Dismissed

Dinesh Parmar v. Smt. Usha Sharma

Rajasthan HC5 Feb 2022CW/1605/2021

Case brief

AI extract

What is this about?

Petitioners challenged the trial court's order rejecting an application to appoint a site commissioner and implead a respondent. The High Court dismissed the writ petition, upholding the trial court's view that the petitioner bears the burden of proving contempt by adducing sufficient and relevant evidence.

What did the court decide?

Impugned order quashed; pending applications disposed of.

Dinesh Parmar Vs Smt. Usha Sharma — Civil Procedure and Limitation | Rajasthan HC (2022)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Writ Petition No. 1605/2021

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Dinesh Parmar S/o Shri Mool Chand Ji, Aged About 58 Years, By Caste Jain, Resident Of B-45, Shastri Nagar, Jodhpur Through Power Of Attorney Holder Ayub Khan S/ o Shri Ahmed Khan, By Caste Musalman, Aged About 49 Years, Resident Of B-14, Marudhar Nagar, Pal Link Road, Kamla Nehru Nagar, Jodhpur.

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Lalit Parmar S/o Shri Mool Chand Ji, Aged About 53 Years, By Caste Jain, By Caste Jain, Resident Of B-45, Shastri Nagar, Jodhpur Through Power Of Attorney Holder Ayub Khan S/o Shri Ahmed Khan, By Caste Musalman, Aged About 49 Years, Resident Of B-14, Marudhar Nagar, Pal Link Road, Kamla Nehru Nagar, Jodhpur.

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----Petitioners

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Versus

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Smt. Usha Sharma W/o Shri Taresh Sharma, By Caste Brahmin, C/o Anshu Sharma, Resident Of Behind T.b. Hospital, Pal Link Road, Jodhpur.

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Raj Kumar Vyas S/o Late Shrigordhan Das Ji, By Caste Brahmin, Resident Of A-345, Shastri Nagar, Jodhpur.

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----Respondents

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For Petitioner(s)	: Mr. Narendra Thanvi on VC.
For Respondent(s)	: Mr. O.P. Boob on VC.

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HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI Judgment

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Reserved on 02/02/2022 Pronounced on 05/02/2022

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In the wake of instant surge in COVID – 19 cases and spread of its highly infectious Omicron variant, lawyers have been advised to refrain from coming to Courts.

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This writ petition has been preferred claiming the following

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reliefs:

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(2 of 5)

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“ It is, therefore prayed that this Hon’ble Court may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction: -

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(i) quash the impugned order dated 21.11.2020 ( ANNEXURE-4 ) passed by the Learned Additional District Judge No.4, Jodhpur Metropolitan in Civil Misc. Case No. 145/2020; and

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(ii) the application filed by the petitioners/applicants under Order 39 Rule 7 read with Section 151 C.P.C may be allowed with costs in toto”

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Learned counsel for the applicants/petitioners submits that the respondent No.1 had filed a suit for declaration, permanent and mandatory injunction against the petitioners before the learned trial court, and that in pursuance of the same, the learned trial Court passed an order directing the parties involved therein to maintain the status quo regarding the shop premises in question; and that, despite the said order being in force, the said property was further alienated by respondent No.1 to respondent No. 2.

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Learned counsel for the applicants/petitioners further submits that despite the respondent No.1 having acted in violation of the status quo order, the application so preferred by her to implead the respondent No.2 was allowed by the learned trial court, and therefore, the petitioners preferred a contempt petition before the learned trial Court, in which a subsequent application was preferred by the petitioners under Order 39 Rule 7 read with Section 151 of the Code of Civil Procedure ( for short, ‘CPC’ ) praying therein that a site commissioner be appointed to inspect the shop premises in question.

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Learned counsel for the applicants/petitioners further submits that the respondent No.2 was causing damage to the

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(3 of 5)

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shop premises in question, although this was denied by said respondent No. 2 in his reply; however, the learned trial court has rejected the aforementioned application so preferred by the petitioners, vide the impugned order dated 21.11.2020.

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Learned counsel for the applicants/petitioners also submits that the aforesaid application was rejected by the learned trial court without going into the merits. Learned counsel for the applicants/petitioners thus submits that being aggrieved by the impugned order passed by the learned trial court, the present petition has been preferred claiming the aforementioned reliefs. 8. Learned counsel for the applicants/petitioners, in support of his submissions, relied upon the following judgments: 8.1 In 2008 (1) D.N.J. (Raj.) 128 : D.B. Civil Special Appeal (Writ) No. 1499 of 2006 Surendra Sawhney Vs. Muralidhar

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& Ors. wherein at Paras. 20 and 21, the Hon’ble Division Bench of this Court observed:

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“ 20. The legal position, thus, appears to be well crystallised that inspite of the trial of the suit having been stayed under Section 10 of the Code of Civil Procedure, the consideration of the application/s for the interlocutory reliefs, such as grant of injunction, appointment of receiver, attachment before judgment, impleadment of a party, amendment in the plaint etc., may be considered and order passed because such an order cannot be taken to be a step in the trial of the suit.

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21. Seen thus, it is apparent that the Trial Court failed to exercise the jurisdiction vested in it in deferring the consideration of the two applications made by the plaintiff. We find no justification in order of the trial Court in deferring the consideration of these two applications until the decision of he civil suit (301/1992) by Delhi High Court.”

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(4 of 5)

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8.2 In 1999 Allahabad 1 : Civ. Misc. Writ Petn. No. 13293

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of 1998 Rameshwar Vs. Vth Addl. Dist. Judge, Basti and

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others. wherein at Para 6, the Hon’ble Allahabad High Court observed:

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“ Our experience shows that on many occasions for some reason or other further proceedings are stayed. In order to carry on the process of the suit certain steps are to be taken in aid of the proceedings or any other measures to keep the proceedings alive. The purpose of grant of stay is not the purpose to delay the process. If the interlocutory matter are decided and the suit is kept ready to proceed further as soon as the stay of further proceeding cease to be operative from a stage which could have arrived to ripen the case by disposing of interlocutory matter in between without affecting the merit of the case would be in aid of the judicial process and as such not unwelcomed. On the other hand it would shorten the time and help the parties to make the suit ready.”

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On the other hand, learned counsel for the

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non-applicants/respondents draws the attention of this Court towards the impugned order, and submits that the onus to prove the contents of the contempt petition by adducing sufficient evidence, lies upon the applicant/petitioner himself, who has filed the contempt petition, and that, the applicant/petitioner cannot be permitted to devise any method so as to enable him to collect such evidence through the court before which contempt petition has been filed.

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Heard learned counsel for the parties as well as perused the record of the case, alongwith the precedent laws cited above.

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This Court is in complete agreement with the findings arrived at by the learned trial court in the impugned order, wherein it was observed that the onus to prove the contents of the contempt

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(5 of 5)

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petition by producing the sufficient and relevant evidence before the learned trial court, has to be lawfully discharged by the applicant/petitioner, and any attempt on the part of the applicant/ petitioner regarding collecting such evidence through the court cannot be permitted in any manner whatsoever.

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Thus, in light of the aforesaid observations, no case for making any interference is made out.

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Consequently, the present petition is dismissed. All pending applications stand disposed of.

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(DR.PUSHPENDRA SINGH BHATI),J.

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9-SKant/-

Dinesh Parmar v. Smt. Usha Sharma

Case brief

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Dinesh Parmar v. Smt. Usha Sharma

Case brief

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