Research › Search › Judgment

Rajasthan High Court · body

2017 DIGILAW 2782 (RAJ)

Mitha Lal v. Sundar Bai @ Sundari

2017-12-13

ARUN BHANSALI

body2017
ORDER : ARUN BHANSALI, J. 1. This revision petition has been filed by the petitioner aggrieved against the order dated 27/8/2016 passed by the trial court, whereby, the application filed by the petitioner under Order 7, Rule 11 CPC has been rejected. 2. Respondent No. 1 filed a suit for cancellation of sale deed as well as permanent injunction against the petitioner and respondents No. 2 to 5. Along with the suit, an application under Order 39, Rule 1 & 2 CPC was filed; the application was rejected by the trial court vide its order dated 15/11/2008. The respondent filed S.B. Civil Misc. Appeal No. 1705/2008 against the order dated 15/11/2008. In the said appeal an ad interim order dated 19/12/2008 directing the parties to maintain status quo regarding the suit property was passed and it was also directed that the plaintiffs shall not alienate the suit property. The order passed on 19/12/2008 was confirmed by order dated 18/5/2011. Ultimately, this Court decided the appeal by its order dated 26/5/2014, whereby, the appeal was disposed of directing the parties to maintain status quo regarding the suit property till the disposal of the suit. 3. Where-after, the respondent No. 1 filed an application under Order 39, Rule 2A CPC against the petitioner and respondents No. 2 to 5 alleging disobedience of the order dated 19/12/2008 passed by this Court, whereby, the respondent No. 2 Babulal executed sale deed dated 24/6/2013 in favour of the petitioner and respondents no. 3 to 5. A reply to the application under Order 39, Rule 2A CPC was filed, where-after, the application under Order 7, Rule 11 CPC was filed by the petitioner and respondents No. 2 to 5 on the ground that the application under Order 39, Rule 2A CPC was not maintainable. 4. 3 to 5. A reply to the application under Order 39, Rule 2A CPC was filed, where-after, the application under Order 7, Rule 11 CPC was filed by the petitioner and respondents No. 2 to 5 on the ground that the application under Order 39, Rule 2A CPC was not maintainable. 4. The trial court after hearing the parties, by the impugned order came to the conclusion that the High Court by its order modified the order dated 15/11/2008 passed by the trial court and for the alleged violation of the said order the present application has been filed and, therefore, the order of the High Court has merged in the order of trial court and order of the trial court would be the order as passed by the High Court and, therefore, it cannot be accepted that the application is not maintainable and consequently dismissed the application under Order 7, Rule 11 CPC. 5. It is submitted by learned counsel for the petitioner that the trial court committed error in rejecting the application inasmuch as the provision of Order 39, Rule 2A CPC specifically provides that the court granting the injunction or making the order, or any Court to which the suit or proceeding is transferred, may pass orders under the said provision and as admittedly the injunction was granted by the High Court, the application under Order 39, Rule 2A CPC could not be maintained before the trial court and, therefore, the said application was liable to be rejected. 6. Reliance was placed on the judgment in case of Chev. K.M.Joseph v. St.Mary's Jacobite Syrian Orthodox Church & Ors. : AIR 2004 Karnataka 474. 7. Learned counsel appearing for the respondents supported the order passed by the trial court. It was submitted that once the order passed by the trial court was modified by the High Court and the appeal was decided by order dated 26/5/2014 and application under Order 39, Rule 2A CPC was filed on 30/5/2014, it cannot be said that the application was not maintainable inasmuch as the order of the High Court would substitute the order as passed by the trial court and once the said order was in currency, the application was very well maintainable before the trial court and, therefore, the revision petition filed by the petitioner deserves to be dismissed. 8. 8. Reliance was placed on Bajrang Lal Sharma & ors v. Saluddin Ahmed & Anr. : 2012 (4) WLC (Raj.) 728. 9. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 10. It is not in dispute that the trial court had rejected the application filed under Order 39, Rule 1 and 2 CPC, where-after, on filing of the appeal, this Court by order dated 19/12/2008 ordered for maintaining status quo and appeal came to be decided by order dated 26/5/2014, whereby, the status quo order granted during the pendency of the appeal was confirmed and parties were directed to maintain status quo till the disposal of the main suit. 11. The allegations made in the application under Order 39, Rule 2A CPC pertained to execution of sale deed on 24/6/2013 being in violation of the injunction granted. It would be seen that on 24/6/2013 when the violation is alleged to have been committed by the petitioner and respondents No. 2 to 5, the appeal was still pending before this Court and violation, if any, was of the order dated 19/12/2008 passed in appeal. 12. The provision of Order 39, Rule 2A CPC inter alia reads as under: "2A. Consequence of disobedience or breach of injunction-(1) In the case of disobedience or any injunction granted or other order made under rule 1 or rule 2 or breach of any of the terms on which the injunction was granted or the order made, the Court granting the injunction or making the order, or any Court to which the suit or proceeding is transferred, may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the Court directs his release." (emphasis supplied) 13. A bare look at the said provision reveals that the Court granting injunction or making order or any court to which the suit or proceeding is transferred may pass orders under the above provision. 14. A bare look at the said provision reveals that the Court granting injunction or making order or any court to which the suit or proceeding is transferred may pass orders under the above provision. 14. As noticed hereinbefore, the date on which the violation is alleged i.e. 24/6/2013, the injunction was that of this Court and, therefore, the violation, if any, by execution of sale deed was of the directions of this Court and only this Court could pass orders under Order 39, Rule 2A CPC as per the specific stipulation contained in the provision. 15. So far as the theory of merger and/or the modification of order passed by the trial court by the appellate court is concerned, the things would have been different in case the allegation was of violation of injunction passed by the High Court, modifying the order passed by the trial court, after the appeal was decided on 26/5/2014. In that case, the application could very well be maintained before the trial court as the order of trial court dated 15/11/2008 rejecting the application under order XXXIX Rule 1 & 2 CPC would get substituted by the order passed by the High Court and the application under the provision of Order 39, Rule 2A CPC could have been maintained before the trial court and the submission that the application under Order 39, Rule 2A CPC, even if violation of the injunction takes place after 26/5/2014 could only lie before the High Court has no warrant in law and as such the said submission cannot be accepted. However, merely because in the present case the application alleging violation of the order has been filed on 30/5/2014 i.e. after the appeal was decided by the High Court, the said fact by itself cannot make the application maintainable before the trial court as the application pertains to violation at a point of time when the appeal was still pending and violation, if any, was of the injunction granted by the High Court. 16. So far as the judgment in the case of Bajrang Lal (supra) relied on by the learned counsel for the respondent No. 1 is concerned, the said case does not advance the cause of the petitioner as therein the allegations made pertained to the order passed by the High Court, which was affirmed by the Hon'ble Supreme Court. 17. 16. So far as the judgment in the case of Bajrang Lal (supra) relied on by the learned counsel for the respondent No. 1 is concerned, the said case does not advance the cause of the petitioner as therein the allegations made pertained to the order passed by the High Court, which was affirmed by the Hon'ble Supreme Court. 17. In view of the above discussion, the revision petition is allowed, the order dated 27/8/2016 passed by the trial court is set aside, the application filed by the petitioner under Order 7, Rule 11 CPC is allowed, the application filed by the respondent No. 1 under Order 39, Rule 2A CPC is rejected as not maintainable. 18. No order as to costs.