Ragini W/O Prataprao Tate vs Namdeorao S/O Kondbaji Bhasme ...
2021 Latest Caselaw 14456 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH : NAGPUR

                      WRIT PETITION NO. 3396 OF 2020


         Ragini W/o Prataprao Tate
         aged about 50 years,
         Occ. Agriculturist,
         R/o: Panchwati, Katol,
         Tah. Katol, Dist. Nagpur.                     PETITIONER

                ...Versus...

   1. Namdeorao S/o Kondbaji Bhasme
      (Since dead through L.Rs)

   i)    Smt. Chandrabhaga Wd/o Namdeorao
         Bhasme
         Aged about major, Occ. Household,

   ii) Ku. Anita D/o Namdeorao Bhasme
       Aged about major, Occ. Household,

   iii) Sandeep S/o Namdeorao Bhasme
        Aged about major, Occ: Cultivator,

         All i) to iii) R/o. Bajrang Chowk, Main
         Road, Katol, Tah. Katol, Dist. Nagpur.

   iv) Sau. Bhagwati W/o Manohar Khode
       Aged about major, Occ: Household,
       R/o: Ward No.17, Dhotkar Layout,
       Narkhed, Tah. Narkhed, Dist. Nagpur.

   v) Sau. Anju W/o Devendra Balpande
      Aged about major, Occ: Household,
      R/o:    137,   Shrikrushna    Nagar,
      Wathoda layout, Nagpur.


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   vi) Sau. Rajashree W/o Sunil Khobragade
       Aged about major, Occ: Household,
       R/o. 83, New Diamond nagar, Kharbi
       Road, Nagpur.

  vii) Sau. Gayatri W/o Rajesh Katole
       Aged about major, Occ: Household,
       R/o: 199, Mangaldeep Nagar 1,
       Manewada road, Nagpur.

  viii) Sau. Yogita W/o Prashant Gadekar
        Aged about major, Occ: Household,
        R/o: Gayatri Medical Stores, Itwari
        Umred, Tah. Umred, Dist. Nagpur.

   2. Kisan S/o Gangaranji Dharmale
      Aged about 77 years,
      Occ: Agriculturist,
      R/o: Ward No.16, Mewad,
      Tah. Narkhed, Dist. Nagpur.

   3.    Sau. Ashwini W/o Manish Jaiswal
         Aged about 43 years, Occ: Housewife,
         R/o: Ghode Plot, Katol, Tah. Katol,
         Dist. Nagpur.

   4.    Manish Kundanlalji Jaiswal
         Aged about Major, Occ: Agriculturist,
         R/o: Ghode Plot Katol, Tah. Katol,
         Dist. Nagpur.                               RESPONDENTS


 -----------------------------------------------
 Shri P.A. Teni, Advocate for the petitioner.
 Shri S.P. Bhandarkar, Advocate for the respondent Nos. 3 & 4.
 -----------------------------------------------




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                               CORAM : AVINASH G. GHAROTE, J.

DATED : 05th OCTOBER, 2021.

ORAL JUDGMENT :-

Rule, Rule made returnable forthwith.

2. Heard Mr. Teni, learned counsel for the petitioner

and Mr. Bhandarkar, learned counsel for the respondent Nos. 3

& 4.

3. The present petition has been filed by the petitioner

being aggrieved by the order dated 04.09.2020, passed by the

Special Judge, Special Court for differently abled Persons,

Senior Citizens and Marginalized Section of Society, Nagpur,

whereby the application at Exh.23 for attachment of the suit

property and to seal it till the decision of the application has

been rejected.

4. Mr. Teni, learned counsel for the petitioner submits,

that in First Appeal No. 1385/2009, this Court by an ad-interim

order dated 01.12.2009, while admitting the petition had

directed the parties to maintain status-quo in respect of the suit

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property. The matter thereafter has been sent back to the

District Judge at Nagpur for hearing of the appeal, on account

of enhancement of its pecuniary jurisdiction regarding

entertaining an appeal. It is contended that during the pendency

of the appeal, the order of status-quo, which is still in force was

violated, as a result of which, Misc. Civil Application No.

7/2018, under the provisions of Order XXXIX Rule 2-A of the

Code of Civil Procedure came to be filed by the petitioner, in

which, the evidence on affidavit of the petitioner has already

been placed on record. In view of certain admissions as claimed

to be contained in the replies of some of the respondents, the

aforesaid application at Exh.23 came to be filed, which has been

rejected.

5. Mr. Teni, learned counsel for the petitioner

contends, that in view of the statement as contained in the

replies of some of the respondents, it would be evident that

there has been breach of the order of status-quo, and therefore,

the relief as sought for attachment and sealing of the property is

necessitated, in order to protect the order of status-quo as

passed by this Court.

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6. Mr. Bhandarkar, learned counsel for the respondent

Nos. 3 & 4 submits, that the application under Order XXXIX

Rule 2-A of the Code of Civil Procedure, has to be decided

independently and it is only after leading evidence of the

parties, that any guilt can be brought home to the respondents,

specifically in view of the statement, that they were not aware

regarding the passing of the order of status-quo. He further

submits, that the application under Order XXXIX Rule 2-A of the

Code of Civil Procedure, has to be decided on its own merits

and no interim application, is entertainable, by invoking the

powers under Order XXXVIII Rule 5 or Order XXXIX Rule 1 and

2, or for that matter of Section 151 of the Code of Civil

Procedure.

7. On perusal of the provisions of Order XXXIX Rule

2-A of the Code of Civil Procedure, the same clearly indicates

that a person who is found guilty of having breached or

disobeyed an order of injunction, or the terms upon which it

was granted, has to face two consequences;

a) Attachment of the property of the person guilty of

disobedience and

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b) Detention in the Civil Prison of such person for a term

not exceeding three months.

8. The language of Order XXXIX Rule 2-A of the Code

of Civil Procedure does not brooke of any interim applications

being entertained and decided by the Court, either by invoking

the powers under Order XXXVIII Rule 5 of the Code of Civil

Procedure or Order XXXIX Rule 1 and 2 or Section 151 of the

Code of Civil Procedure. The application, has to be purely

decided on its own merits upon the evidence being led, the

consequence being already enumerated in Order XXXIX Rule

2-A of the Code of Civil Procedure. That being the position, I do

not find any infirmity in the impugned order, which holds, that

the application under Order XXXIX Rule 2-A of the Code of Civil

Procedure, has to be decided on its own merits and no

applications for interim relief are entertainable therein. The

petition is therefore without any merits and accordingly it is

dismissed.

9. Needless to mention, that it would be open, for the

petitioner to avail any remedy as permissible in law, before the

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appellate Court in this regard. No costs.

10. Rule is discharged.

( AVINASH G. GHAROTE, J.) S.D.Bhimte