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IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
P.S. Brahme, J.
Vitthal Shriram Kharbadkar .... Applicant.
Versus
Pandurang Irbhanji Kadu.... Respondent.
Civil Revision Application No. 912 of 2001, decided on 10-12-2001.
Advocates appeared :
C.S. Kaptan, for applicant.
C.P. Sen, for respondent.
Order XXXIX, Rule 2-A - Jurisdiction of Appellate Court - The court held that the Appellate Court has no jurisdiction to decide the appeal against the order passed by the trial Court on the application under Order XXXIX, Rule 2-A of the Code of Civil Procedure alleging breach or disobedience of the order of injunction. The legal position was accepted by the Counsel for the respondents, and the revision application was allowed.
Fact of the Case:
The revision is directed against the order passed by the Appellate Court in Misc. Civil Appeal No. 129/2000 challenging the order passed by the Civil Judge (Jr. Dn.), Murtizapur in Registrar Civil Suit No. 52/1996 below the application Exhibition 46, under Order XXXIX, Rule 2-A of the Code of Civil Procedure, alleging that the applicant has committed breach of injunction. The trial Court rejected the application, but the Appellate Court allowed the appeal and passed the order of detaining the applicant in custody for 15 days for having committed breach of the injunction order.
Finding of the Court:
The court found that the Appellate Court had no jurisdiction to decide the appeal against the order passed by the trial Court on the application under Order XXXIX, Rule 2-A of the Code of Civil Procedure. The legal position was accepted by the Counsel for the respondents, and the revision application was allowed.
Issues: Jurisdiction of Appellate Court to decide the appeal against the order passed by the trial Court on the application under Order XXXIX, Rule 2-A of the Code of Civil Procedure.
Ratio Decidendi: The legal position, as per the Bombay High Court Amendment to Rule 1(r), sub-rule (r), excludes the Order under Rule 2-A of Order XXXIX of the Code of Civil Procedure from being appealed against. This legal position was accepted by the Counsel for the respondents, leading to the revision application being allowed.
Final Decision: The order passed by the Appellate Court in Misc. Civil Application No. 129/2000 on 30-8-2001 was set aside, and the revision application was allowed.
2. This revision is directed against the order passed by the Appellate Court in Misc. Civil Appeal No. 129/2000 challenging the order passed by the Civil Judge (Jr. Dn.), Murtizapur in Registrar Civil Suit No. 52/1996 below the application Exhibition 46, under Order XXXIX, Rule 2-A of the Code of Civil Procedure, alleging that the applicant has committed breach of injunction. The trial Court has rejected the application. The Appellate Court allowed the appeal and passed the order of detaining the applicant in custody for 15 days for having committed breach of the injunction order.
3. It is contended by Shri Kaptan, the learned Counsel for the applicant, that the Appellate Court has no jurisdiction to decide the appeal against the order passed by the trial Court on the application under Order XXXIX, Rule 2-A of the Code of Civil Procedure alleging breach or disobedience of the order of injunction. It is submitted and pointed out by Shri. Kaptan that in view of the Bombay High Court Amendment to Rule 1(r), sub-rule (r), the Order under Rule 2-A of Order XXXIX of the Code of Civil Procedure is excluded. Thereby no appeal is tenable against the order passed under Rule 2-A of Order XXXIX of the Code of Civil Procedure. This legal position is accepted by the Counsel for the respondents. In view of this legal position, the revision application is to be allowed.
4. The order passed by the Appellate Court in Misc. Civil Application No. 129/2000 on 30-8-2001 is set aside.
Rule is made absolute in the aforesaid terms.
No order as to costs.
Revision application allowed.
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