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MAJID HUSAIN KHAN versus ADDITIONAL DISTRICT JUDGE NO.6., SHAHJAHANPUR AND OTHERS

High Court of Judicature at Allahabad

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Majid Husain Khan v. Additional District Judge No.6., Shahjahanpur And Others - WRIT - C No. 26964 of 2006 [2006] RD-AH 9804 (18 May 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

A.F.R.

Court No. 23

Civil Misc. Writ Petition No. 26964 of 2006

Majid Husain Khan Vs. Addl. District Judge, No. 6, Shahjahanpur & others

Hon'ble Umeshwar Pandey, J.

Heard learned counsel for the petitioners.

This petition challenges the order of the appellate court dated 19.4.2006 whereby the petitioner's adjournment application has been allowed and a date for hearing of appeal as well as the application of the petitioner has been fixed.

Learned counsel contends that the temporary injunction order was passed in appeal directing the respondents to maintain status-quo on the disputed property.  In gross violation of the said order, the respondents defendants have commenced construction in the suit land and have also demolished certain construction of the petitioner-appellant. Therefore, an application under Order 39 Rule 2-A C.P.C. for charging and punishing the respondents for violation of the order was given before the appellate court, which is still pending. This application should be decided before the appeal is disposed of because after the decision of the appeal the court would become functus officio for disposal of the said application given under Order 39 Rule 2-A C.P.C. Learned counsel has placed reliance on the case law of Ram Shanker & others Vs. Suraj Prasad & others, 1962 A.L.J. 201 and has thus emphasized that  the petitioner has only made a prayer in the petition for issuing a writ of mandamus to direct the appellate court to take up the petitioner's application under Order 39 Rule 2-A C.P.C. and dispose of the same before the hearing and disposal of the appeal.

In the first place the aforesaid case law of Ram Shanker's case (supra) is in reference to then existing provisions of Order 39 Rule 2-A C.P.C. which read as follows:-

"In the case of disobedience to an injunction issued under sub-Rr. (1) and (2) of R. 2-A or of breach of any terms of any such injunction the court, in which the suit is proceeding may order the property of the person guilty, of such disobedience or breach, to be attached and may also order such person to be detained in civil prison for a term not exceeding six months, unless in the meantime the court directs his release.

On interpretation of then provision of the Rule, this court in case of Ram Shankar (supra) had propounded as follows:-

"The Court can only pass an order on an application for disobedience of injunction as long as the suit is proceeding. Once the suit is concluded whether in the original court or in the appeal, the court would become functus officio for purpose of taking any action or passing any order on the application for disobedience of injunction."

Since the relevant provision then contained that in case of disobedience or breach of any injunction order passed in a suit by the court in which that 'suit is proceeding may order the property........... to be attached and may also order of such person to be detained in civil prison..........' this court could lay down the aforesaid law. But now in the said provision, by 1976 amendment, made applicable w.e.f. 1.2.1977, material changes have been brought and it reads as below:-

2-A. Consequence of disobedience or breach of injunction -  (1) In the case of disobedience of any injunction granted or other order made under rule 1 or rule 2 or breach of any of the terms on which the injunction was granted or the order made, the Court granting the injunction or making the order, or any Court to which the suit or proceeding is transferred, may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the Court directs his release.

A perusal of the aforesaid sub-rule (1) makes it more than evident  that the clause 'the court in which the suit is proceeding' as was then available has been altogether omitted and therefore, the aforesaid proposition of Ram Shanker's case (supra) that for decision on an application by the court under Order 39 Rule 2-A C.P.C., continuity of the proceeding of suit in that court is necessary, has become inapplicable with reference to the present substituted provision brought in operation by 1976 amendment in the Code.

Thus, in the aforesaid view of the matter, the argument of the learned counsel that before the disposal  of appeal it is necessary for the court below to dispose of the petitioner's  application under Order 39 Rule 2-A C.P.C. appears to have absolutely no substance. The appeal is very much ripe for hearing and it may be disposed of on any date when it is fixed for argument but why the petitioner is not interested for disposal of his appeal and is, in-stead, anxious for disposal of the application under Order 39 Rule 2-A C.P.C. is not understandable. The petitioner's suit for partition has been dismissed by the trial court and it is against this dismissal order that the present appeal is pending before the appellate court. In case the petitioner wins in his appeal and the suit is decreed, his application under Order 39 Rule 2-A C.P.C. shall also be disposed of in accordance with law but if the petitioner looses in appeal the suit stands dismissed and in that event the petitioner's application under Order 39 Rule 2-A C.P.C. will carry no relevance.

In the aforesaid view of the matter, I do not find any infirmity in the order of the court below as to occasion an interference against it in a writ petition. The petition, thus does not appear to have any substance and is hereby dismissed.

18.05.2006

gp/


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