Dismissed

Khaja Kamalluddin and Ors. v. The State Of Bihar and Ors.

Patna HC2 Sept 2013CWJC/17339/2012

Case brief

AI extract

What is this about?

Single judge Writ Petitioner challenged High Court direction to maintain status quo in a title suit. Court held no compelling circumstances exist and dismissed the application, directing parties to maintain status quo while Trial Court expedites the suit.

What did the court decide?

Application dismissed; order directing maintenance of status quo stands. Petitioner permitted to seek permission if urgent financial need arises for selling the property.

Khaja Kamalluddin and Ors. Vs The State Of… — Civil Procedure and Limitation | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Civil Writ Jurisdiction Case No.17339 of 2012

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Khaja Kamalluddin Asq Son of Late Abdul Rahman A Resident of the Village Khajesarai, P.O. Khodaibagh, P.S. Khaira and District Saran

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Md. Khurshid

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Md. Parvez

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Md. Javed

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(Petitioner No. 2 to 4 are sons of Late Riqib) Resident Of The Village Khajesarai, P.O. Khodaibagh, P.S. Khaira and District Saran

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.... Defendants in the Court below.... Petitioners Versus

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The State Of Bihar, Through the Chief Secretary, Old Secretariat, Government of Bihar, Patna- 1

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Nasimul Haque Son of Late Samimul Haque a Resident of the Village Khajesarai, P.O. Khodaibagh, P.S. Khaira and District Saran

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.... Plaintiff in the Court below.... Respondents ====================================================== Appearance :

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For the Petitioner/s : Mr. Shiv Shankar Prasad Yadav

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For the Respondent No. 2 : Mr. J.S. Barnwal For the State : Mr. Chandra Shekhar Azad G.A.-9

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====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI

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SHARAN SINGH

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ORAL ORDER

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3 02-09-2013 The present application under Article 227 of the

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Constitution of India has been filed for setting aside the judgment dated 28.04.2012 passed in Miscellaneous Appeal No. 46 of 2011 by the Court of learned Additional District Judge, IV at Chapra (Saran).

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By the impugned order, the learned appellate Court below

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has set aside an order dated 09.08.2011 passed by learned Sub-

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Judge IV, Chapra (Saran) in Title Suit No. 287 of 2010 whereby

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he had rejected a petition dated 26.07.2010 filed on behalf of

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Patna High Court CWJC No.17339 of 2012 (3) dt.02-09-2013 P2/4

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Respondent No. 2, who is the plaintiff before the Trial Court.

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The petitioners herein are the defendants in said Title Suit No. 287 of 2010. Petitioner No. 1 is said to have purchased the suit property from petitioner No. 2 and petitioner No. 3. Petitioners No. 2 and 3 are defendants No. 1 and 2 in the suit. The plaintiffs’ claim is that the suit property was allotted to his father Dr. Shamimul Haque. The properties situated in Muzaffarpur and Motihari were allotted to his brother Md. Raqueeb whereas the residential house remained joint. The Petitioners No. 2 and 3 (Defendants No. 1 and 2 before the Court below) are descendants of Md. Raqueeb. The case of the plaintiff before the Court below is that by a registered sale deed dated 13.10.2009, the defendants No. 1 and 2 (Petitioners No. 2 and 3) sold the suit property to defendant 2^nd set to which they were not entitled to.

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The Trial Court, rejected prayer for injunction while considering an application filed by the plaintiff which was challenged in Miscellaneous Appeal No. 46/2011. The Miscellaneous Appeal was sent to the records of learned Additional District Judge-IV, Chapra (Saran), who, in the facts and circumstances of the case, thought it fit to direct the parties to maintain status quo during the pendency of the suit by not changing the nature of the suit property. Learned appellate Court

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Patna High Court CWJC No.17339 of 2012 (3) dt.02-09-2013 P3/4

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below, vide the impugned order also restrained the parties from dealing with the suit property.

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Learned counsel appearing on behalf of the petitioner has submitted that the suit property purchased by them was within the share of the defendants 1^st set who are Petitioners No. 2 and 3 herein and in the facts and circumstances of the case, the Court below ought not to have granted status quo and to have interfered with the order of the Trial Court.

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From the impugned order I find that the Court below, while asking the parties to maintain status quo has requested the Trial Court to expedite the case so that the suit may be disposed of as early as possible.

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This is well settled principle that while considering an application under Order XXXIX Rule 1, the Courts are required to consider the aspect that the property in dispute is preserved so that there may not be any hindrance or complication at the stage of execution of decree after conclusion of trial.

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I do not find any compelling circumstance for the petitioner so as to affect him adversely by operation of the order of the status quo as the petitioner has no intention to sell the property in near future. The order directing the parties to maintain status quo to the facts and circumstances of the case needs no

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Patna High Court CWJC No.17339 of 2012 (3) dt.02-09-2013 P4/4

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interference. It is however, made clear that if the petitioner is in urgent need for money by selling the suit property, he will have the opportunity to approach the Court below seeking appropriate order and permission.

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With this observation this application is disposed of.

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Saif/-

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(Chakradhari Sharan Singh, J.)

Khaja Kamalluddin and Ors. v. The State Of Bihar and Ors.

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Khaja Kamalluddin and Ors. v. The State Of Bihar and Ors.

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