Karnataka High Court
Shantinath S/O Gunadhar Muttin vs Iranna And Ors on 5 October, 2021
Author: Dr. H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH R
DATED THIS THE 5TH DAY OF OCTOBER 2021
BEFORE
THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
MISCELLANEOUS FIRST APPEAL No.201221/2015 (CPC)
BETWEEN:
SHANTINATH
S/O GUNADHAR MUTTIN
AGE: 62 YEARS, OCC: ADVOCATE
AND AGRICULTURE
R/O NOW AT VIVEK NAGAR WEST
VIJAYAPUR-586205
... APPELLANT
(BY SRI SHIVAKUMAR KALLOOR, ADVOCATE)
AND:
1. IRANNA S/O MALLAPPA MUMBAI
AGE: 63 YEARS, OCC: AGRICULTURE
R/O CHADCHAN, TQ. INDI
DIST. VIJAYAPUR-586205
2. ASHOK S/O BHIMAGOND BIRADAR
AGE: 38 YEARS, OCC: AGRICULTURE
R/O CHADCHAN, TQ. INDI
DIST. VIJAYAPUR-586205
3. AYUB S/O KARIMSAB MANIYAR
AGE: 38 YEARS, OCC: AGRICULTURE
R/O CHADCHAN, TQ. INDI
DIST. VIJAYAPUR-586205
SINCE DECEASED BY LRS.,
MFA No.201221/2015
2
3(A). MAMATAZ W/O AYUB MANIYAR
AGE: 38 YEARS, OCC: H.H.WORK
R/O WARD NO.5, CHADACHAN
TQ. INDI, DIST. VIJAYAPUR
3(B). MANEERAHAMMAD S/O AYUB MANIYAR
AGE: 28 YEARS, OCC: AGRICULTURE
R/O WARD NO.5, CHADACHAN
TQ. INDI, DIST. VIJAYAPUR
3(C). ZAHEER ABBAS S/O AYUB MANIYAR
AGE: 26 YEARS, OCC: AGRICULTURE
R/O WARD NO.5, CHADACHAN
TQ. INDI, DIST. VIJAYAPUR
3(D). MAHAMMAD SAMEER
S/O AYUB MANIYAR
AGE: 24 YEARS, OCC: AGRICULTURE
R/O WARD NO.5, CHADACHAN
TQ. INDI, DIST. VIJAYAPUR
... RESPONDENTS
(BY SRI AMEET KUMAR DESHPANDE,
ADVOCATE FOR R1, R2 & R3(A) TO 3(D))
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
ORDER XLIII RULE 1(R) OF THE CODE OF CIVIL PROCEDURE
PRAYING TO ALLOW THE APPEAL BY SETTING ASIDE THE
IMPUGNED ORDER ON I.A.NO.18 DATED 11.06.2015 PASSED IN
O.S.NO.306/2007 BY THE LEARNED SENIOR CIVIL JUDGE AND
JMFC, INDI, VIDE ANNEXURE-H AND CONSEQUENTLY ALLOW THE
I.A.NO.XVIII WITH COST.
THIS MISCELLANEOUS FIRST APPEAL HAVING BEEN HEARD
THROUGH PHYSICAL HEARING/VIDEO CONFERENCE AND
RESERVED FOR JUDGMENT ON 23.09.2021, COMING ON FOR
PRONOUNCEMENT, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
MFA No.201221/2015
3
JUDGMENT
The plaintiff in O.S.No.306/2007 in the Court of
learned Senior Civil Judge at Indi, (henceforth for brevity
referred to as 'trial Court') has filed this appeal challenging the
order dated 11.06.2015 passed by the Trial Court wherein his
interlocutory application bearing I.A.No.XVIII filed under Order
XXXIX Rule 2-A of the Code of Civil Procedure, 1908,
(henceforth for brevity referred to as 'CPC') was rejected.
2. The present appellant has filed a suit in
O.S.No.306/2007 in the trial Court against the present
respondents and others for the relief of partition and separate
possession. The suit properties inter alia was also included land
properties in different survey numbers which according to the
plaintiff have been formed into several plots and were sold to
different persons by defendant No.1. During the pendency of
the said original suit, the present appellant as plaintiff on
12.01.2012 filed I.A.No.XVI for the relief injunction restraining
the defendants from undertaking any construction and
development works in the suit schedule properties. The said
I.A.No.XVI came to be allowed by the order of the trial Court
dated 02.08.2012.
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Defendant No.1 filed an application on 19.03.2013 in the
trial Court under Order XXXIX Rule 4 of CPC for recalling the
order passed on I.A.No.XVI. The trial Court, after hearing both
side, allowed the said application i.e., I.A.No.XVII on
10.06.2015 and recalled the order passed on I.A.No.XVI. In the
meantime, on 05.04.2014, the appellant/plaintiff filed
application i.e., I.A.No.XVIII under Order XXXIX Rule 2-A r/w
Section 151 of CPC in the trial Court requesting to detain
defendant Nos.4, 16 and 47 in a civil prison and to attach their
properties and to sell them in public auction for payment of
compensation for disobedience of the injunction order passed
on I.A.No.XVI on 02.08.2012. The respondents filed their
objections to the said I.A.No.XVIII. The trial Court after
hearing both side vide its order dated 11.06.2015 rejected the
said I.A.No.XVIII filed by the plaintiff under Order XXXIX Rule
2-A of CPC.
3. Aggrieved by the same, the plaintiff in the trial
Court has preferred the present appeal under Order XLIII rule
1(r) of CPC.
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4. The respondents are being represented by their
counsel.
5. Heard the arguments from both side. The points
that arise for my consideration are:
i. Whether an appeal would lie under Order XLIII Rule
1(r) of CPC against an order passed rejecting the
interlocutory application filed under Order XXXIX
Rule 2-A of CPC?
ii. Whether the applicant in I.A.No.XVIII in the trial
Court had established that defendant Nos.4, 16 and
47 therein had disobeyed the order of injunction
granted in favour of the plaintiff on I.A.No.XVI by
the trial Court vide its order dated 02.08.2012?
iii. Whether the impugned order warrants any
interference at the hands of this Court?
6. Before the learned counsel for the appellant could
commence his arguments on the appeal, the learned counsel for
the respondents raised preliminary objection regarding the
maintainability of the appeal under Order XLIII Rule 1(r) of CPC
against the impugned order. This made this Court to hear both
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side on the maintainability aspect in the beginning. As such,
point No.1 has arisen for consideration.
7. The learned counsel for the respondents in his
arguments on maintainability submitted that by virtue of the
judgment of Gauhati High Court in the case of Banamali Dey vs.
Satyendra Chanda and Others reported in 1990 (2) Current
Civil Cases 295, Miscellaneous First Appeal under Order XLIII
Rule 1(r) of CPC is not maintainable against an order of
rejection of interlocutory application filed under Order XXXIX
Rule 2-A of CPC.
The learned counsel for the appellant in his arguments
submitted that this Court in Devikarani vs. Venkatesha Sastry
reported in ILR 1994 KAR 1444 has held that against an order
passed on the interlocutory application filed under Order XXXIX
Rule 2-A of CPC, the appeal under Order XLIII Rule 1(r) of CPC
would lie.
8. Order XLIII Rule 1(r) of CPC reads as below:
"1. Appeals from orders.- An appeal shall
lie from the following orders under the provisions of
section 104, namely:-
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(a) to (q) xxx
(r). an order under rule 1, rule 2 [rule 2-A], rule 4
or rule 10 of Order XXXIX."
9. In Banamali Dey's case (supra), Gauhati High Court
at paragraph 8 of its judgment has observed as below:
"8. From a plain reading of Rule 2A and the
nature of the orders that a Court may pass
thereunder, it is evident that an order passed by the
Court holding that there was no disobedience or
breach of injunction granted by it, is not an order
within the meaning of Rule 2A. The question of
passing an order under Rule 2A will arise only in a
case where on consideration of the information
received by it, the Court is satisfied that there was
disobedience of the injunction granted by it. It may
be noted herein that Rule 2A(1) deals with
punishment that can be awarded by the Court to a
person guilty of disobedience or breach of
injunction. The initiation of a proceeding for such
an action, however, depends on the satisfaction of
the Court in regard to the factum of disobedience or
breach. The alleged disobedience or breach
pertains to an order of the Court and it is for the
Court to determine or decide whether any such
disobedience or breach did in fact take place. If it is
not so satisfied, it may refuse to proceed further
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and in that event the question of passing an order
under Rule 2A would not arise. If, on the other
hand, the Court finds that there had been
disobedience or breach of injunction, it may pass
any of the orders of the nature specified in the said
rule. Such order would be an order under Rule 2A
and would be appealable order under Order 43,
Rule 1(r). But no appeal has been provided against
an order passed by the Court refusing to initiate a
proceeding for action under Rule 2A on the ground
that in its opinion there was no disobedience or
breach of the injunction order passed by it. ...."
10. The learned counsel for the appellant relied upon
Devikarani's case (supra) wherein a Co-ordinate Bench of this
Court in paragraph-25 of its judgment was pleased to observe
that orders rejecting application filed under Order XXXIX Rule
2-A of CPC are appealable under Order XLIII Rule 1(r) of CPC
and such an appeal cannot be treated as a Regular First Appeal,
but only as a Miscellaneous First Appeal. It is relying upon the
judgment in Devikarani's case (supra), the learned counsel for
the appellant submitted that a conjoint reading of Section
104(1)(i) of CPC r/w Order XLIII Rule 1(r) of CPC makes it clear
that for rejection of interlocutory application filed under Order
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XXXIX Rule 2-A of CPC also, it is a Miscellaneous First Appeal
under Order XLIII Rule 1(r) of CPC alone lies.
11. A careful reading of Order XLIII Rule 1(r) of CPC
would go to show that the section does not make any
distinction between an order rejecting the application filed
under Rule 2-A of Order XXXIX of CPC and that an order
allowing such application by prescribing punishment for the
alleged disobedience or breach of injunction. Had it been the
intention of the Legislator to make such bifurcation or
distinction and restrict the scope of filing appeal under Order
XLIII Rule 1(r) of CPC only as against the orders made allowing
the application filed under Order XXXIX Rule 2-A of CPC, then
the Legislator would have specifically mentioned the same in
the section and drafted the section limiting its scope and
enabling filing of the appeal only in the case of allowing the
application. It is also for the reason that in the very same
Order XLIII Rule 1 of CPC, the Legislator has made such
distinction and confined the scope of appeal only for certain act.
To illustrate, under Order XLIII Rule 1(c) of CPC, the provision
to prefer an appeal is made only in case where an application is
rejected which is filed under Order IX Rule 9 of CPC. Similarly,
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the provision of filing an appeal is provided under Order XLIII
Rule 1(k) of CPC only where an order passed under Order XXII
Rule 9 of CPC would be resulting in refusing to set aside the
abatement or dismissal of a suit. Thus, the intention of the
Legislator is not that where the Court holds that there
is disobedience of its order of injunction and proceeds to
prescribe punishment, it is only then, the aggrieved party can
file an appeal under Order XLIII Rule 1(r) of CPC.
12. The contention of the respondents that the question
of passing an order under Rule 2-A of Order XXXIX of CPC will
arise only in a case where on consideration of the information
received by it, the Court satisfies that there was disobedience of
the injunction granted by it, is also not acceptable for the
reason that though Rule 2-A of Order XXXIX of CPC prescribes
punishment for consequence of disobedience or breach of
injunction granted or other order made under Rule 1 or Rule 2
of the same Order, but the said Order nowhere mentions as to
what amounts to a disobedience of any injunction granted or
other order made under Rule 1 or Rule 2 of Order XXXIX of
CPC. Thus, while considering the application filed under Order
XXXIX Rule 2-A of CPC, the Court may have to raise two points:
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Firstly, as to whether any disobedience of any injunction
granted or other order made by it has been established.
The second point would be as to whether the respondents
in the application would be liable to be punished.
It is only if the first point is answered in the affirmative,
consideration of the second point arises. As such, before
prescribing any punishment for the alleged violator of the order
of the Court passed under Rule 1 and Rule 2 of Order XXXIX of
CPC, the Court has to first see about the existence of alleged
disobedience or breach of the order/injunction. As such, the
application filed under Order XXXIX Rule 2-A of CPC invariably
requires the Court dealing with the application to make its
observation on the establishment of the alleged act of
disobedience of any injunction granted or other order made by
it. Thus, even if the finding of the Court on the said point would
be in the negative, still it would be an order passed by the
Court under Rule 2-A of Order XXXIX of CPC.
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13. Section 104 of CPC speaks about the orders from
which appeal lies. Clause (i) of sub-Section (1) of the said
Section reads as below:
"104(1). Orders from which appeal lies.-
(1) An appeal shall lie from the following
orders, and save as otherwise expressly provided in
the body of this Code or by any law for the time
being in force, from no other orders.-
(a) to (h) xxx
(i). any order made under rules from which an
appeal is expressly allowed by rules.
[Provided that no appeal shall lie against any
order specified in clause (ff) save on the ground
that no order, or an order for the payment of a less
amount, ought to have been made.]"
14. A conjoint reading of Section 104 (1)(i) of CPC with
Order XLIII Rule 1(r) of CPC would go to show that an order of
rejection of the application which application is made under
Order XXXIX Rule 2-A of CPC would also be an order made
under Order XXXIX Rule 2-A of CPC. As such, the appeal would
lie against the said order under Order XLIII Rule 1(r) of CPC.
MFA No.201221/2015
Therefore, the argument of the learned counsel for the
respondents that the present appeal is not maintainable under
Order XLIII Rule 1(r) of CPC is not acceptable.
15. On the merits of the case, it is the contention of the
appellant/plaintiff that defendant Nos.4, 16 and 47 in the trial
Court have disobeyed the order of injunction dated 02.08.2012
passed on I.A.No.XVI by the trial Court against them.
16. The learned counsel for the appellant while
reiterating the same submitted that there is also an order of
status-quo passed subsequently in the matter which also has
not been obeyed by the defendants in the trial Court.
17. The learned counsel for the respondents in his
arguments submitted that even though I.A.No.XVI filed by the
plaintiff was allowed by the trial Court, however, at the instance
of defendant No.1 who filed I.A.No.XVII under Order XXXIX
Rule 4 of CPC, the order passed on I.A.No.XVI came to be
recalled by allowing I.A.No.XVII by the trial Court vide its order
dated 10.06.2015. As such, when the very order which is
alleged to be disobeyed itself is recalled, the question of
disobedience of the said order does not arise.
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18. A perusal of the impugned order and the materials
placed before this Court would go to show that the order passed
on I.A.No.XVI dated 02.08.2012, which is now alleged to have
been disobeyed by the defendants has been recalled by the
very same trial Court by allowing I.A.No.XVII filed by defendant
No.1 under Order XXXIX Rule 4 of CPC vide its order dated
10.06.2015. Admittedly, while passing the said order dated
10.06.2015 recalling its earlier order passed on I.A.No.XVI, the
trial Court has not mentioned any alleged disobedience or
breach of injunction by the defendants from the date
02.08.2012 till allowing I.A.No.XVII on 10.06.2015 which would
attract an action under Order XXXIX Rule 2-A of CPC. Thus, act
of the trial Court as well as intention of the trial Court which is
further reflected in the impugned order would clearly go to
show that recalling of the order passed on I.A.No.XVI dated
02.08.2012 by allowing I.A.No.XVII is in fact making the said
order passed on I.A.No.XVI a non est. Thus, earlier order dated
02.08.2012 is as good as it was not in existence. Therefore,
the trial Court observing that in such a circumstance,
considering the alleged violation of the said order does not
survive for its consideration proceeded to reject I.A.No.XVIII
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filed under Order XXXIX Rule 2-A of CPC. I do not find any
infirmity, illegality or error in the said order warranting any
interference at the hands of this Court.
19. Accordingly, I proceed to pass the following order:
ORDER
The appeal stands dismissed as devoid of merit.
Registry to transmit a copy of this judgment to the
concerned trial Court without delay.
Sd/-
JUDGE
NB*
