Shantinath S/o Gunadhar Muttin Vs. Iranna And Ors - Court Judgment

SooperKanoon Citationsooperkanoon.com/1235649
CourtKarnataka Kalaburagi High Court
Decided OnOct-05-2021
Case NumberMFA 201221/2015
JudgeDR. H.B.PRABHAKARA SASTRY
AppellantShantinath S/o Gunadhar Muttin
RespondentIranna And Ors
Excerpt:
in the high court of karnataka r kalaburagi bench dated this the5h day of october2021before 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. vijayapur3b). maneerahammad s/o ayub maniyar age:28. years, occ: agriculture r/o ward no.5, chadachan tq. indi, dist. vijayapur3c). zaheer abbas s/o ayub maniyar age:26. years, occ: agriculture r/o ward no.5, chadachan tq. indi, dist. vijayapur3d). 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) to3d)) this miscellaneous first appeal is filed under order xliii rule1r) of the code of civil procedure praying to allow the appeal by setting aside the impugned order on i.a.no.18 dated1106.2015 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 on2309.2021, 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. mfa no.201221/2015 4 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. mfa no.201221/2015 5 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 mfa no.201221/2015 6 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 ilr1994kar1444has 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:- mfa no.201221/2015 7 (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 mfa no.201221/2015 8 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 mfa no.201221/2015 9 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, mfa no.201221/2015 10 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: mfa no.201221/2015 11 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. mfa no.201221/2015 12 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 13 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. mfa no.201221/2015 14 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 mfa no.201221/2015 15 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*
Judgment:

IN THE HIGH COURT OF KARNATAKA R KALABURAGI BENCH DATED THIS THE5H DAY OF OCTOBER2021BEFORE 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. VIJAYAPUR3B). MANEERAHAMMAD S/O AYUB MANIYAR AGE:

28. YEARS, OCC: AGRICULTURE R/O WARD NO.5, CHADACHAN TQ. INDI, DIST. VIJAYAPUR3C). ZAHEER ABBAS S/O AYUB MANIYAR AGE:

26. YEARS, OCC: AGRICULTURE R/O WARD NO.5, CHADACHAN TQ. INDI, DIST. VIJAYAPUR3D). 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) TO3D)) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER

XLIII RULE1R) OF THE CODE OF CIVIL PROCEDURE PRAYING TO ALLOW THE APPEAL BY SETTING ASIDE THE IMPUGNED ORDER

ON I.A.NO.18 DATED1106.2015 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

ON2309.2021, 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. MFA No.201221/2015 4 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. MFA No.201221/2015 5 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 MFA No.201221/2015 6 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 ILR1994KAR1444has 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:- MFA No.201221/2015 7 (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 MFA No.201221/2015 8 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 MFA No.201221/2015 9 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, MFA No.201221/2015 10 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: MFA No.201221/2015 11 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. MFA No.201221/2015 12 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 13 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. MFA No.201221/2015 14 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 MFA No.201221/2015 15 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*