HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Miscellaneous Application No. 172/2022
In
S.B. Civil Revision Petition No.133/2017
Santosh Kumar Son Of Late Shri Kashi Nath Sharma, Resident Of Barwara
House Servant Quarters, Civil Lines, Ajmer Road Jaipur, Rajasthan.
----Petitioner
Versus
Smt. Shakuntala Singh Wife Of Shri Harender Singh, R/o 6/8 Barwara House
Colony, Civil Lines, Ajmer Road, Jaipur, Rajasthan.
----Respondent
Connected With S.B. Civil Revision Petition No. 56/2017 Santosh Kumar Sharma, S/o Late Shri Kashi Nath Sharma, R/o 21-D, Behind Servant Quarters, Barwara House, Civil Lines, Ajmer Road, Jaipur
----Petitioner Versus Bhagwati Singh S/o Shri Rao Bahadur Raja Man Singh, R/o Barwara, Distt. Sawai Madhopur Rajasthan
----Respondent Smt. Hema Sharma W/o Shri Sudhanshu Sharma D/o Santosh Kumar Sharma, resident of behind D-21, Servant Quarters, Barwada House, Civil Lines, Jaipur
----Proforma Respondent For Petitioner(s) : Mr. R K Mathur, Sr. Advocate assisted by Mr. Ram Prasad Sharma For Respondent(s) :
HON'BLE MR. JUSTICE SUDESH BANSAL Order 03/01/2023
1. Heard learned senior counsel for petitioner and perused the record.
2. S.B. Civil Revision Petition No.133/2017 was dismissed by this Court vide Order dated 15.09.2022, taking note of the fact that original contempt petition pending before the trial court was abated. An application No.172/2022 has been filed stating inter alia that as a matter of fact the original contempt petition was abated in respect of S.B. Civil Revision Petition No.56/2017 and therefore, by recalling order dated 15.09.2022, revision Petition (Downloaded on 06/01/2023 at 10:16:08 PM) (2 of 5) [CMAP-172/2022] No.56/2017 titled Santosh Kumar Sharma Vs. Bhagwati Singh be dismissed as withdrawn and the S.B. Civil Revision Petition No.133/2017 be decided on merits.
3. Taking into consideration the contentions made hereinabove, with the consent of counsel for petitioner & without recalling the order dated 15.09.2022, the revision petition No.133/2017 has been heard on merits.
4. It appears that respondent Smt. Shakuntala Singh had instituted a civil suit for permanent injunction against the petitioner Santosh Kumar Sharma along with application for temporary injunction. In the application for temporary injunction, filed under Order 39 Rule 1 & 2 CPC, interim stay orders dated 15.04.2005/19.05.2005 were passed to maintain status quo. Thereafter, respondent-plaintiff filed one application under Order 39 Rule 2A CPC on 04.05.2005 alleging inter alia that interim stay orders dated 15.04.2005 and 19.05.2005 have been flouted and therefore, the anti status quo position as delineated in the report of Court Commissioner dated 15.04.2005 be restored as well as petitioner be suitably punished for disobedience of the interim stay order. The application under Order 39 Rule 2A CPC is pending and yet to be decided finally on merits.
5. It appears that during pendency of application under Order 39 Rule 2A CPC, application for temporary injunction was decided vide order dated 22.01.2007, thereafter, the original suit No.193/2009 itself was decreed vide judgment dated 03.08.2010. It has been informed that petitioner has challenged the judgment and decree dated 03.08.2010 by way of filing civil regular first appeal No.377/2010 before the High Court which is yet pending. (Downloaded on 06/01/2023 at 10:16:08 PM)
(3 of 5) [CMAP-172/2022]
6. Since the application filed by respondent under Order 39 Rule 2A CPC for disobedience of the interim stay order dated 15.04.2005 remained pending, though the original suit was finally decided by judgment dated 3.8.2010, therefore, petitioner moved application to dispose of the contempt petition filed under Order 39 Rule 2A CPC as having become infructuous, in view of deciding the suit finally. It was urged by the petitioner that the interim stay order dated 15.4.2005 for which disobedience was alleged, has merged in the final decree dated 3.8.2010, hence the contempt petition be disposed of. Reliance was placed on the judgment of Hon'ble Supreme Court in case of Kanwar Singh Saini Vs. Delhi High Court [(2011) 4 CCC 294 (SC)]. Learned trial court dismissed this application vide order dated 01.04.2017 where against petitioner filed the revision petition No.133/2017.
7. This Court finds that the contempt petition filed under Order 39 Rule 2A CPC alleging disobedience of the interim stay orders dated 15.4.2005/19.05.2005 is required to be decided on merits and the trial court has not committed any illegality or jurisdictional error in not disposing of the contempt petition as having become infructuous merely on account of deciding the suit finally. It is not in dispute that the civil suit for permanent injunction has been decreed in favour of respondent vide judgment dated 3.8.2010 and in the contempt petition respondent has alleged disobedience of the interim stay order of status quo as much as has prayed to restore the position of suit property as existed in the report of the Court Commissioner dated 15.4.2005, at the time of passing the interim stay order dated 15.4.2005. Even if the argument of learned Senior Counsel for petitioner is accepted that interim stay order dated 15.4.2005 stands merged in the final judgment, this (Downloaded on 06/01/2023 at 10:16:08 PM) (4 of 5) [CMAP-172/2022] Court finds that the civil suit for permanent injunction of respondent has been decreed in favour of respondent. It is not that case where the application for temporary injunction and suit for permanent injunction is dismissed finally on merits and the contempt petition against any ad interim stay order passed during course of pendency of the application for temporary injunction is going on. But in the present case, initially interim stay order dated 15.4.2005 was passed and thereafter, finally the suit for permanent injunction has been decreed in favour of respondent. In the present case, the contempt petition under Order 39 Rule 2A CPC for disobedience of interim stay order was filed during course of pendency of suit itself.
8. As far as judgment of Hon'ble Supreme court in case of Kanwar Singh Saini (Supra) is concerned, in that case the Apex Court has clearly observed that no interim stay order was passed and it was not a case of disobedience of any interim stay order, however, the application under Order 39 Rule 2A CPC was entertained by the trial court, which is not the case here in the present matter. Rather in that case, the Hon'ble Supreme Court has observed that the application under Order 39 Rule 2A CPC is maintainable and can be entertained for disobedience of the interim stay order during course of pendency of the suit.
In the present case, it is not in dispute that application under Order 39 Rule 2A CPC filed for disobedience of interim stay order was filed during pendency of the suit and therefore, when the suit has been decreed, the application deserves to be decided on merits and cannot be disposed of as having become infructuous. Therefore, on facts of present case the ratio of judgment does not apply.
(Downloaded on 06/01/2023 at 10:16:08 PM)
(5 of 5) [CMAP-172/2022]
9. This Court finds no material illegality or jurisdictional error in the impugned order dated 01.04.2017, therefore, as a result, the revision petition No.133/2017 is devoid of merits and liable to be dismissed. Although, the revision petition No.133/2017 has already been dismissed as withdrawn, vide order dated 15.9.2022, but for reasons and discussions made hereinabove, this Court finds that the revision petition itself is devoid of merits, therefore, the same stands dismissed obviously for different reasons, hence, the order dated 15.9.2022 is not required to be recalled.
10. Accordingly, the application No.177/2022 stands disposed of.
11. Taking note of contentions of learned counsel for petitioner, it is not in dispute that as far as revision petition No.56/2017 is concerned, the same has become infructuous as the original contempt petition before the Trial Court has already been dismissed as abated. Thus, the revision petition No.56/2017 is dismissed as having become infructuous.
12. Registrar (Judicial) is directed to send copy of this order along with the order dated 15.09.2022 passed in S.B. Civil Revision Petition No.133/2017 to the trial court in order to proceed and decide the pending Civil Misc. Case No.1/2022 title Smt. Shakuntala Singh Vs. Santosh Kumar Sharma filed under Order 39 Rule 2A CPC and to decide the same expeditiously and preferably within a period of one year from the date of receipt of copy of this order, if possible.
13. All pending application(s), if any, also stand(s) disposed of.
14. Copy of this order be placed in another connected file.
(SUDESH BANSAL),J SACHIN/35-36 (Downloaded on 06/01/2023 at 10:16:08 PM) Powered by TCPDF (www.tcpdf.org)