Bombay High Court
Case Details
1 cra1.20 judgmentIN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADCIVIL REVISION APPLICATION NO. 01 OF 2020Madanrao s/o Aparao Shelke,Age; 64 years, Occ; Pensioner & Agri,R/o; Yeldarkar Colony, Parbhani,Tq. Dist. Parbhani....PETITIONER (Orig.Deft.No. 1) VERSUSSunderrao s/o Munjaji Shinde,Age; 46 years, Occ; Service,R/o; Wazur, Tq. Purna,District; Parbhani....RESPONDENT (Orig. Plaintiff)……………………….Advocate for the Applicant : Mr. Girish K. (Naik) ThigaleAdvocate for the Respondent : Mr. M.P. Kale (Caveator)………………………..CORAM : SANDIPKUMAR C. MORE, J. Date :- 01.03.2024ORDER :1.The present applicant, who is the appellant in MCA No.27 of 2019 has challenged the judgment and order passed by the
Legal Reasoning
2 cra1.20 judgmentlearned Principal District Judge, Parbhani in the said appeal on13.12.2019, whereby the learned appellate Court upheld the orderpassed by the learned Joint Civil Judge, Junior Division, Purna i.e.the learned trial Court in MCA No. 51 of 2014 whereby, the presentappellant was ordered to be detained in civil prison for threemonths on account of breach of injunction order dated 08.07.2011.2.The background facts are is as under :The present respondent had filed a Special Civil Suit No.16 of 2011 against the present petitioner and one Sau. GangasagarLabde for specific performance of contract in respect of Gut No. 110at village Dagadwadi, Tahsil Purna. Thereafter, the said suit wastransferred to Joint Civil Judge, Junior Division, Purna i.e. the trialCourt and renumbered as 21 of 2012. Before that the learned CivilJudge, Senior Division, Parbhani vide order dated 08.07.2011 hadrestrained the present appellants temporarily from interfering intothe peaceful possession of the plaintiff i.e. the present respondentover the suit property, till disposal of the suit. The said order oftemporary injunction was challenged by the present appellantbefore the learned appellate Court, Parbhani, but in the said appealit was revealed that during the subsistence of the of the aforesaid 3 cra1.20 judgmentorder of temporary injunction, the present appellant along withcertain other persons carried out the measurement in the suit land.Thus, the present respondent filed MCA No. 51 of 2014 against thepresent appellant and other persons by invoking Order XXXIX Rule2 (c) of the Code of Civil Procedure. The learned trial Court byconsidering documents on record opined that the present appellanthad committed breach of injunction order dated 08.07.2011 passedin RCS No. 21 of 2012 and thereby ordered for detention of theappellant in civil prison for three months. The appeal filed againstthe said order has already been rejected by the learned PrincipalDistrict Judge, Parbhani. Hence this petition.3.Learned Advocate for the appellant submits that theoriginal Civil Suit bearing RCS No. 21 of 2012 between the presentappellant and respondent has already been decided by the learnedtrial Court partially by directing defendant No. 1 in the said suit torepay an earnest amount of Rs. 4,00,000/- to the presentrespondent/plaintiff. Thus, the learned Advocate for the appellantpointed out that when the prayer for specific performance of claimof the present respondent/plaintiff has been rejected finally, theinterim order, which was only in force till disposal of that suit, now 4 cra1.20 judgmentmerges into the final order and since the claim of specificperformance of the present respondent is rejected, the interim orderstands automatically nullified and as such when the said order isnullified, consequently the order in respect of breach of that orderhas also come to an end.4.On the contrary, the learned Advocate for therespondent submits that even though the claim of specificperformance raised by the present respondent/plaintiff in RCS No.21 of 2012 has been rejected, but the order of learned trial Courtwas very much enforced when the present appellant along withother persons carried out the measurement in the suit landcontrary to the said order. Thus, he prayed for rejection of thisCivil Revision Application.5.Heard the rival submissions. Also perused thedocuments on record.6.Admittedly, the order in respect of which the breach wascommitted by the present appellant, was in force when he carriedout the measurement of the suit premises contrary to the said 5 cra1.20 judgmentorder. Moreover, the appeal against the detention order passed bythe learned trial Court has also been dismissed. However, theappellant has pointed out that as per the observations of Hon’bleApex Court in the judgment reported in 2012 (4) SCC 307 in thecase of Kanwar Singh Saini v. High Court of Delhi, the presentissue has been resolved. He pointed out the observations of theHon’ble Apex Court in paragraph No. 17, which reads as under :“17. Application under Order 39 Rule 2-A CPC liesonly where disobedience/breach of an injunctiongranted or order complained of was one that isgranted by the court under Order 39 Rule 1 and 2CPC, which is naturally to enure during thependency of the suit. However, once a suit isdecreed, the interim order, if any, merges into thefinal order. No litigant can derive any benefit frommere pendency of case in a court of law, as theinterim order always merges in the final order to bepassed in the case and if the case is ultimatelydismissed, the interim order stands nullifiedautomatically.”7.On going through the aforesaid order, it has beenclarified by the Hon’ble Apex Court that once the suit is decreed,the interim order, if any, passed in the said suit merges into thefinal order and no litigants can derive any benefit from merependency of the case in the Court of Law. It has been also observedthat if the case is ultimately dismissed, the interim order stands 6 cra1.20 judgmentnullified automatically.8.In the instant case the claim of present respondent wasfor specific performance of contract executed between defendant No.1 and himself in respect of the suit land. The present appellant hadalready purchased the suit land when the said agreement of salewas in existence. However, on final adjudication of the suit i.e. RCSNo. 21 of 2012 the learned trial Court has rejected the claim of thepresent respondent/plaintiff and directed defendant No. 1 in thesaid suit to repay an earnest money of Rs. 4,00,000/-, which shehad taken at the time of execution of agreement of sale. As such, onfinal disposal of the suit, the main prayer of presentrespondent/plaintiff of claiming specific performance of contracthas been rejected by the learned trial Court, therefore, as per theobservations of the Hon’ble Apex Court in the case of Kanwar SinghSaini (supra) as mentioned above the interim order dated08.07.2011 has automatically got nullified. As such, when the saidorder has already been nullified at the final adjudication of the suit,no question will arise for punishing the present appellant forcommitting breach of the said order.9.Even otherwise also, it appears that, the learned trial 7 cra1.20 judgmentCourt had passed the aforesaid injunction order dated 08.07.2011,only for temporary period i.e. till the disposal of the suit and relyingon the recitals of the so called agreement of sale, wherein, thepossession of the suit land was allegedly handed over to the presentrespondent/plaintiff. However, in the final judgment in the saidsuit passed by the learned trial Court, it is observed that thoughthe present respondent/plaintiff had claimed to be in possession ofthe suit land but he could not adduce any satisfactory evidence asregards his actual possession over the suit land, by examining anyneighbouring agriculturist of the suit land. Moreover, the revenuerecord of the suit land and the mutation entry clearly revealed thatthe present appellant was owner and possessor of the suit land.Therefore, on this count also the order dated 08.07.2011 appears tobe erroneous. Therefore, considering all these aspects and theobservations of the Hon’ble Apex Court, the order dated 08.03.2019passed by the learned trial Court directing the detention of thepresent appellant in civil prison for three months and the orderpassed by the learned Principal District Judge, Parbhani confirmingthe said order vide its order dated 13.12.2019 in Misc. Appeal No.27 of 2019 are required to be set aside. Hence the Civil RevisionApplication stands allowed and the orders of both the Courts below
Decision
8 cra1.20 judgmentnamely order dated 08.03.2019 passed by the learned Civil Judge,Junior Division, Purna in MCA No. 15 of 2014 and judgment andorder dated 13.12.2019 passed by the learned Principal DistrictJudge, Parbhani in Misc. Appeal No. 27 of 2019 are quashed andset aside. The Civil Revision Application is accordingly standsdisposed of.( SANDIPKUMAR C. MORE ) JUDGEmahajansb/