Abdul Salam And Ors vs Rimember Khasia And Ors

[1] There is a limit to which the parties can be allowed to litigate, more so by a cantankerous plaintiff who has filed the instant petition seeking interference with the impugned order dated 29th June, 2019 passed by the learned Civil Judge (Sr. Division), Kailashahar, Unakoti Judicial District, in Civil Misc (O) 18 of 2019 titled as Md. Abdul Salam Versus Md. Surfan Ali, refusing to attach 461 trees standing on the land in relation to which order of attachment was passed.

[2] The instant petition is filed under Article 227 of the Constitution of India, at the first instance only it ought to have been dismissed, if not for any other, than the sole reason, that plaintiff failed to plead and place on record all facts and documents leading to the filing of the instant petition.

[3] On 21st December, 2015, Title Suit No.08 of 2018 was filed by Md. Abdul Salam against Rimember Khasia which came to be dismissed by the learned Civil Judge, Sr. Division, Court No.1, Kailashahar, Unakoti, Tripura vide judgment dated 31st January, 2019 titled as Md. Abdul Salam Versus Sri Rimember Khasia. The said suit pertained to a specific performance of the alleged contract dated 13th March, 2003 in relation to the trees in question.

[4] It is a matter of record that appeal filed by both the plaintiff and the defendant stood dismissed by the learned District Judge, Unakoti District Judiciary in Title Appeal No.08 of 2019 vide judgment dated 20th July, 2019 titled as Sri Rimember Khasia Versus Md. Abdul Salam & another.

[5] Such documents are not placed on record.

[6] On 18th November, 2009 yet another suit bearing No.47 of 2009 was filed by the plaintiff which was dismissed by the learned Civil Judge (Senior Division), Kailashahar, North Tripura District vide judgment dated 30th July, 2011 titled as Md. Abdul Salam Versus Rimember Khasia. Appeal arising therefrom was also dismissed by the learned District Judge, North Tripura, Kailashahar in T.A No.31 of 2011 vide judgment dated 18th April, 2012 titled as Md. Surfan Ali Versus Md. Abdul Salam & others.

[7] The said suit was filed by Md. Surfan Ali against the instant plaintiff seeking a declaration of the agreement in relation to the very same trees, which had become infructuous.

[8] The instant plaintiff has placed on record only few of the documents pertaining to this suit.

[9] However, another suit was filed by Md. Surfan Ali against Rimember Khasia, numbered as Title Suit No.09 of 2013 titled as Md. Surfan Ali Versus Rimember Khasia which was decreed by the learned Civil Judge, Sr. Division, Kailashahar, North Tripura District vide judgment dated 30th November, 2013. An appeal arising therefrom, stood dismissed by the learned Single Judge of this Court in RSA No.17 of 2015 dated 23rd November, 2015 titled as Shri Rimember Khasia Versus Md. Surfan Ali.

[10] Documents in relation to this suit have not been placed on record by the instant plaintiff.

[11] The plaintiff in Title Suit No.09 of 2013 filed an application seeking execution of the judgment and decree dated 30th November, 2013, which was for a specific performance of the contract for sale of trees.

[12] Even these documents are not on record.

[13] Perhaps, as a consequence of the execution petition, the instant plaintiff filed a fresh suit against both Rimember Khasia and Md. Surfan Ali, seeking recovery of a sum of `86,675/-money agreed to be returned by the defendant No.1, Rimember Khasia and `8,00,000/- towards expenses for loss of business, pain & sufferings and mental agony.

[14] In the said suit, plaintiff filed an application under Order XXXVIII Rule 5 of CPC seeking attachment of the property of defendant No.1 along with the trees thereupon, subject matter of decree passed by the learned Civil Judge, Sr. Division, Kailashahar, North Tripura in Title Suit No.09 of 2013 titled as Md. Surfan Ali Versus Rimember Khasia, which undisputedly attained finality vide judgment dated 23rd November, 2019 passed by the learned Single Judge of this Court in RSA No.17 of 2015 titled as Shri Rimember Khasia Versus Md. Surfan Ali.

[15] The learned trial Judge has partly allowed the prayer by attaching the property of defendant No.1 namely, Rimember Khasia.

[16] In this backdrop, this Court finds no reason to fully allow the application so disposed of in terms of the impugned order passed by the learned Civil Judge (Sr. Division), Kailashahar, Unakoti Judicial District in Civil Misc (O) 18 of 2019 dated 29th June, 2019 titled as Md. Abdul Salam Versus Md. Surfan Ali.

[17] The power exercised under Order XXXVIII Rule 5 of CPC is to be so done with extreme caution and care. It is only when the Court finds the plaintiff to, prima facie, having shown that his claim is bona fide and valid and that defendant is about to remove or dispose of whole or part of his property, with an intent of obstructing or delaying the execution of any decree which may be passed against him, that such a power can be exercised. [Raman Tech. & Process Engg. Co. & another Versus Solanki Traders, (2008) 2 SCC 302 (2 Judge Bench)].

[18] In the instant case, as the order reveals the trial Judge has failed to record his satisfaction on both the counts.

[19] Having noticed that he could not attach the trees in view of judgment delivered by this Court in RSA No.17 of 2015 dated 23rd November, 2019 titled as Shri Rimember Khasia Versus Md. Surfan Ali, he ought to have exercised caution and proceeded with a little bit of care in passing the order of attachment of the land, more so in view of previous history inter se the parties. The trial Judge ought to have considered the ratio of law laid down by the Apex Court in Hamda Ammal Versus Avadiappa Pathar & 3 others, (1991) 1 SCC 715 (3 Judge Bench) wherein it stood observed that the sale deed executed prior to attachment before judgment can be registered subsequently and would prevail over the order of attachment.

[20] Advancing the plea of decree dated 30th November, 2013 in Title Suit No.09 of 2013 having obtained by exercising fraud, and that this Court should in rectifying the mistake, exercise its power under Article 227 of the Constitution of India, by passing the orders of attaching the trees, more so in the light of the provisions of General Clauses Act, reliance is placed on United India Insurance Co. Ltd. Versus Rajendra Singh and others, (AIR) 2000 SC 1165 (2 Judge Bench); S.P. Chengal Varaya Naidu (dead) by Lrs. Versus Jagannath (dead) by Lrs. and others (1994) 1 SCC 1 (2 Judge Bench).

[21] There cannot be any dispute on the proposition with regard to the scope and extent of the power to be exercised by this Court. Jurisdiction is there to prevent abuse of process of law, which this Court finds the instant plaintiff to have done so and as such, in the instant petition, filed by the plaintiff in invoking the jurisdiction of this Court under Article 227 of the Constitution of India, quashes the impugned order dated 29th June, 2019 passed by the learned Civil Judge (Sr. Division), Kailashahar, Unakoti Judicial District, in Civil Misc (O) 18 of 2019 titled as Md. Abdul Salam Versus Md. Surfan Ali, for the same to have been passed without application of mind and assigning any reasons. There is nothing to show fraudulent intent, if any of the defendant respondent in disposing of the property only to deprive the plaintiff of the decree which may be passed in his favour. Equally, application filed by the plaintiff under Order XXXVIII Rule 5 of CPC also stands dismissed. All interim orders passed by this Court as also trial Court shall stand vacated.

[22] The instant petition is disposed of with imposition of costs of `1,000/- (rupees one thousand) only to be paid by the plaintiff to the Tripura High Court, Legal Services Authority.

[23] Copy of the order be sent to the trial Court as also to the Tripura High Court, Legal Services Authority.

[24] Non-payment of costs shall tantamount to violation of the instant order.

[25] Pending application(s), if any, also stands disposed of. Record be sent back immediately.