Hemant Sharma and Others. Vs. State of U.P. and Others. - Court Judgment

Excerpt:
[k.t. thomas and; r.p. sethi, jj.] - civil procedure code (cpc) - sections 104 - order 39, rules 1, 2, 2a, 3a, 4 and 10 - order 43, rule 1; constitution of india - article 227 - orders from which appeal lies -- when a plaintiff rushed to the civil court for an ex-parte interimorder of injunction against some of the defendants and obtained it, those defendants rushed to the high court to get that order quashed. appellant-plaintiff filed the suit on 25.6.1999 for a decree of permanent injunction restraining defendant nos.1 to 5 from dispossessing him. documents perused. ad interim injunction till then. order 39 rule 3 to be complied with. after holding thus learned single judge directed the trial court to take up the interlocutory application for injunction and pass orders on merits and in accordance with law expeditiously. order 43 rule 1 says that: an appeal shall lie from the following orders under the provisions of section 104 namely. an order under rule 1, rule 2, rule 2a, rule 4 or rule 10 of order 39. the choice is for the party affected by the order either to move the appellate court or to approach the same court which passed the ex parte order for any relief. learned senior counsel for the respondents then contended that an order granting injunction without complying with the requisites envisaged in rule 3 of order 39 be void. learned single judge stated that the trial court ought not to have granted ex parte injunction beyond thirty days to be in force. the aforesaid rule casts a three-pronged protection to the party against whom the ex parte injunction order was passed. second is the legal obligation that if for any valid reasons the court could not finally dispose of the application within the aforesaid time the court has to record the reasons thereof in writing.1. heard learned counsel for the petitioners and also learned a.g.a. appearing for the state. 2. the argument substantially is that fraught relation emanating from matrimonial bickering escalated into launching of criminal proceeding vide f.i.r. which was registered at case crime no.288 of 2010, under sections 498a,323,504,506 and 313 ipc and 3/4 of d.p.act, p.s.kachhwa,, district mirzapur.3. having considered the arguments advanced across the bar, we have a feeling that court owes a duty to the society to strain to the utmost to repair the frayed relations between the parties so that the wounded situation may be healed into a healthy rapprochement. the matter in hand also appears to be one of those cases in which reconciliation should be tried between the disputing parties.4. while referring the matter to mediation centre with the consent of the petitioners, it is directed that petitioner no.1 shall deposit a sum of rs. 10,000/- with the mediation centre by way of bank draft drawn in favour of mediation centre, high court allahabad out of which a sum of rs. 7,000/- shall be payable to the opp party no.4 and the remaining amount shall be kept for being utilised by the mediation centre. the amount aforesaid, it is further directed, shall be paid over to the opp party no.4 on her appearing before the mediation centre on the date fixed. the amount aforesaid, it may be clarified, are meant to meet expenses to be incurred for attending mediation sessions at allahabad for the opp. party no.4 and the person escorting her. 5. the office upon deposit of the bank draft shall issue notice within one week to respondent no.4 i.e the wife calling upon her to appear in the mediation centre at allahabad high court on a date to be indicated in the said notice stating therein that the bank draft deposited by the petitioner shall be delivered in the mediation centre on the date fixed. the said notice shall be served upon the respondent no.4 through c.j.m concerned. it needs hardly be said that both the parties shall appear either on the date fixed or on a future date as may be agreed before the mediation centre for reconciliation. the centre shall submit a report within one month from the date of parties appearing before it for reconciliation. the case shall be listed in the second week of september, 2010 alongwith report of mediationcentre. in the meanwhile, the arrest of the petitioners in the aforesaid case shall remain stayed.6. it may be made clear that in case, there occurs default by the petitioner either in depositing the amount or in appearing before the mediation centre on the date or dates fixed, the interim order staying arrest shall cease to be operative and the mediation centre shall immediately communicate with the office which in turn shall list the case within a week before the bench concerned for passing appropriate order in the matter. it may be clarified that the case will not be treated as tied up to this bench shall be listed before the appropriate bench. copy of this order will not be issued unless steps are taken.

Judgment:
1. Heard learned counsel for the petitioners and also learned A.G.A. appearing for the State.

2. The argument substantially is that fraught relation emanating from matrimonial bickering escalated into launching of criminal proceeding vide F.I.R. which was registered at case crime No.288 of 2010, under Sections 498A,323,504,506 and 313 IPC and 3/4 of D.P.Act, P.S.Kachhwa,, District Mirzapur.

3. Having considered the arguments advanced across the bar, we have a feeling that Court owes a duty to the society to strain to the utmost to repair the frayed relations between the parties so that the wounded situation may be healed into a healthy rapprochement. The matter in hand also appears to be one of those cases in which reconciliation should be tried between the disputing parties.

4. While referring the matter to Mediation Centre with the consent of the petitioners, it is directed that petitioner No.1 shall deposit a sum of Rs. 10,000/- with the Mediation Centre by way of Bank draft drawn in favour of Mediation Centre, High Court Allahabad out of which a sum of Rs. 7,000/- shall be payable to the Opp party no.4 and the remaining amount shall be kept for being utilised by the Mediation Centre. The amount aforesaid, it is further directed, shall be paid over to the Opp party No.4 on her appearing before the Mediation Centre on the date fixed. The amount aforesaid, it may be clarified, are meant to meet expenses to be incurred for attending mediation sessions at Allahabad for the Opp. Party no.4 and the person escorting her.

5. The office upon deposit of the Bank draft shall issue notice within one week to respondent no.4 i.e the wife calling upon her to appear in the Mediation Centre at Allahabad High Court on a date to be indicated in the said notice stating therein that the Bank draft deposited by the petitioner shall be delivered in the Mediation centre on the date fixed. The said notice shall be served upon the respondent no.4 through C.J.M concerned. It needs hardly be said that both the parties shall appear either on the date fixed or on a future date as may be agreed before the Mediation Centre for reconciliation. The centre shall submit a report within one month from the date of parties appearing before it for reconciliation. The case shall be listed in the second week of September, 2010 alongwith report of MediationCentre. In the meanwhile, the arrest of the petitioners in the aforesaid case shall remain stayed.

6. It may be made clear that in case, there occurs default by the petitioner either in depositing the amount or in appearing before the Mediation Centre on the date or dates fixed, the interim order staying arrest shall cease to be operative and the Mediation Centre shall immediately communicate with the office which in turn shall list the case within a week before the Bench concerned for passing appropriate order in the matter. It may be clarified that the case will not be treated as tied up to this Bench shall be listed before the appropriate Bench. Copy of this order will not be issued unless steps are taken.