Research › Search › Judgment

Bombay High Court · body

2019 DIGILAW 1996 (BOM)

Hasan Ali v. Sindhutai Pandurang Dabhade

2019-08-27

Z.A.HAQ

body2019
JUDGMENT Z A Haq, J. - None for the respondents, though served. Heard Ms Monika Dodani, Advocate for the petitioner. 2. Rule. Rule made returnable forthwith. 3. Respondent No.1/plaintiff-Sindhutai has filed civil suit praying for decree for declaration that the sale-deed executed by defendant Nos. 1 and 2 in favour of the defendant No.3 on 11th November 1997 is not binding on the plaintiff and it does not confer valid title on the defendant No.3. The plaintiff has also prayed for decree for specific performance of agreement to sell. The plaintiff has prayed for other reliefs. In this civil suit, the plaintiff had filed application under Order 39 Rules 1 and 2 of the Code of Civil Procedure praying for temporary injunction. This application was dismissed by the trial Court. The order passed by the trial Court was challenged by the plaintiff (present respondent No.1) before District Court in appeal under Order 43 Rule 1(r) of the Code of Civil Procedure. In this appeal, the plaintiff had filed an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure praying for temporary injunction. On 17th January 2004, the learned District Judge had passed the following order: "Heard Shri. Khajanchi, Ad and Shri Kale Ad. Parties to maintain status-quo till 20-1-04 as question of possession is involved in this case." 4. According to the plaintiff, the defendant No.3 i.e. present petitioner committed breach of the order passed by the learned District Judge on 17th January 2004 and continued construction on the suit site and therefore the plaintiff had filed application under Order 39 Rule 11 read with Section 151 of the Code of Civil Procedure, praying that the defence of the defendant No.3 in appeal be struck off and the right of the defendant No.3 to contest the appeal be forfeited. On this application, the learned District Judge has passed the impugned order. The learned District Judge held that the defendant No.3 (present petitioner) made alterations in the suit property and undertook construction in spite of the order passed by the District Court directing the parties to maintain status-quo. However, considering the fact that the matter was pending for about 13 years, the learned District Judge directed defendant No.3 to pay Rs.1,00,000/- to the plaintiff towards compensation for committing breach of the order dated 17th January 2004. 5. However, considering the fact that the matter was pending for about 13 years, the learned District Judge directed defendant No.3 to pay Rs.1,00,000/- to the plaintiff towards compensation for committing breach of the order dated 17th January 2004. 5. The learned Advocate for the petitioner made various submissions to point out that the petitioner (defendant No.3) has factually not committed any breach of the order dated 17th January 2004. It is argued that the provisions of Order 39 Rule 11 of the Code of Civil Procedure does not confer jurisdiction on the Courts to direct the party, found to be guilty of committing breach, to pay compensation. It is further submitted that ultimately, the appeal filed by the respondent No.1 (plaintiff) under Order 43 Rule 1(r) of the Code of Civil Procedure is dismissed and therefore, alleged breach would be of technical nature only. 6. I find substance in the legal submissions made by the learned Advocate for the petitioner. Order 39 Rule 11 of the Code of Civil Procedure enables the Court to dismiss the suit or proceedings if the default or contravention or breach is committed by the plaintiff or the applicant, or to strike out the defence if the default or contravention or breach is committed by the defendant or opponent. There is nothing in the provisions of Rule 11 of Order 39 of the Code of Civil Procedure on the basis of which it can be said that the Court has power to direct the defaulting party to pay compensation. The directions given by the learned District Judge to the petitioner to pay compensation are penal in nature and such directions cannot be issued by the Court unless specific power is conferred on the Court. Other submission made by the learned Advocate for the petitioner that as the appeal filed by the respondent No.1/plaintiff is dismissed on merits, the breach, if any, would be of technical nature is also required to be accepted. 7. Considering the facts of the case, it is clear that the learned District Judge has transgressed his jurisdiction by directing the petitioner/ defendant No.3 to pay Rs.1,00,000/- to the respondent No.1/plaintiff towards compensation. 8. Hence, the following order: i) The impugned order is set aside. ii) The application(Exh.40) filed by the respondent No.1/plaintiff is dismissed. Rule is made absolute accordingly. In the circumstances, the parties to bear their own costs.