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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CIVIL REVISION APPLICATION NO.73/2013
APPLICANT : Indarsingh s/o Hiralal Parihar
(On R.A.) aged 46 years, Occ. Service,
R/o 155, Sindhi Colony, Opp. Govt.
Godown, Pulgaon, Tah. Deoli, Dist. Wardha.
...V E R S U S...
RESPONDENTS :- Jawahar Education Society,
(On R.A.) Registration No.F-78, through its
Secretary and others.
1. Ajitkumar Rameshkumar Patni
Pulgaon Gas Service Camp Road,
Pulgaon, Tah. Deoli, Dist. Wardha.
2. Nareshkumar Bansilal Patni,
Patni Automobiles, Kamptee Road,
Nagpur.
3. Ashokkumar Maniklal Chandak,
Rathi Marg, Pulgaon, Dist. Wardha.
4. Purnima Ajitkumar Patni,
R.K. Colony, Nachangaon Road,
Pulgaon, Dist. Wardha.
5. Rameshkumar Suwalal Patni,
Camp Road, Pulgaon, Dist. Wardha.
6. Nirmalkumar Pannalal Patni,
Patni Ginning & Pressing Factory,
Juna Pulgaon Road, Dist. Wardha.
CRA abated against R.no.6 vide Registrar's
order dt. 26/11/13.
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7. Umeshkumar Bansilal Patni,
Patni Automobiles, Kamptee Road, Nagpur.
8. Rajendra Rameshkumar Patni,
Camp Road, Pulgaon, Dist. Wardha.
9. Harivallabh Bhojraj Taori,
Shree Talkies Road, Pulgaon, Dist. Wardha.
10. Shrikant Durgadas Gandhi,
Jail Road, Civil Lines, Wardha.
11. Deoraoji Shamraoji Kasatwar
Near Murmura Factory, Laxminagar, Wardha.
12. Aditya Ajitkumar Patni,
R.K. Colony, Nachangaon Road, Pulgaon,
Dist. Wardha.
13. Anju Ashok Jain,
"Akshay" Bhatapara Road,
Baroda Bazar, Dist. Raipur (C.G.)
14. Smt. Neena w/o Atul Pahadiya,
C/o Pahadiya Niwas, 77, Anup
Nagar, Indore (M.P.)
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Shri D.C.R. Mishra, Advocate for applicant
Shri C.B. Dharmadhikari, Advocate for respondents
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CORAM : ARUN D. UPADHYE, J.
Date of reserving the judgment : 19/12/2017
Date of pronouncing the judgment : 21/12/2017
J U D G M E N T
1. Rule. Rule made returnable forthwith. The civil revision application is heard finally with the consent of the learned Counsel for the parties.
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2. By this civil revision application, the applicant has prayed to quash and set aside the impugned judgment dated 19/3/2013 passed by the learned Civil Judge Senior Division, Wardha in M.J.C. No.118/2011 and allow the prayers made in M.J.C. No.118/2011 or in the alternative, remand the matter for deciding the same afresh on the basis of material available and hearing the parties.
3. The brief facts of the case are as under : -
The applicant has filed Special Civil Suit No.175/2009 along with application for grant of temporary injunction. During the pendency of the said civil suit, the respondent no.1 - Jawahar Education Society has filed application vide Exh.23 under Section 9-A of the Code of Civil Procedure for deciding the issue of jurisdiction, however, the said application was adjourned from time to time. On 20/4/2010, the applicant has filed application vide Exh.43 for grant of status quo order and after hearing the parties, the Civil Judge Senior Division, Wardha has granted the status quo order till 7/6/2010 vide order dated 23/4/2010. The status quo order was extended till 3/7/2010. The applicant has also filed application on 3/7/2010 for continuation of the status quo order. It is further contended that the status quo order was continued till decision of the application filed by the defendants, challenging the jurisdiction of the civil Court. It is further contended that on 7/9/2010, the Court was ::: Uploaded on - 21/12/2017 ::: Downloaded on - 23/12/2017 02:33:30 ::: cra73.13.odt 4 pleased to reject the application (Exh.23) filed by the defendants.
4. It is the case of the applicant that on 7/9/2010, an application (Exh.54) was filed for continuation of the status quo order till hearing of application (Exh.5) and the said application was allowed. It is further contended that the President of the respondent - Society called urgent meeting by circulating notice dated 7/9/2010 to be held on 8/9/2010 at 11:00 a.m. and passed the Resolution, whereby the services of the applicant are terminated.
5. The applicant has thus filed application Exh.58 under Order XXXIX Rule 2-A read with Rule 11 (Maharashtra Amendment) and Section 151 of the Code of Civil Procedure for taking action against the defendants. The said application (Exh.58) was allowed by the order dated 2/3/2011. Feeling aggrieved by the said order, the defendant - Society preferred an appeal against order before this Court and the said appeal against order was registered as Appeal Against Order No.41/2011. This Court was pleased to remand the matter with specific direction by its order dated 12/9/2011 by allowing the appeal against order.
6. It is further contended that as per directions of this Court, the Civil Judge Senior Division, Wardha was pleased to frame the issues in the matter and after recording the evidence in the matter and after hearing both the sides was pleased to dismiss M.J.C. No.118/2011 by its ::: Uploaded on - 21/12/2017 ::: Downloaded on - 23/12/2017 02:33:30 ::: cra73.13.odt 5 judgment dated 19/3/2013. The said judgment and order is assailed by the applicant by way of this civil revision application amongst other grounds mentioned in the revision memo.
7. I have heard both the sides at length. Learned Counsel for the applicant has vehemently submitted that after remand of the matter, the learned trial Court has recorded the evidence and passed the impugned order, which is perverse one. He further submitted that the status quo order was in existence which was passed on 7/9/2010 and was till hearing of application (Exh.5). However, the respondent no.1 called the meeting and passed the Resolution on 8/9/2010 and the services of the applicant were terminated. He further submitted that on 7/9/2010 application (Exh.23) filed by the respondent no.1 taking objection to the tenability of the suit filed under Section 9-A of the Code of Civil Procedure was dismissed. The respondents were aware about passing of the order on 7/9/2010 and therefore, they have disobeyed the status quo order. He further submitted that initially application (Exh.58) was allowed on 1/10/2010. The said order was assailed by the respondents by filing Appeal Against Order No.41/2011 and the same was allowed and matter was remanded. He further submitted that the trial Court has not considered the directions given by this Court in the judgment in appeal against order and therefore, the matter may be remanded back for fresh ::: Uploaded on - 21/12/2017 ::: Downloaded on - 23/12/2017 02:33:30 ::: cra73.13.odt 6 disposal, according to law. He further submitted that though it is a contempt of Court's order, but it is not a criminal contempt, however, it is not bona fide conduct of the respondents, and therefore, the status quo order be restored. The objection raised by the respondents that there is remedy to apply to the College Tribunal against termination order shows that they have abused the process of law. Lastly, it is submitted that the civil revision application be allowed.
8. The learned Counsel for the respondents has vehemently submitted that already the matter was remanded back by this Court after setting aside the order passed below Exh.58 with specific direction. The learned Judge of the trial Court has framed the issues and after recording the evidence in the matter has rejected the application filed by the applicant under Order XXXIX Rule 2-A read with Section 151 of the Code of Civil Procedure. He further submitted that the applicant has admitted in the cross-examination that he has not brought to the notice about the status quo order while passing the termination order. It is a contempt proceeding. The benefit must go to the respondents. The status quo order was extended behind the back of the respondents without obtaining say after dismissal of application (Exh.23) and therefore, they were not aware about the same. The respondents have not disobeyed the status quo order. The evidence of respondent no.1 is fully corroborated by the witnesses ::: Uploaded on - 21/12/2017 ::: Downloaded on - 23/12/2017 02:33:30 ::: cra73.13.odt 7 examined by the respondents. The trial Court has rightly rejected the application filed under Order XXXIX Rule 2-A of the Code of Civil Procedure and therefore, the civil revision application be dismissed.
9. Considering the submissions of the respective sides and having gone through the impugned judgment and order dated 19/3/2013 passed by the learned Civil Judge Senior Division, Wardha in M.J.C. No.118/2011, I am of the view that no interference of this Court is called for in the said order. I have carefully perused the application filed Under Order XXXIX Rule 2-A read with Section 151 of the Code of Civil Procedure, reply filed by the respondents and the evidence on record. Admittedly, the applicant/plaintiff has filed special civil suit for injunction and also obtained status quo order till decision on application (Exh.23) filed by the respondents. The application (Exh.23) is filed by the respondents under Section 9-A of the Code of Civil Procedure challenging the jurisdiction of the civil Court. It is also not disputed that the said application was rejected on 7/9/2010. It appears that the status quo order granted from time to time was in existence up to 3/7/2010. The applicant - Indarsingh in his evidence has mentioned that on 7/9/2010 he has filed application for extension of status quo order, vide Exh.20 and on that day the President of the Society as well as their Advocate were present in the Court. He also deposed that the status quo order was in ::: Uploaded on - 21/12/2017 ::: Downloaded on - 23/12/2017 02:33:30 ::: cra73.13.odt 8 existence from 19/8/2010 to 7/9/2010 and on the same day, application (Ex.23) filed by the respondent no.1 was rejected. In the cross- examination, he stated that there is no endorsement on Exh.20 that copy of the application was received by the respondents as well as no say is obtained on the said application from them. He also admitted that he does not know whether the order passed on Exh.20 was communicated to the respondents or their Advocate. In the cross-examination, he has specifically admitted that on 8/9/2010 when his termination order was passed by the Resolution, he has not informed that the status quo order was in existence.
10. The respondent no.1 has examined one Ajitkumar Patni - President in support of their contentions. In the evidence, he has deposed that there is no prohibitory order passed against him as well as other respondents. The respondent nos.6, 13 and 14 were also not present in the meeting on 8/9/2010. He further deposed that the prohibitory order is to be passed against the person and therefore, execution is to be done against that person only. He has also stated that the respondent nos.1 to 14 are not made parties in the suit and therefore, they are not liable for action under Order XXXIX Rule 2-A of the Code of Civil Procedure. He also stated that the respondents have not disobeyed the order. He was cross-examined at length. In the cross-examination, he stated that the ::: Uploaded on - 21/12/2017 ::: Downloaded on - 23/12/2017 02:33:30 ::: cra73.13.odt 9 status quo order was in existence up to 7/9/2010. He also admitted that on 8/9/2010 there was a meeting of the Society, the Resolution was passed, the services of the applicant were terminated and the Resolution was sent to the Nagpur University for approval. He also stated in the cross-examination that on 1/10/2010 he came to know about the status quo order passed on 7/9/2010.
11. The respondents have also examined one Dr. Varanasi Vijay Sarathi, who also deposed that the respondents were not aware about passing of the order of continuation of status quo order on the day of Resolution dated 8/9/2010 and therefore, no contempt is committed. He was cross-examined at length. In the cross-examination, he stated that he joined his duty on 1/10/2010 and he was not knowing personally about the Resolution passed by the Society.
12. The learned Counsel for the applicant has relied upon the judgment of the Hon'ble Supreme Court, reported in AIR 2004 Supreme Court 4277 (1) (Prithawi Nath Ram...Versus...State of Jharkhand and others). In the said ruling, the Hon'ble Supreme Court has held that non-compliance of order of Court would render party liable for contempt of Court. He further relied upon the decision of the Bombay High Court, reported in AIR 1992 Bombay 51 (Mahadeo Dhondu Budhe...Versus...Sayyad Mahamud Sayyad Mohamad Nazir). In the ::: Uploaded on - 21/12/2017 ::: Downloaded on - 23/12/2017 02:33:30 ::: cra73.13.odt 10 said ruling, it is held that in case of sale of attached property, the stage of sale can come only after one year of order of attachment. If the attachment continues for one year and even thereafter if it is found that the party is disobeying or committing breach or continuing any breach of the order, then the attached property can be sold. Lastly, he relied upon the decision of the Allahabad High Court, reported in AIR 1973 ALLAHABAD 449 (Sitaram...Versus...Ganesh Da). In the said ruling, it is held that the effect of the rule is not punitive but seeks to enforce injunction order.
13. In the facts and circumstances of the case, the decisions relied upon by the learned Counsel for the applicant are not made applicable to the case in hand.
14. Considering the evidence as well as material placed on record by the parties, it appears that after passing order below Exh.23, the matter was adjourned for hearing on Exh.5. Thereafter, an application (Exh.20) is moved by the applicant for extension of the status quo order. The said application is filed on record. On perusal of the same, it appears that no say was obtained from the other side as well as copy was not served. However, the order was passed to the effect that the order dated 19/8/2010 passed vide Exh.52 shall continue to remain in force till hearing of application (Exh.5). If that is so, there is no breach of order as ::: Uploaded on - 21/12/2017 ::: Downloaded on - 23/12/2017 02:33:30 ::: cra73.13.odt 11 alleged by the applicant. The learned Judge has considered the evidence and material placed on record and rightly observed that there is no breach of order at the hands of the respondents, as alleged by the applicant. The submission put forth on behalf of the applicant that the learned Judge has not considered the evidence on record in proper perspective and has given perverse finding, cannot be accepted. The submission put forth on behalf of the applicant that the matter be remanded back for hearing afresh also cannot be accepted. There is no merit in the civil revision application and the same is liable to be dismissed and accordingly, the same is dismissed. Rule stands discharged. No order as to costs.
JUDGE Wadkar ::: Uploaded on - 21/12/2017 ::: Downloaded on - 23/12/2017 02:33:30 :::