Bombay High Court
Indarsingh S/O Hiralal Parihar vs Jawahar Education Society, Thr. ... on 21 December, 2017
Bench: A. D. Upadhye
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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
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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
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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
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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
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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
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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
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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
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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
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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
