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2006 DIGILAW 982 (MP)

Kasturba Devi v. Dilip Kumar

2006-08-17

ABHAY M.NAIK

body2006
Judgment ( 1. ) RESPONDENT No. 1 alter obtaining permission for construction from the Municipal Corporation, Khandwa started the construction. The plaintiff/petitioner instituted a suit for declaration and perpetual injunction on the ground that the construction was being made in violation of the Municipal Sanction. The suit was registered as Civil Suit No. 39-A/2000. An order of status-quo was passed therein on 21-8-2000 and 28-8-2000 in respect of construction on the properly in dispute. The respondent Nos. 1 and 2 continued with the construction and completed the same. The plaintiff/petitioner submitted an application under Order 39 Rule 2a of the CPC and prayed for action against them for such breach/disobedience. This application was registered as MJC No. 5/2000. In the civil suit, an application under Order 7 Rule 11 of the CPC was filed which was allowed on 2-12-2000 rejecting thereby the plaint submitted by the plaintiff/petitioner. Aggrieved by the same, Civil Appeal No. 46-A/2000 was preferred which was allowed by the Court of Second ADJ, East Nimad, Khandwa on 11th of January, 2001. Consequently the Civil Suit No. 39-A/2000 was restored and the learned Trial Judge was directed to decide the same on merits. ( 2. ) IN the meantime MJC No. 5/2000 was also dismissed by the Trial Court on account of rejection of the plaint vide order dated 2-12-2000. On restoration of Civil Suit No. 39-A/2000, plaintiff/petitioner submitted an application under Section 151 of the CPC for restoration of the MJC No. 5/2000. This application was dismissed on 19-10-04 by the learned Trial Judge on the ground of limitation. Civil Misc. Appeal No. 10/04 preferred against the order dated 19-10-04 has been dismissed by the Lower Appellate Court on the ground of untenability of the appeal which has been impugned in the present writ petition. ( 3. ) SHRI v. Rusia, learned Counsel for the petitioner contended that the application with respect to breach of order of status quo (MJC No. 5/2000) could not have been legally dismissed merely on the ground of dismissal of civil suit. He contended that the order of learned Trial Judge dismissing the MJC No. 5/2000 is patently erroneous and illegal. He further contended that even if the Civil Misc. He contended that the order of learned Trial Judge dismissing the MJC No. 5/2000 is patently erroneous and illegal. He further contended that even if the Civil Misc. Appeal was not maintainable before the Lower Appellate Court, the order dated 19-10-04 being patently illegal, is liable to be set aside in exercise of power conferred under Article 227 of the Constitution of India and the same is liable to be restored to its original number. ( 4. ) IT is contended on behalf of the respondent Nos. 1 and 2 that the application for restoration of MJC No. 5/2000 was submitted under Section 151 of the CPC and no appeal was provided against the order passed on such application. It is therefore, contended that the appeal has rightly been dismissed and no interference is warranted in the present writ petition. ( 5. ) AFTER considering the submissions of the learned Counsel for the parties, I am of the opinion that this petition deserves to be allowed for the following reasons: (i) It has not been disputed before this Court that the order of status-quo was passed in the civil suit and application alleging breach of such order was submitted by the plaintiff/petitioner which was registered as MJC No. 5/00. (ii) The proceeding for punishment of the person who has committed the breach is basically between the Court and such persons. Such proceedings are intended not for the benefit of the parties but for the vindication of the jurisdiction of the Court and for giving effect to orders passed by the Court. The Court granting the injunction has jurisdiction to hear the application for disobedience of the orders of status quo and the matter must be dealt with sternly as the proceedings of disobedience are quasi Criminal. In this view, the Court dealing with the application for breach of the order of status quo is required to look into the matter that whether the order of status quo was effective during the period when the person is stated to have committed the breach with full knowledge. Thus, the dismissal of the civil suit wherein the order of status quo has been made does not bring an end of the proceedings for breach of order of status quo. The person facing the order of status quo has an option to apply for its vacation. Thus, the dismissal of the civil suit wherein the order of status quo has been made does not bring an end of the proceedings for breach of order of status quo. The person facing the order of status quo has an option to apply for its vacation. In this view of the matter the proceedings with regard to breach of an order of status quo were not liable to be dropped merely on the ground of dismissal of original civil suit. The Honble Supreme Court of India in the case of Tayabhai M. Bagasarwalla and Anr. v. Hind Rubber Industries Pvt. Ltd. etc. AIR1997 SC 1240 , 1997 (2 )ALT1 (SC ), JT1997 (2 )SC 699 , 1997 (2 )SCALE205 , (1997 )3 SCC443 , [1997 ]2 SCR152 , has held: The orders made were within the jurisdiction of the Court and once this is so, they have to be obeyed and implemented. It is not as if the defendants are being sought to be punished for violations committed after the decision of the High Court on the question of the jurisdiction of the Civil Court. Here the defendants are sought to be punished for the disobedience and violation of the order of injunction committed before the decision of the High Court in Vishanji Virji Mepani AIR 1996 Bombay 367. According to Section 9a, the Civil Court and the High Court did have the power to pass interim orders until that decision. If they had that power they must also have the power to enforce them. In the light of the said provision, it cannot also be held that those orders could be enforced only till the said decision but not thereafter. The said decision does not render them (the interim orders passed meanwhile) either non-est or without jurisdiction. Punishing the defendants for violation of the said orders committed before the said decision (Vishanji Virji Mepani) does not amount, in any event, to enforcing them after the said decision. Only the orders are being passed now. The violations arc those committed before the said decision. Punishing the defendants for violation of the said orders committed before the said decision (Vishanji Virji Mepani) does not amount, in any event, to enforcing them after the said decision. Only the orders are being passed now. The violations arc those committed before the said decision. The correct principle, therefore, is the one recognized and reiterated in Section 9a to wit, where an objection to jurisdiction of a Civil Court is raised to entertain a suit and to pass any interim orders therein, the Court should decide the question of jurisdiction in the first instance but that does not mean that pending the decision on the question of jurisdiction, the Court has no jurisdiction to pass interim orders as may be called for in the facts and circumstances of the case. A mere objection to jurisdiction does not instantly disable the Court from passing any interim orders. It can yet pass appropriates orders. At the same time, it should also decide the question of jurisdiction at the earliest possible time. The interim orders so passed are orders within jurisdiction when passed and effective till the Court decides that it has no jurisdiction to entertain the suit. These interim orders undoubtedly come to an end within the decision that this Court had no jurisdiction. It is open to the Court to modify these orders while holding that it has no jurisdiction to try the suit. Indeed, in certain situations, it would be its duty to modify such orders or make appropriates directions. For example, take a case, where a party has been dispossessed from the suit property by appointing a receiver or otherwise; in such a case, the Court should, while holding that it has no jurisdiction to entertain the suit, must put back the party in the position he was on the date of suit. But this power or obligation has nothing to do with the proposition that while in force, these orders have to be obeyed and their violation can be punished even after the question of jurisdiction is decided against the plaintiff provided the violation is committed before the decision of the Court on the question of jurisdiction. ( 6. But this power or obligation has nothing to do with the proposition that while in force, these orders have to be obeyed and their violation can be punished even after the question of jurisdiction is decided against the plaintiff provided the violation is committed before the decision of the Court on the question of jurisdiction. ( 6. ) THUS, the learned Trial Judge has obviously acted with patent illegality in dismissing the application for breach of order of status quo merely on the ground of dismissal of the civil suit wherein the order of status quo was made. It has been contended on behalf of respondent Nos. 1 and 2 that the application under Section 151 of the CPC for restoration of proceedings of breach of status quo was dismissed and an appeal could have been preferred against such an order of dismissal. Accordingly, learned Counsel for respondents submitted that the impugned order does not call for any kind of interference. He relied upon the Honble Supreme Courts decision rendered in the case of Nain Singh v. Koonwarjee and Ors. (1979) 1 SCC732. ( 7. ) IT is true that the application for restoration of MJC No. 5/2000 was submitted under Section 151 of the CPC and no appeal is provided against the order of dismissal of application under Section 151 of the CPC. However, the powers under Article 227 of the Constitution of India are wide enough for entertaining the writ petition and pass a suitable order in the facts and circumstances of the case of present nature. The scope of Article 227 of the Constitution of India has been subject matter even before the Honble Supreme Court of India on various occasions. It is almost a trite law as held by the Apex Court that power of superintendence conferred by Article 227 of the Constitution of India is to be exercised most sparingly and only on appropriate cases in order to keep the sub-ordinate Courts within the bounds of their authority and not for correcting mere errors. Moreover, it is to be necessarily exercised when the impugned order, if allowed to stand, will occasion into miscarriage of justice. Moreover, it is to be necessarily exercised when the impugned order, if allowed to stand, will occasion into miscarriage of justice. The proceedings for breach of order of status quo, if allowed to be dropped in the impugned manner, the person, alleged to have committed breach, will get absolved without adjudication with respect to alleged breach and the petitioner will not be able to seek complete and substantial justice. The Division Bench of this Court in the case of Madan Lal Soni v. State of M. P. 2002 (5) MPLJ 430, has held that the High Court in exercise of jurisdiction under Article 227 of the Constitution of India can take cognizance of the entire facts and circumstances and pass appropriate orders to give the parties complete and substantial justice. ( 8. ) ALTHOUGH the remedy of the appeal was wrongly availed, this Court is not powerless under Article 227 of the Constitution of India and the order of the dismissal of the proceedings for breach being patently illegal may be set aside. The Division Bench of this Court in the case of Jawaharial Nehru Krishi Vishwavidyalaya and Ors. v. Satyeer Sharma, 1996 JLJ 29 , has held that the power of superintendence under Article 227 of the Constitution of India does empower the High Court to set aside the order of Civil Court which was patently erroneous. Although the order of Civil Court was found to be appealable yet the same was set aside under Article 227 of the Constitution of India despite absence of an appeal. ( 9. ) SINCE in the present case the order dated 19-10-04 was patently illegal the same is hereby set aside. The petition is accordingly allowed and the learned Trial Judge is directed to restore the MJC No. 5/2000 for being adjudicated upon on merits in accordance with law. No order as to costs.