Rajasthan High Court
Santosh Kumar Son Of Late Shri ... vs Smt. Shakuntala Singh Wife Of Shri ... on 3 January, 2023
Bench: Sudesh Bansal
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
(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dismissed as withdrawn and the S.B. Civil Revision Petition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.
(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
(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.
(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
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