bagasarwalla and anr. vs. Hind Rubber Industries Pvt. Ltd.
and Ors., (1997) 3 SCC 443, wherein the defendants were held
liable for consequences of their disobedience and violation of
the interim injunction order though it was subsequently found
that the court was lacking jurisdiction by the High Court.
Another decision relied on by the Hon’ble Supreme Court is the
decision rendered in the case of Vidur Impex and Traders (P)
Ltd. and Ors. vs. Tosh Apartments (P) Ltd., (2012) 8 SCC 384,
where sale deeds were executed in violation of injunction order
by the Delhi High Court and it was held that agreements for sale
and sale deeds executed by the respondent no.2 in favour of the
appellants did not have any legal sanctity.
29. The learned counsel in respect of unlawful action
in the matter of pending before a court referred to the view
taken by the Hon’ble Supreme Court in the case of Samir
Sobhan Sanyal vs. Tracks Trade Pvt. Ltd. and Ors., AIR 1996
SC 2102, wherein it has been held in paragraph 6 as under :
“…we find that high-handed action taken by the
respondent Nos. 1, 3 and 6 in having the appellant
dispossessed without due process of law, cannot be
overlooked nor condoned. The Court cannot blink
at their unlawful conduct to dispossess the
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that the status quo be maintained. If the Court gives
acceptance to such high-handed action, there will
be no respect for rule of law and unlawful elements
would take hold of the due process of law for
ransom and it would be a field day for anarchy.
Due process of law would be put to ridicule in the
estimate of the law-abiding citizens and rule of law
would remain a mortuary”.
30. The learned counsel next referred to the decision
of the Hon’ble Supreme Court in the case of Meera Chauhan
vs. Harsh Bishnoi and another, (2007) 12 SCC 201, wherein it
has been held that when parties violate order of injunction or
stay order or act in violation of the said order, the court can, by
exercising its inherent power, put back the parties in the same
position as they stood prior to issuance of the injunction order or
give appropriate direction to the police authority to render aid to
the aggrieved parties for the due and proper implementation of
the orders passed in the suit and also order police protection for
implementation of such order.
31. On similar aspect, learned counsel referred to the
decisions of different High Courts in the cases of Juvvaji
Ravinder vs. Jakkula Pushpaleela, AIR 2024 Telangana 77
(plaintiff is entitled to seek police assistance under Section 151
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of the Code), Sree Ram vs. State of UP and Ors., AIR 2011
Allahabad 72 (The Court is not only expected to pass order, but
also to enforce the same) and Papanna vs. Nagachari and Ors.,
AIR 1996 Karnataka 256 (The court can pass order to see that
its order is enforced. Order 39 Rule 2A of the Code does not
prevent the court from taking steps to implement its own order.
The court has jurisdiction to order police protection in such
circumstances).
32. On different facets of partition, learned counsel
referred to some of the decisions of different High Courts. In the
case of Parmal Singh (dead) through LRs and others vs.
Ghanshyam and Ors., AIR 2019 MP 131, the Division Bench
of Madhya Pradesh High Court has held that it is well settled
principle of law that unless and until the property is partitioned,
the co-sharer can only sell to the extent of his share, but he
cannot sell any specific portion of the land. In the case of Jugal
Kishore Singh and Ors. vs. Gobind Singh and Ors., 1992 (2)
PLJR 35, the learned Single Judge Bench of this Court held that
there is presumption of jointness and the burden to prove
partition is on the person who asserts it. In the case of Gajara
Vishnu Gosavi vs. Prakash Nanasaheb Kamble and Ors.,
(2009) 10 SCC 654, the Hon’ble Supreme Court held that an
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undivided share of a coparcener can be a subject matter of
sale/transfer, but possession cannot be handed over to the
vendee unless the property is partitioned by metes and bounds,
either by the decree of a court in a partition suit, or by
settlement among the co-sharers. In the case of Vidyawati
Gupta and Ors. vs. Bhakti Hari Nayak and Ors., AIR 2004
Calcutta 258, the learned Single Judge has reiterated the view
expressed by the Hon’ble Supreme Court in the case of Samir
Sobhan Sanyal (supra) that if the court blinks at such unlawful
action, due process of law would be put to ridicule in the
estimate of the law abiding citizens and rule of law would
remain a mortuary. In the case of Dorab Cawasji Warden vs.
Coomi Sorab Warden and Ors., AIR 1990 SC 867, the Hon’ble
Supreme Court held that even if the family is divided in status in
the sense that they were holding the property as tenants in
common but undivided qua the property, i.e., the property had
not been divided by metes and bounds, it would be within the
provisions of Section 44 of the Act. It has further been held that
denying an injunction against a transferee in such cases would
prima facie cause irreparable injury to the other members of the
family. In the case of Nizamuddin and Ors. vs. Khalil Mian
and anr. (CWJC No. 10718/2014), the learned Single Judge of
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this Court held that the law is well settled that the subject matter
of the suit should be protected during the pendency of the
litigation. In the case of Mst.Manmati Kuer vs. Ramgopal
Singh, AIR 1976 Patna 240, the Division Bench of this Court
held that disobedience of an order of injunction is a contempt of
the Court. In the case of Balwant Singh vs. Buta Ram, AIR
2009 (NOC) 2942 (P & H), the learned Single Judge of Punjab
& Haryana High Court held that the principle of estoppel
contained in Section 41, must yield to the doctrine of lis
pendens contained in Section 52 of Transfer of Property Act,
under which no title in the property can be validly transferred
during the pendency of litigation, in respect of it. Thus the
purchaser was not entitled to protection under Section 41 as the
property was transferred in his favour during pendency of
litigation.
33. The learned counsel next referred to the decision
of the Hon’ble Supreme Court in the case of Ramdas vs. Sitabai
and Ors., (2009) 7 SCC 444, wherein the Hon’ble Supreme
Court held that there could be no dispute with regard to the fact
that an undivided share of co-sharer may be a subject-matter of
sale, but possession cannot be handed over to the vendee unless
the property is partitioned by metes and bounds amicably and
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through mutual settlement or by a decree of the court.
34. The learned counsel further referred to the decision
of this Court in the case of Dular Chand Sah & Ors. vs.
Devnath Sah & Ors., 2016 (1) PLJR 158, wherein it has been
observed that the person who is seeking injunction has to satisfy
the Court three ingredients, namely prima facie case, balance of
convenience and irreparable loss. If any of the ingredients is
missing the Court would refuse to grant injunction.
35. The learned counsel further referred to the decision
of the Hon’ble Supreme Court in the case of Ghanshyam Sarda
vs. Sashikant Jha and Ors., (2017) 1 SCC 599, wherein it has
been held that law is well settled by the decision of the Court in
DDA vs. Skipper Construction Co. (P) Ltd., (1996) 4 SCC 622,
that legal consequences of what has been done in breach of or in
violation of the order of stay or injunction can be undone and
the parties could be put back to the same position as they stood
immediately prior to such order of stay or injunction.
36. The learned counsel further referred to the decision
of this Court in the case of The State of Bihar vs. Usha Devi
and another, AIR1956 Patna 455, wherein it has been held that
if a court comes to conclusion that an order passed under Order
39 Rule 1 or 2 have been disobeyed and by a contravention of
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that order the other party in the suit has done something for its
own advantage to the prejudice of the other party, it is open to
the Court under inherent jurisdiction to bring back the party to a
position where he originally stood as if the order passed by the
court has not been contravened. The exercise of this inherent
power vested in the court is based on the principle that no party
can be allowed to take advantage of his own wrong in spite of
the order to the contrary passed by the Court.
37. The learned counsel also referred to the decision of
this Court in the case of Smt. Indrawati Devi vs. Bulu Ghosh
and Ors., AIR 1990 Patna 1, wherein it has been held that the
petitioner must first comply with the mandatory injunction
issued against him and should not take advantage of his own
illegal acts.
38. The learned counsel next referred to the decision
of Orissa High Court in the case of Baishnab Pradhan and
Ors. vs. Guru Charan Pradhan, AIR 2003 Orissa 73, on the
point that it is the duty of the Court to exercise its power under
inherent jurisdiction to bring back the parties to the position
where they originally stood as if the order passed by the Court
had not been contravened.
39. The learned counsel further referred to the decision
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of this Court in the case of Shri Subodh Gopal Bose vs. Dalmia
Jain & Co. Ltd. & Ors., AIR (38) 1951 Patna 266, wherein it
has been held that the party against whom an order of injunction
is made cannot disregard the order on the ground that it is
erroneous in any particular. Right or wrong, the injunction order
binds him, and he disregards it at his peril.
40. The learned counsel next referred to the decision
of Full Bench of Madras High Court in the case of Vidya
Charan Shukla vs. Tamil Nadu Olympic Association and
another, AIR 1991 Madras 323, wherein it has been held that
the Court, in exercise of its inherent power, can pass such order
for the ends of justice as would undo wrong done to the
aggrieved party. Where in violation of order of injunction,
something has been done in disobedience, it will be the duty of
the Court to set the wrong right and not to allow the
perpetuation of the wrong doing. Lastly, it has been held that if
it is found that the party had the knowledge of the order of the
Court, then the Court shall not be powerless and may direct any
person, who may be found to have stood in the way of
implementation of the order, to remove the
construction/obstruction and restore status quo ante, besides any
effective action may be taken in criminal contempt.
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41. On concurrent finding of fact, the learned counsel
referred to the decision of the Hon’ble Supreme Court in the
case of S.P. Deshmukh vs. Shah Nihal Chand Waghajibhai
Gujarati, (1977) 3 SCC 515, wherein the Hon’ble Supreme
Court held that concurrent finding of fact cannot be interfered
with in exercise of the writ jurisdiction.
42. The learned counsel further referred to the decision
of this Court in the case of Arun Kumar Jha vs. Pushpa
Choudhary & Ors., 2013 (4) PLJR 760, wherein it has been
held that if the orders have been passed after taking into account
in detail the pleadings of the respective parties, the correctness
of such order cannot be gone into by this Court in a proceeding
under Article 227 like an Appellate Court. The Court can
interfere with such orders only if it is found that exercise of
jurisdiction or discretion is patently illegal and grossly unjust.
43. The learned counsel further referred to the decision
of the Hon’ble Supreme Court in the case of Kesharlal H.
Pardeshi vs. Vithal S. Patole (Dead) by LRs., (2005) 10 SCC
249, wherein it has been held that the High Court in exercise of
its jurisdiction under Article 227 of the Constitution ought not to
have interfered with the findings arrived at by the two courts
below. On similar proposition of law, the learned counsel
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referred to the decisions of the Hon’ble Supreme Court in the
cases of Illoth Valappil Ambunhi vs. Kunhambu Karanavan,
(2020) 18 SCC 317, Mani Nariman Daruwala and Ors. vs.
Phiroz N. Bhatena and Ors., AIR 1991 SC 1494, D.N. Banerji
vs. P. R. Mukherjee, AIR 1958 SC 58, M/s Atlas Cycle
(Haryana) Limited vs. Kitab Singh, AIR 2013 SC 1172,
Waryam Singh and anr. vs. Amarnath and anr., AIR 1954 SC
215, Keshar Bai vs. Chhunulal, (2014) 11 SCC 438, H.B.
Gandhi & Ors. vs. M/s Gopi Nath & Sons and Ors., 1992 Supp
(2) SCC 312, Hamida and Ors. vs. Md. Kahlil, AIR 2001 SC
2282, Nibaran Chandra Bag vs. Mahendra Nath Ghunghu,
AIR 1963 SC 1895 and Shabbir and another vs. Ashfaq
Ahmad and another, AIR 1988 Allahabad 223.
44. I have given my thoughtful consideration to the
rival submission of the parties and perused the record.
45. Though lengthy submissions have been made on
behalf of the parties and voluminous materials in the form of
authorities have been placed for consideration of this Court, but
the issue involved in the present lis is confined within a narrow
compass. The question before this Court is whether the learned
subordinate courts exceeded their jurisdiction in passing the
impugned orders directing the petitioner to remove the structure
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from her purchased land which is part of the suit property and
other consequential orders for removal of structure and putting
the land to the same position as existing prior to the construction
made by the petitioner after purchase, by passing the direction
to the administrative authorities. Therefore, before referring to
the authorities and rulings cited on behalf of the parties, it would
be beneficial to recapitulate the facts of the case.
46. The genesis of the present case is the institution of
Title Partition Suit No. 531/2013 by the respondent no.1 against
his co-sharers. The suit land is about 14 acres for which
partition has been sought. As per the statement of respondent
no.1 in his partition suit, the respondent nos. 4 & 5, who are
brothers of respondent no.1, are entitled to 1/12th share in the
suit property of 14 acres. It further transpires that ex-parte
injunction order came to be passed on 06.02.2016. The
defendant nos. 3 & 4/respondent nos. 4 & 5 appeared in the suit
on 23.09.2019 & 01.10.2019, respectively. During pendency of
the suit, the respondent nos. 4 & 5 executed two registered sale
deeds dated 01.03.2017 and 22.11.2017 in favour of the
petitioner for 16.88 decimals of land appertaining to Khata No.
152, Plot No. 360 of village- Paiga, P.S.-Barhara, District-
Bhojpur and the area of plot is about 76 decimals. The petitioner
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claims to have constructed the house and shops on her
purchased land prior to 01.05.2019. Now the petitioner was
added as a party vide order dated 16.07.2019 and the learned
trial court passed further order for maintaining status quo and to
stop the construction on 14.11.2019.
47. Though it has been strenuously argued on behalf of
respondent no.1 that the petitioner was having knowledge of the
pendency of the partition suit as well as the injunction order
over the suit property, the material placed on record does not
lead to any such inference. Admittedly, the petitioner filed
vakalatnama in Title Partition Suit No.531/2013 on 07.05.2019
and also filed petitions on 07.05.2019, 10.05.2019 and
13.05.2019, which were disposed of on 20.05.2019.
48. It is claimed by the respondent no.1 that in a
proceeding before the administrative authorities under Sections
144 as well as 181 Cr.P.C., there has been submission on part of
the petitioner which shows the petitioner was having
knowledge, but the record does not help the Court to record any
unequivocal findings in this regard.
49. Moreover, this Court in a proceeding under Article
227 of the Constitution of India would not like to venture into
the disputed question of facts, which is better left to be decided
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by the learned subordinate courts. At the same time, the facts
need to be assessed in the light of the order of learned Sub
Judge-8, Bhojpur dated 20.05.2019 in Title Partition Suit No.
531/2013 whereby and whereunder the learned trial court
specifically ordered, in respect of the petitioner, making it clear
that the order dated 01.05.2019 directing the parties to maintain
status quo would not be effective against the petitioner. By the
order dated 01.05.2019, the parties were directed to maintain
status quo with regard to disputed land and further order was
passed for stopping the construction work. The respondent no.1
has filed his suit against the petitioner vide Title Suit No.
703/2018 and the learned Sub Judge-7, Bhojpur dismissed the
application filed by the plaintiff/respondent no.1 seeking
injunction over the suit property. Therefore, from the material
available on record, at this stage, it is not possible to infer with
certainty that the petitioner was aware about the injunction order
and she deliberately and willfully violated the same.
50. When an application is filed under Order 39 Rule
2A of the Code, then under Rule 459 of the Civil Court Rules
of High Court of Judicature at Patna, a miscellaneous judicial
case is to be instituted. If the manner of doing a particular act is
prescribed under any statute, the act must be done in that
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manner or not at all. In this regard, a reference could be made
to the decision of the Hon’ble Supreme Court in the case of
Meera Sahni vs. Lieutenant Governor of Delhi and Ors.,
(2008) 9 SCC 177. It would be relevant to quote paragraph 35
of the said decision :
“35. It is by now a certain law that an
action to be taken in a particular manner as
provided by a statute, must be taken, done or
performed in the manner prescribed and in no
other manner. In this connection we may
appropriately refer to the decision of this Court in
Babu Verghese v. Bar Council of Kerala [(1999) 3
SCC 422] wherein it was held as under : (SCC pp.
432-33, paras 31-32)
“31. It is the basic principle of law long
settled that if the manner of doing a particular act
is prescribed under any statute, the act must be
done in that manner or not at all. The origin of this
rule is traceable to the decision in Taylor v. Taylor
[(1875) 1 Ch D 426] which was followed by Lord
Roche in Nazir Ahmad v. King Emperor [(1936) 63
IA 372 : AIR 1936 PC 253 (2)] who stated as
under : (IA pp. 381-82)
‘where a power is given to do a certain
thing in a certain way, the thing must be done in
that way or not at all.’
32. This rule has since been approved by
this Court in Rao Shiv Bahadur Singh v. State of
Vindh Pradesh, AIR 1954 SC 322 and again in
Deep Chand v. State of Rajasthan AIR 1961 SC
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Judge Bench of this Court in State of U.P. v.
Singhara Singh AIR 1964 SC 358 and the rule laid
down in Nazir Ahmad case (supra) was again
upheld. This rule has since been applied to the
exercise of jurisdiction by courts and has also been
recognised as a salutary principle of
administrative law”.
51. But surprisingly the learned trial court did not
consider this aspect of the matter and without making any
inquiry went on to pass orders holding the petitioner guilty of
violating the injunction orders. More surprisingly, the learned
appellate court in Misc. Appeal No.37/2022 did not find any
irregularity in not instituting the miscellaneous judicial case by
the learned trial court. The learned appellate court took the stand
on grandiose notion of upholding the dignity and majesty of the
rule of law and to put such person in place who shows scant
respect for the rule of law. Though the intent of subordinate
courts may be pious and praiseworthy, still the courts could only
act within the four corners of law and could not bypass the
procedure established by law and short-circuit the proceedings.
If a miscellaneous judicial case has to be instituted, the
subordinate courts could have proceeded in the matter after
institution of the same and not otherwise. In this regard, a
reference could be made to the decision of the Hon’ble Supreme
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Court in the case of K.Valarmathi v. Kumaresan, 2025 SCC
OnLine SC 985, wherein it has been held in paragraph 12 as
under :
“Procedural law provides the necessary
legal infrastructure on which edifice of rule of law is
built. Short-circuiting of procedure to reach hasty
outcomes is an undesirable propensity of an
overburdened judiciary. Such impulses rendering
procedural safeguards and substantive rights otiose,
subvert certainty and consistency in law and need tobe discouraged”.
52. It has been submitted on behalf of the respondent
no.1 that the courts below proceeded in the matter not under
Order 39 Rule 2A of the Code but under Section 151 of the
Code. I think this argument is misconceived. The application
has been filed under Order 39 Rule 2A of the Code by the
respondent no.1, even submission was made before the learned
trial court that in the light of the Order 39 Rule 2A of the Code,
the vendors and vendee be punished to keep them in civil prison
for three months and after attaching disputed land, it should be
converted into a vacant land. Nowhere, the learned trial court
mentioned that it was passing the order under Section 151 of the
Code and not even the appellate court proceeded in the matter
against the order passed on an application under Order 39 Rule
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2A of the Code specifically mentioning this fact. Moreover,
when there is specific provision to deal with the matter under
Order 39 Rule 2A, there could be no application of Section 151
of the Code.
53. Now, Order 39 Rule 2A of the Code reads as
under:
“2A. Consequence of disobedience or
breach of injunction.-
(1) In the case of disobedience of any
injunction granted or other order made under rule 1
or rule 2 or breach of any of the terms on which the
injunction was granted or the order made, the Court
granting the injunction or making the order, or any
Court to which the suit or proceeding is transferred,
may order the property of the person guilty of such
disobedience or breach to be attached, and may also
order such person to be detained in the civil prison
for a term not exceeding three months, unless in the
meantime the Court directs his release.
(2) No attachment made under this rule
shall remain in force for more than one year, at the
end of which time if the disobedience or breach
continues, the property attached may be sold and out
of the proceeds, the Court may award such
compensation as it thinks fit to the injured party and
shall pay the balance, if any, to the party entitled
thereto”.
54. Therefore, for violation of an injunction order, a
person can be punished by keeping him/her in civil prison for
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three months and by attaching of his/her property extendable up
to one year. Hence, passing an order whereby and whereunder
the petitioner has been directed to demolish the construction
made by her under the provisions of Order 39 Rule 2A of the
Code is simply not permissible.
55. Another glaring mistake committed by the learned
trial court in passing the impugned order dated 27.05.2022 is
that the said order was passed without hearing the petitioner,
who has to ultimately bear the brunt of the order. It is the settled
principle of law that no person should be condemned unheard.
But this principle was given a complete go-bye by the learned
trial court and the learned appellate court also failed to take
notice of this fact.
56. When no notice was given to the petitioner before
passing of injunction order, initiation of a proceeding against the
petitioner under Order 39 Rule 2A of the Code is highly
irregular and not sustainable. If the petitioner was having no
notice of the injunction order operating against the land she
purchased, directing her to take drastic measures like demolition
the structures erected by her without giving an opportunity of
hearing is not only illegal but also against commonsense. If the
learned subordinate courts felt that the petitioner was having
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knowledge all along about the injunction order and despite the
injunction order, she continued the construction and flouted the
orders passed for maintaining status quo, the court should have
given an opportunity to the petitioner to dispel the contention
raised by respondent no.1 and the learned subordinate courts
were further required to record their findings in no uncertain
terms about knowledge of the petitioner and her willful conduct.
But the same required a detailed inquiry, which was never
conducted and showing undue haste, the learned subordinate
courts, perhaps, got swayed by the emotional appeal of
respondent no.1, a learned Advocate himself.
57. Though the petitioner was given a hearing at the
appellate stage, but as held by the Hon’ble Supreme Court in the
case of Tilak Chand Magatram Obhan (supra) that a
subsequent hearing cannot cure the defect of absence of hearing
for the petitioner before the learned trial court which passed the
first order on a petition filed under Order 39 Rule 2A of the
Code.
58. Another omission not taken note of by the learned
subordinate courts is that the petitioner was proceeded for
violation of the injunction order dated 06.02.2016 when she was
not even a party. So where was the occasion for the learned
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subordinate courts to expect compliance of an order for which
there was no notice to the petitioner. Much stress has been put
by the learned counsel for the respondent no.1 that vide order
dated 14.11.2019, the learned trial court has made it clear that
the petitioner would also come under the purview of orders
dated 06.02.2016 and 01.05.2019. But when the petitioner has
been taken out of ambit of order dated 01.05.2019 and she was
not a party to the order dated 06.02.2016, then without recalling
the order dated 20.05.2019, it is beyond comprehension that by
order dated 14.11.2019, the previous order has been made
applicable against the petitioner. Retrospective application of
injunction order against a person who has subsequently become
party in the suit is unheard of an simply impermissible and it
appears the learned trial court did not for a moment think over
the implication of its own orders.
59. The respondent no.1 has repeatedly claimed that
the petitioner was in knowledge of things from the very
beginning and even her sale deed was void as executed against
the specific injunction orders being lis pendens purchase, unless
it is proved that the petitioner was having knowledge, it cannot
be said that she acted in disobedience of the orders of injunction
passed by the learned trial court and for the same a proper
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inquiry is required to be conducted and she could not be held
guilty in summary manner.
60. It has also been contended by the learned counsel
for the respondent no.1 that this Court should not disturb the
concurrent findings of two courts in exercise of its power under
Article 227 of the Constitution of India. But when this Court
finds that the exercise of jurisdiction or discretion is perverse,
patently illegal and grossly unjust, there is no hindrance in
exercising the power under Article 227 of the Constitution of
India.
61. Another aspect of the matter, though not directly in
issue the present matter, yet which needs to be taken note of, is
that the respondent nos. 4 & 5, who are brothers of respondent
no.1, who sold the suit property during the pendency of the
partition suit, have nowhere been taken to task by both the
subordinate courts. They are the first culprits if they executed
the sale deeds knowing about the same in violation of the
injunction orders. Still, no action has been taken against them
and it shows the respondent no.1 is not interested in punishing
the primary culprits and perhaps has taken a lenient view for the
reason that they are his brothers. The whole effort of respondent
no.1 appears to be towards penalizing the petitioner who was
Patna High Court C.Misc. No.68 of 2024 dt. 31-07-2025
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not made party till 2019 in Title Suit No. 531/2013.
62. The plethora of authorities cited by the learned
counsel for the respondent no.1 would have helped the cause of
respondent no.1, if there were no dispute about the knowledge
of the petitioner and there were further finding that she has been
deliberately and willfully disobeyed the orders of the court
without thinking of consequences. But in the light of the
discussion made hereinbefore, I am of the considered view that
the authorities cited by the respondent no.1 are distinguishable
on facts of the case and could not have any application in the
present case.
63. It is apposite to refer the Constitution Bench
decision of the Hon’ble Supreme Court in the case of State of
Orissa vs. Sudhansu Sekhar Misra and Ors., AIR 1968 SC
647, wherein the Hon’ble Supreme Court held that a decision is
only an authority for what it actually decides and further held
that what is of the essence in a decision is its ratio and not every
observation found therein nor what logically follows from the
various observations made in it. The Hon’ble Supreme Court
quoted Halsbury LC in Quinn vs. Leathem, 1901 AC 495.
“Now before discussing the case of
Allen v. Flood, (1898) AC 1 and what was
decided therein, there are two observations of a
Patna High Court C.Misc. No.68 of 2024 dt. 31-07-2025
44/45general character which I wish to make, and
one is to repeat what I have very often said
before, that every judgment must be read as
applicable to the particular facts proved, or
assumed to be proved, since the generality of
the expressions which may be found there are
not intended to be expositions of the whole law,
but governed and qualified by the particular
facts of the case in which such expressions are
to be found. The other is that a case is only an
authority for what it actually decides. I entirely
deny that it can be quoted for a proposition
that may seem to follow logically from it. Such
a mode of reasoning assumes that the law is
necessarily a logical Code, whereas every
lawyer must acknowledge that the law is not
always logical at all”.
64. Therefore, in the light of the discussion made
hereinbefore, I am of the considered opinion that the learned
appellate court as well as learned trial court committed gross
error of jurisdiction while passing the orders dated 16.12.2023
and 27.05.2022. Hence, both the impugned orders could not be
sustained and the same are set aside.
65. Accordingly, present petition stands allowed.
66. However, it is made clear that anything said or
observed here is only for the purpose of the disposal of the
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45/45
present petition and would not cause prejudice to the case of the
parties.
67. Pending interlocutory application, if any, also
stands disposed of.
(Arun Kumar Jha, J)
V.K.Pandey/-
AFR/NAFR AFR CAV DATE 20.06.2025 Uploading Date 31.07.2025 Transmission Date NA
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