Dismissed

Mahboob Ali v. Narendra Meena

Rajasthan HC22 Sept 2014CMA/3263/2005

Case brief

AI extract

What is this about?

The High Court dismissed a civil miscellaneous appeal against an order dismissing an application for willful disobedience. The Judge held that constructing a wall did not amount to willful disobedience of an order against dispossession and that possession and access are not synonymous.

What did the court decide?

The miscellaneous appeal was dismissed with liberty to agitate the issue of access via proper legal remedies.

Mahboob Ali Vs Narendra Meena — Civil Procedure and Limitation | Rajasthan HC (2014)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH

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ORDER

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Mehboob Ali Vs. Narendra Meena (S.B. Civil Miscellaneous Appeal No.3263/ 2005)

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S.B. Civil Miscellaneous Appeal under Order 43 Rule 1 CPC against the order dated 19-9-2005 passed by the additional District Judge, No.4 Kota whereby application under Order 39 Rule 2(A) CPC has been dismissed.

Date of Order:

Septem ber 22, 2014.

PRESENT

HON'BLE MR. JUSTICE ALOK SHARMA

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Mr. Rajvir Sharma, for the appellant. Mr. Sanjay Singhal, for respondent.

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BY THE COURT :

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This misc. appeal has been filed against the order dated 19-92005 passed by Additional District Judge No.4 Kota dismissing appellant-applicant's (hereinafter `the applicant') application under Order 39 Rule 2A CPC for the purported violation of its order dated 3-6-2004. Thereunder the learned Additional District Judge in a miscellaneous appeal arising from an interim order dated 7-5-2002 passed by Civil Judge No.3 Kota (South) had directed that the applicant (appellant before him) would not be dispossessed except in accordance with law.

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While considering the applicant's application under order 39 Rule 2A CPC alleging that the court's order dated 3-6-2004 has

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been willfully disobeyed, the learned Additional District Judge held that the as per applicant's own admission it was apparent that the applicant was not dispossessed but allegedly construction of a wall to thwart the applicant's access to the land in question, purportedly in his possession was made. It was held that the construction of wall, as alleged, if at all, supplied a fresh cause of action to the applicant to take his remedies in law if aggrieved. As far as willful disobedience of the order dated 3-6-2004 was concerned, no case could be made out, was the view of the court below.

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Learned counsel for the applicant Mr. Rajvir Sharma submits that the order dated 3-6-2004 passed by the Additional District Judge directing that the applicant be not dispossessed except in accordance with law, included a restrain on obstructing access to the suit land by any means including by construction of a wall as done by the respondent. Construction of a wall according to counsel, tantamounted to willful disobedience of the court's order dated 3-62004 restraining the respondents from not dispossessing the applicant from the land in his possession except in accordance with law.

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Heard. Perused the order dated 19-9-2005.

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I am afraid that the construction of a wall by respondent as alleged, cannot tantamount to willful disobedience of the court's order dated 19-9-2005. Counsel appears to be mix-up the relief of protection of possession except by due processes with the right to

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access the suit land allegedly in the applicant's possession. In my considered opinion, possession and obstruction of access cannot be considered as synonyms until the obstruction was absolute. No such evidence was laid before the appellate court.

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In the circumstances nothing erroneous can be found in the order dated 19-9-2005, which is impugned in this misc. appeal. There is no force in this miscellaneous appeal. Dismissed.

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The applicant shall however be free to agitate the issue of access to the property in dispute, of which he allegedly is in possession by resorting to his remedy available in law.

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( Al ok Shar ma) , J.

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ar n/

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All corrections made in the order have been incorporated in the order being emailed.

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Arun Kumar Sharma, Private Secretary.

Mahboob Ali v. Narendra Meena

Case brief

What is this about?

What did the court decide?

Mahboob Ali v. Narendra Meena

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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