Bansidhar Ramratan Upadhyay vs Ramchandra Ramnarayan Totla
2004 Latest Caselaw 1273 Bom

JUDGMENT

Dharmadhikari B.P., J.

1. By this revision, under Section 115 of Code of Civil Procedure, the original defendants challenge the order dated 15-4-1996 passed by Additional District Judge, Akola in Misc. Civil Appeal No. 173/1994 and the earlier order passed by Civil Judge, Junior Division, Murtizapur dated 11-10-1994 below Exhibit 65 in Regular Civil Suit No. 100/1991. They have prayed for dismissal of the application Exhibit 65 moved by the present non-applicant/plaintiff in that suit. The said application at Exh. 65 was moved by the present non-applicant for breach of orders of temporary injunction committed by the present applicants/defendants. Necessary facts in this respect are as under :

i) The non-applicant filed R.C.S. No. 36/1989 before Civil Judge, Junior Division, Karanja for declaration and permanent injunction along with the application for temporary injunction. The present revision applicants had filed caveat and, therefore, they were served with notices. As they did not file their reply or written statement in respect of the notices, the trial Court passed the judgment and decree against them under Order VIII, Rule 10 of C.P.C. and then the revision applicants preferred M.J.C. No. 4/1989, which came to be allowed on 28-4-1989. The present non-applicant/plaintiff had challenged this order in M.J.C. in present C.R.A. before this Court but that revision was dismissed. In that suit, the non-applicant/plaintiff thereafter filed M.J.C. No. 8/1989 under Order 39, Rules 2 and 2(A) of C.P.C. for violation of order of temporary injunction alleging that the present revision applicants had deliberately demolished some portion of their wall and thereby obstructed flow of drain and caused breach of status quo. During pendency of this M.J.C., another M.J.C., making similar grievance was filed on 30th June, 1990 vide M.J.C. No. 9/1990 and it is still pending. The trial Court restrained the revision applicants from causing any obstruction or hindrance to the non-applicant/plaintiff from using the said lane till decision of the suit. The said lane is situated between the houses of revision applicants and the house of non-applicant and the dispute between parties is about the ownership of said lane and land occupied by said lane.

ii) The non-applicant thereafter filed Exh. 65 pointing out that the present revision applicants kept the projection of tins and wooden ballis over the wall on the side of the land and on 21-6-1992 the revision applicants deliberately demolished the northern wall of their house and the debris accumulated in the lane at about 3.30 a.m. They stated that this was done with an intention to block the drainage of non-applicant and to prohibit them from using the said lane.

iii) The trial Court, after giving opportunity to parties, appears to have passed order holding that the revision applicants have committed breach of order of injunction and directed their detention in civil prison for a period of fifteen days. This order has been passed on 11-10-1994 and being aggrieved by the said order the revision applicants filed an appeal before District Judge, Akola. The said appeal came to be decided on 15-4-1996 by Additional District Judge, Akola and it confirmed the order passed by the trial Court. This order has been challenged in present revision application. On 12-6-1996 this Court granted stay to the impugned order of detention while issuing notice before admission. On 2-8-1996 this Court admitted the C.R.A. for final hearing.

2. Advocate M.P. Lala appearing for the revision applicants contends that the order shows total non-application of mind. He states that there is nothing on record to show that the wall was deliberately demolished by present revision applicants. He contends that it was "vis major" and he cannot be blamed for it. He further states that in any case the debris of the wall has been removed from lane later on and the lane is free for use of non-applicant. He, therefore, states that there was absolutely no reason warranting order of detention of revision applicants in civil prison.

3. As against this, Advocate B.N. Mohta appearing for non-applicant raised a preliminary objection and further contends that the revision applicants deliberately demolished the wall and further did not permit the plaintiff to remove debris from the said lane. He contends that the matter was required to be reported to Grampanchayat or Police Authorities and revision applicants also obstructed Grampanchayat servants from removing the debris. He contends that thus deliberate disobedience of the order of Court is established. He states that if wall was not deliberately demolished by revision applicants they should have themselves removed the debris or should have permitted the non-applicant or other authorities to remove the debris. According to him, no interference is called for in the concurrent impugned orders.

4. The preliminary objection raised by Advocate B.N. Mohta is about the maintainability of civil revision. He contends that 2002 amendment to provision of section 115 of C.P.C. clearly show that impugned orders as orders of interim nature and even if order passed on Exh. 65 is in favour of revision applicants that will not put an end to the suit. He, therefore, contends that the revision is liable to be dismissed as not tenable. Advocate Lala at the end made a submission in the alternate that if this Court finds that revision is not tenable, he should be permitted to file a writ petition and his detention in civil prison prohibited by interim order in this revision should further be prohibited for a period of four weeks to enable him to approach this Court in writ petition.

5. Advocate B.N. Mohta in support of his contention that revision is not tenable, relies upon an unreported judgment of this Court delivered in C.R.A. No. 339/1999 on April 29, 2003. Before the learned Single Judge the order impugned was the order dated 23-2-1999 passed below Exh. 25 in R.G.S. No. 226/1999 whereby 5th Joint Civil Judge, Junior College, Nagpur, allowed the application of plaintiff therein under Order 39, Rule 2-A of C.P.C. and directed that the property of defendant No. 2 in that suit be attached for a period of six months from the date of order. An objection to maintainability of revision fell for consideration of learned Single Judge. Both the Advocates relied upon the judgment of this Court reported at Zahida Nizamuddin Jalal v. Abidali Jafferali Syyed, 2003(2) Bom.C.R. 374 : 2002(4) Mh.L.J. 913, wherein the expression "in the course of suit" has been constituted. The Counsel for respondent/plaintiff therein contended that the orders passed in supplementary or incidental proceeding in a suit is also an order in the course of suit. While the Counsel for revision applicant contended that proceeding under Order 39, Rule 2-A is itself an independent proceeding and it has got no bearing on the suit. The learned Single Judge has held that the words "other proceedings" used in proviso to Sub- Section (1) of section 115 of C.P.C., are proceedings besides the suit and not in the suit. Such other proceedings, according to learned Single Judge, are appeal, execution etc. It has been specifically held by learned Single Judge that proceedings under Order 39, Rule 2-A of C.P.C. are supplementary proceedings in the suit and not besides suit. The learned Single Judge has recorded a finding that even if impugned order is reversed, the suit is not going to be disposed of finally. Thus, revision was held as not maintainable. According to Advocate B.N. Mohta, this ruling squarely clinches the controversy. He also relies upon the judgment of Division Bench of this Court reported at Chandu Jagannath Ambekar v. Digamber Kisanrao Kulkarni, 2004(4) Mh.L.J. 69, to contend that the view taken by learned Single Judge is in consonance with the law as declared by this Division Bench and he contends that the revision ought to have dismissed by accepting his preliminary objection. As against this, the learned Advocate Shri Lala for the applicants has placed reliance upon the judgment reported at (2003(4) C.L.J. 685). In this judgment the Division Bench of Andhra Pradesh High Court has considered the position after 2002 amendment to section 115 of C.P.C. He has relied upon paragraph 19 of this judgment to contend that if by the impugned order in fact proceeding is finally decided, it is not an interim order and hence the learned Single Judge of this Court was not right in concluding that C.R.A. filed against an adverse Order under 39, Rule 2-A of C.P.C. by defendant is not tenable. In said paragraph 19, the Division Bench of Andhra Pradesh High Court has found that the effect of deletion of proviso (b) from Sub- Section (1) of section 115 of C.P.C. is to restrict the revisional power of High Court to the extent that no revision will be maintainable against orders which are interlocutory in nature. The said Division Bench further finds that where the Court decides in proceedings which are independent or emanating from a suit finally, power of revision under Section 115 of Code would be available. He further relies upon the judgment reported at Vareed Jacob v. Sosamma Geevarghese and Ors. He invites attention of this Court to the discussion by Hon'ble Judge Shri S.B. Sinha, while delivering dissenting judgment. He relies upon paragraphs 29, 30, 31 and 34 of this ruling. The said paragraphs read as under :

"29. The Code of Civil Procedure uses different expressions in relation to incidental proceedings and supplemental proceedings. Incidently proceedings are referred to in Part III of the Code of Civil Procedure whereas supplemental proceedings are referred to in Part VI thereof.

30. Is there any difference between the two types of proceedings?

31. A distinction is to be borne in mind keeping in view the fact that the incidental proceedings are in aid to the final proceedings. In other words, an order passed in the incidental proceedings will have a direct bearing on the result of the suit. Such proceedings which are in aid of the final proceedings cannot, thus, be held to be at par with supplemental proceedings which may not have anything to do with the ultimate result of the suit."

Thus, the Hon'ble Judge has found that the C.P.C. uses different expressions in relation to incidental proceedings and supplemental proceedings. It is recorded that incidental proceedings are referred to in Part III of C.P.C., whereas the supplemental proceedings are referred to Part VI thereof. The Hon'ble Judge has thereafter considered the distinction between the two. It has been held that incidental proceedings will have direct bearing on the result of the suit and they are in aid of final adjudication of the suit while supplemental proceedings may not have anything to do with ultimate result of the suit. In paragraph 34, the Hon'ble Judge has held that the order of attachment of property, grant of temporary injunction or appointment of Receiver are supplemental in nature and effect of such orders may be felt even after decree is passed. It is expressly mentioned that an order of temporary injunction passed in a suit may have an effect even if decree is passed for the purposes of determining the status of parties violating it or for determining the rights of transferee who has purchased the property in disobedience of order of injunction. The Hon'ble Judge has concluded that orders passed in supplemental proceedings will have to be treated distinctly as opposed to an order which is ancillary in nature or which has been passed in the incidental proceedings. Learned Advocate for revision applicants therefore, contends that the order passed against revision applicants is in supplemental proceedings and its effect has no bearing in so far as final adjudication of controversy between the parties is concerned. He contends that no appeal is prescribed against such order and, therefore, revision is maintainable.

6. Apart from this preliminary objection raised by parties, they have also addressed the Court on merits. Revision applicants have relied upon the judgment reported at Choorokadan alias Rayyappadan Sanku and Ors. v. Antony, to contend that order under Order 39, Rule 2-A cannot be challenged while filing an appeal against the original decree. He has also relied upon the judgment of Karnataka High Court, reported at (1989(2) C. C. C. 380), to contend that Court considering application under Order 39, Rule 2-A has two options and when it chooses to impose penalty, it must disclose the reasons and circumstances therefor. He also relies upon the judgment of Hon'ble Apex Court reported at Samee Khan v. Bindu Khan, , to argue that when the defendants have removed the obstruction and have tendered unconditional apology to the Court, it is not necessary to put them in prison. Advocate Mohta for respondent/ plaintiff has relied upon the judgment reported at (1993(2) C.L.J. 830), to contend that if there are concurrent findings of fact recorded by the courts below, no interference with such findings is permissible under Section 115 of C.P.C. However, detail examination of these judgments is not necessary in view of the following discussion.

7. As is apparent from above, the learned Single Judge of this Court (Shri Mahajan, J.) has already taken the view that an order passed under the provisions under Order 39, Rule 2-A is an order passed in the suit and not besides the suit, and hence revision against it is not maintainable. The Division Bench of this Court has also taken the view on same lines, while dealing with an order condoning the delay in filing an application for restoration of suit. It has been held that no revision under Section 115 is maintainable against such order. In paras 12 and 13, while laying down the test to decide whether such order is an interlocutory order or final order, the Division Bench has held that the stress is on the question whether order in favour of party applying for revision would have given finality to the suit or other proceedings. If the answer is Yes then revision is maintainable. In para 13, the Division Bench has then considered the effect of order condoning the dealt in moving an application for restoration of suit dismissed exparte. The Division Bench has found that when application for condonation of delay in filing an appeal is rejected, the appeal does not even get registered and the appellant thus goes out of Court. While considering the arguments advanced before it, the Division Bench has held that an appeal presented after expiry of limitation is an appeal and order dismissing it as time bared is an order passed in the appeal and, therefore, status of application for condonation of delay is not as an independent proceedings. Thus, the impugned order passed in this case is an order passed in the suit and not in any proceedings which are besides the suit. Advocate Mohta has invited attention of this Court to the provisions of Civil Manual, particularly, Chapters XIX and XX of Vol. I. He points out that proceeding under Order 39, Rule 2-A are not treated as independent or distinct proceeding by civil manual.

8. The reliance placed by Counsel for petitioner on Division Bench judgment of Andhra Pradesh High Court is of no assistance in view of the direct judgment on the point by the learned Single Judge and also by the Division Bench of the Court. In the circumstances, I hold that civil revision application is not maintainable and it is accordingly dismissed, however, without any order as to costs.

9. In the facts and circumstances of the cases, time of one month is granted to revision applicants to take appropriate further proceedings in this respect as they may be advised.

10. The interim orders protecting them from detention by this Court on 12-6-1996 and confirmed on 2-8-1996 are directed to remain in force for further period of six weeks from today.