Court No. - 30
Case :- MATTERS UNDER ARTICLE 227 No. - 8446 of 2017 Petitioner :- Shri Govind Chawla And Another Respondent :- Sri Surendra Singh Chawla And Another Counsel for Petitioner :- Prem Chand Jain Counsel for Respondent :- Swapnil Kumar
Hon'ble Vivek Kumar Birla,J.
Heard Sri Prem Chand Jain, learned counsel for the petitioners and Sri Swapnil Kumar learned counsel for the respondent.
This writ petition has been filed to set aside the impugned judgement and orders dated 18.03.2017 passed by Civil Judge (S.D), Agra in O.S. No. 528 of 2016 Govind Chawla and other v. Surendra Singh Chawla and other the dated 09.11.2017 passed by Special Judge S.C/S.T Act, Agra in Civil Misc. Appeal No. 72 of 2016 Govind Chawla and other v. Surendra Singh Chawla and other.
The details of the case have been given in the order dated 14.12.2017, which is quoted as under:
"Heard Shri Ravi Kant, Senior Advocate assisted by Shri P.C. Jain, learned counsel for the petitioners.
By means of present writ petition, the petitioner has challenged the impugned order dated 18.03.2017 passed by Civil Judge (S.D.) Agra in O.S. no.528/2016 (Govind Chawla and others vs. Surendra Singh Chawla and other) as well as the order dated 09.11.2017 passed by Special Judge (S.C./S.T. Act), Agra in Civil Misc. Appeal no.72 of 2016 (Govind chawla and other vs. Surendra Singh Chawla and others). Further prayer has been made to pass in interim order restraining the defendants/respondents from interfering in the running of the petitioners' business in the property no.4/45 Balu Ganj, Agra, Property no.421/3 Bye Pass Road, Agra and in their residence in House no.41 Daya Nagar, Agra and to sell/transfer or otherwise create any third party interest in disputed properties till the final decision in O.S. no.528 of 2016 (Shri Govind Chawla and others vs. Shri Surendra Singh Chawla and others) pending before the Court of Civil Judge (Senior Division) Agra.
Shri Ravi Kant, learned Senior Advocate apprised to the Court that petitioners have filed suit no.588 of 2016 alongwith 8-C application seeking interim injunction and the said application was rejected on 18.03.2017 holding that the originals of family arrangements were not filed and properties were joint properties of parties and the said order has been assailed by preferring Misc. Appeal no.72 of 2017 and the same has also been rejected vide order dated 09.11.2017. In this backdrop, he submits that in the present matter, the dispute is inter-se family and there is a legal presumption of HUF, which provides that every Hindu Family is joint in food, worship and estate and in the absence of any proof of decision, such legal presumption continues to operate in the family and as such, the claim of self acquired property has to be proved. In support of his submission, he has placed reliance on the judgement passed by the Apex Court in Adiveppa and others vs. Bhimappa and another AIR 2017 SC 4465.
The matter requires consideration.
Issue notice to both the respondents. Steps be taken within a week returnable at an early date.
All the respondents are accorded four weeks' time to file counter affidavit. The petitioner will have one week thereafter to file rejoinder affidavit. List thereafter.
Till the next date of listing, the parties shall maintain status quo in the matter as of today."
During the course of arguments, it was contended by learned counsel for the petitioner that there had been three family settlement/compromise between the parties and when the same were not honoured, O.S. No. 528 of 2016 was filed for declaration regarding family agreement entered into between the parties on various dates. The interim injunction was refused on the ground that petitioner has failed to make a case for grant of interim injunction within the four corners of Order 39 Rule 1 CPC. The Misc. Appeal was filed which was also dismissed.
Challenging the same, submission of learned counsel for the petitioner is that the family agreement between the parties on three different dates have not been denied but the defendants have not respected the same. He submitted that the defendants even sought to mortgage the property, whereas the status quo order was granted by this Court on 14.12.2017 and was operating and therefore, it is necessary to maintain the order of status quo at least during the pendency of the case and the plaintiff petitioner are entitled for interim injunction.
Per contra, Sri Swapnil Kumar, learned counsel is seriously disputing the correctness of allegation of statement that none of the documents placed before this Court can be considered as a family settlement or compromise between the parties and it has not been proved that the property involved in the suit was the property of HUF. He sought to argue that the property, in fact, was self acquired property to defendant no. 2 Balwant Singh Chawla and therefore, there can be no family settlement between the parties. He further pointed out that in fact, now there is no reason to continue with the order of status quo and by drawing attention to the document annexed with the supplementary affidavit, he submits that petitioners are misusing the order of status quo and in the light of order of this Court dated 14.12.2017, the plaintiffs are moving application in writing to the Managing Director, AFTEK Motors that the status quo should be maintained, otherwise he will be liable for misconduct. He stated that a letter was also written to the transport authority Agra that the property is under litigation and therefore, trader certificate in the name of Ms. Chawala, Enterprises may not be issued. A letter was also written to the Commissioner, in the light of the aforesaid status quo order and also to the Canara Bank so that the bank account of Ms. Chawala may not be operated. He submits that although the plaintiffs have failed to make out their case within the four corner of Order 39 Rule 1 CPC for grant of an interim injunction but still in the garb of the order of status quo they are interfering in the normal functioning of the business by writing such letters.
I have considered the statement and perused the record and gone through the document extensively and have considered argument of learned counsel for the parties at length.
In the facts and circumstances of the case, particularly, the fact that the evidence is in progress and PW 1 and PW 2 have also been examined, order of status quo is modified to the effect that no third party right by any of the parties on the properties in question shall be created and the normal running of the business shall not be affected by the order of status quo.
The order of status quo stands modified to the extent would continue during pendency of the suit however with the modification as observed above.
In the facts of the case and also in view of the involvement of a running business, which is subject matter of dispute, it is provided that the trial court shall make all efforts to decide the case itself preferably within a period of nine months by fixing short dates and no unnecessary adjournment shall be granted.
In case any adjournment is granted, after two consecutive adjournment, the same shall be granted only on payment of Rs. 5,000/-.
The impugned orders dated 18.03.2017 and 09.11.2017 are set aside. However, the order of status quo shall remain operative to the extent and in the manner as indicated above.
The petition stands allowed. However, with the observation as made above.
It is, however, made clear that this order shall not be treated as any kind of observation in favour of any parties as the same has been passed mainly to protect the running business and the Court below shall proceed to consider the case on its own merits.
Order Date :- 28.2.2019 Ujjawal