@JUDGMENTTAG-ORDER
Jyoti Saran, J.@mdashHeard Mr. Ajay Kumar Sharma, learned counsel appearing on behalf of the petitioners. This application under Article 227 of the Constitution of India is directed against the order dated 5.10.2010 passed by the learned Munsif 3rd, Gaya in Misc. Case No. 33 of 2004, whereby the application filed on behalf of the plaintiff-petitioners objecting to the continuation of the proceedings in miscellaneous case arising from an application filed under Order 39 Rule 2A of the CPC (hereinafter referred to as ''the Code'') has been rejected.
2. The facts of the matter in brief is that the petitioners had filed a title suit bearing Title Suit No. 16 of 1999 seeking declaration of title as also seeking declaration that the judgment and decree passed in Title Suit No. 63 of 1963 has been obtained by fraud and thus is nullity. The learned trial court upon consideration of the relief prayed in the title suit as also upon hearing the parties by order dated 22.9.2000 was pleased to hold the suit not maintainable as regarding relief no. 3 while holding the suit maintainable as against the other reliefs. Civil revision applications were filed by both the parties, i.e. the plaintiffs and the defendants: The plaintiff being aggrieved by order holding the suit not maintainable as against relief nos. 1 and 2, moved this Court by filing C.R. No. 2362 of 2000 and at the same time the defendants also filed civil revision application being aggrieved by the other part of the order holding the suit maintainable as against the relief no. 3 which gave rise to C.R. No. 177 of 2001. Both the civil revision applications aforesaid were admitted by order dated 10.10.2001 and rule was made returnable within three months. However, the proceedings before the learned court below were not stayed. As the proceedings continued, the learned trial court by order dated 8.4.2003 on an application filed by the defendants issued an order of injunction restraining the plaintiff-petitioners from interfering with the possession of the defendants-over the suit land. The copy of the order is placed at Annexure-1 of this application. The defendants charging the plaintiff-petitioners for violating the order dated 8.4.2003 filed an application under Order 39 Rule 2A of the Code giving rise to Misc. Case No. 33 of 2004. While the suit proceedings as well as the miscellaneous case remained pending adjudication before the court below, the civil revision applications were taken up for consideration at its hearing stage and a Bench of this Court by judgment and order dated 2.4.2010 while allowing C.R. No. 177 of 2001 preferred by the defendant-respondents, dismissed the civil revision application of the petitioners bearing C.R. No. 2362 of 2000 and as a consequence whereof Title Suit No. 16 of 1999 itself was dismissed.
3. Consequent upon the order passed in the civil revision applications, an application was filed by the plaintiff-petitioners for dropping the proceedings in Misc. Case No. 33 of 2004, inter alia, on grounds that the interim order passed in the suit proceedings having merged in the order of dismissal of the suit proceedings passed in the civil revision applications, the continuation of the proceedings in the miscellaneous case would be without sanction of law. The prayer of the petitioners having been rejected under the order impugned dated 5.10.2010, hence the present writ application.
4. Mr. Ajay Kumar Sharma, learned counsel appearing on behalf of the petitioners having argued at length on the issue has submitted that upon dismissal of the suit proceedings under the orders passed in the civil revision applications preferred by the plaintiffs and defendants, copy whereof is placed at Annexure-5 the interim order of injunction dated 8.4.2003 merged in the order of dismissal and consequent whereupon no justification lay for continuation of the miscellaneous case.
5. Learned counsel for the petitioners has relied upon a judgment of the Supreme Court reported in
6. It is submitted that consequent upon the dismissal of the suit proceedings there lay no occasion for the trial court to proceed with the miscellaneous case which arose from an interim order passed in the suit proceedings. It is submitted that the learned trial court has committed a serious error in rejecting the prayer of the petitioners. It is further the submission of the petitioners that the grievance if any, that could have survived for the defendants in a disposed of case, was by moving an appropriate application under Order 21 Rule 32 of the Code in terms of the judicial pronouncement of the Supreme Court in the case of Kanwar Singh Saini (supra) but certainly the proceedings arising from an application under Order 39 Rule 2A could not have continued after dismissal of the suit proceedings. Learned counsel in support of the said submission has also relied upon a Division Bench pronouncement of this Court reported in
7. I have heard Mr. Sharma, learned counsel appearing for the petitioners and have perused the materials on record. There is absolutely no contest on the proposition submitted by learned counsel relying upon the judgment of this Court and the Supreme Court that an interim order merges in the final order.
8. In the present case it is not in contest that the civil revision applications questioning the order of the learned trial court on maintainability having been admitted, no interim order staying the suit proceedings was passed and thus the proceedings continued. As the proceedings continued, on the prayer made by the defendants for ad interim injunction, the learned trial court by order dated 8.4.2003 (Annexure-1) issued restraint order upon the plaintiff-petitioners. On alleged violation by the plaintiff-petitioners of the order dated 8.4.2003, an application was filed by the defendant-respondents under Order 39 Rule 2A of the Code giving rise to Misc. Case No. 33 of 2004. Thus, it is not a matter in issue that the proceedings under Order 39 Rule 2A of the Code was initiated after the dismissal of the suit proceedings on 5.10.2010 rather the proceedings was initiated much prior thereto.
9. Whether or not a miscellaneous case instituted for violation of the order of injunction dated 8.4.2003 prior to the dismissal of the suit proceedings can continue despite the dismissal of the suit proceedings, is the issue posed for consideration before this Court.
10. The provisions of Order 39 Rule 2A of the Code provides for consequences for disobedience or breach of injunction issued under Order 39 Rules 1 and 2 in a suit proceedings. The provision by its very tenor takes cognizance of the breach occurring during the pendency of the suit proceedings. Certainly if the application under Order 39 Rule 2A would have been filed by the defendants charging the petitioners of violating the order of injunction after the order was passed in the civil revision applications, the matter would have been different as the suit proceeding itself stood disposed of but the case is not as such rather the application complaining breach was filed by the defendants immediately upon the alleged breach by the plaintiff-petitioners and while the suit was pending.
11. A miscellaneous case having been instituted for alleged violation of an order of injunction while the suit proceedings was alive, its continuation is not conditional upon the final outcome of the suit proceedings rather has to be considered independent thereof. In fact even if the suit proceedings ultimately stood dismissed, it would have no bearing on the continuation of the miscellaneous case and which has to be taken to its logical conclusion.
12. A somewhat similar matter came up for consideration before the Apex Court in the case of
16....Ultimately, no doubt, the High Court has found that the Civil Court had no jurisdiction to entertain the suit but all this took about six years. Can it be said that orders passed by the Civil Court and the High Court during this period of six years were all non est and that it is open to the defendants to flout them merrily, without fear of any consequence. Admittedly, this could not be done until the High Court''s decision on the question of jurisdiction. The question is whether the said decision of the High Court means that no person can be punished for flouting or disobeying the interim/interlocutory orders while they were in force, i.e., for violation and disobedience committed prior to the decision of the High Court on the question of jurisdiction. Holding that by virtue of the said decision of the High Court (on the question of jurisdiction), no one can be punished thereafter for disobedience or violation of the interim orders committed prior to the said decision of the High Court, would indeed be subversive of the Rule of Law and would seriously erode the dignity and the authority of the courts. We must repeat that this is not even a case where a suit was filed in the wrong court knowingly or only with a view to snatch an interim order. As pointed out hereinabove, the suit was filed in the Civil Court bona fide. We are of the opinion that in such a case the defendants cannot escape the consequences of their disobedience and violation of the interim injunction committed by them prior to the High Court''s decision on the question of jurisdiction.
27.... It is not as if the defendants are being sought to be punished for violations committed after the decision of the High Court on the question of jurisdiction of the Civil Court. Here the defendants are sought to be punished for the disobedience and violation of the order of injunction committed before the decision of the High Court in Vishanji Virji Mepani. According to Section 9-A, the Civil, court and the High Court did have the power to pass interim orders until that decision. If they had that power they must also have the power to enforce them. In the light of the said provision, it cannot also be held that those orders could be enforced only till the said decision but not thereafter. The said decision does not render them (the interim orders passed meanwhile) either non est or without jurisdiction. Punishing the defendants for violation of the said orders committed before the said decision (Vishanji Virji Mepani) does not amount, in any event, to enforcing them after the said decision. Only the orders are being passed now. The violations are those committed before the said decision.
13. My views also finds support in the observation of the Apex Court in paragraph 9 of a judgment reported in
9. In a given case, even if ultimately the interim order is vacated or relief in the main proceedings is not granted to a party, the other side cannot take that as a ground for disobedience of any interim order passed by the Court.
14. For the reasons aforesaid, the order impugned does not warrant any interference. This application is dismissed.
