Monday, 17 September 2018

Whether application for breach of injunction is maintainable in disposed off suit?

 For the sake of convenience. I, shall first proceed to examine the matter in issue in the Notice of Motion No. 4572 of 1995 (A.O. No. 1256/1995). By this notice of motion the respondent-Shri Marathe wanted appropriate action to be initiated against the appellants in A.O. No. 1256/1995 on the ground that they have violated the terms of the order and decree passed by the City of Civil Court dated April 6, 1994. I have already adverted to all the reliefs claimed in the said Notice of Motion. The moot question that arises for consideration is, whether the said application was maintainable in law? The trial Court has examined various facets of the arguments advanced before it without adverting to this crucial question which, in my view, goes to the root of the matter. Undoubtedly, the suit filed by the appellants in A.O. No. 1256 of 1995, being Suit No. 5935 of 1992, was compromised between the parties and the same was disposed of on April 6, 1994 on the basis of the compromise terms duly signed by the parties. The Court by that order has merely recorded the compromise and disposed of the suit on that basis. Undisputedly, this notice of motion has been filed under Order 39, Rule 2-A of the C.P.C. Unquestionably, Order 39 of C.P.C. essentially deals with matters of temporary injunctions and interlocutory orders to be passed by the Court. Power conferred under Rule 2-A is a part of the said scheme of provisions. It necessarily follows that application under Rule 2-A of Order 39 can be maintained only when the suit is pending and the disobedience/breach of any injunction granted or other order made complained of was one granted by the Court under Rule 1 or Rule 2 of that Order which was naturally to enure during the pendency of the suit or till the application under Rule 1 or 2, as the case may be. Undoubtedly, the order passed by the trial Court dated April 6, 1994 while disposing of the suit is neither an order under Rule 1 or Rule 2 of Order 39, but a decree passed in the suit on the basis of consent terms filed by the parties. In such a situation, the provisions of Rule 2-A will be inapplicable. It is well settled that the Court after passing decree becomes Functus Officio understood thus, the trial Court had no jurisdiction or authority to entertain the subject notice of motion purported to have been filed under Order 39, Rule 2-A, for the same was not maintainable.

IN THE HIGH COURT OF BOMBAY

Appeal From Order No. 1260 of 1995 with Civil Application No. 6599 of 2000 with Appeal From Order No. 1256 of 1995

Decided On: 01.10.2001

 Chembur Trombay Education Society  Vs.  D.K. Marathe and Ors.

Hon'ble Judges/Coram:
A.M. Khanwilkar, J.

Citation: 2002(3) Bom CR 161
Print Page

Whether function of court receiver continues even after disposal of suit?

 In our view, when a Receiver is appointed pending suit or appeal, the prime objective is to preserve the property by taking possession or otherwise and to keep an account of rent and profits that may be realized by the Receiver and to submit it before the court till the lis is finally decided. Ordinarily the function of receivers who are appointed comes to an end with the final decision of the case. However, even after the final decision, the Court has the discretion to take further assistance of the Receiver as and when the need arises. In the instant case, admittedly, the Appellants have already put the decree in execution for recovery of possession. We are, therefore, of the opinion that the Executing Court while executing the decree may take assistance of the Receiver or by appointing new Receiver or Commissioner for effecting delivery of possession in accordance with law and not more than that.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 2475-2476 of 2015 (Arising out of SLP (Civil) Nos. 22705-22706 of 2013)

Decided On: 27.02.2015

 Sherali Khan Mohamed Manekia Vs.  The State of Maharashtra and Ors.

Hon'ble Judges/Coram:
M. Yusuf Eqbal and Kurian Joseph, JJ.

Citation: ALLMR 2015(3) 464
Print Page

Supreme Court has deprecated practice of entertaining miscellaneous applications in disposed of writ petitions

Learned Counsel submitted that the practice of filing miscellaneous application in disposed of writ petitions are on the rise, in spite of the fact that this practice has been deprecated by this Court in various judgments. Reference was made to the judgment of this Court in Hari Singh Mann v. Harbhajan Singh Bajwa and Ors. MANU/SC/0665/2000 : (2001) 1 SCC 169. Learned Counsel further submitted that the High Court, by granting stay of arrest, is depriving the trial Courts of its power to issue orders under Section 439 Code of Criminal Procedure. Learned Counsel also submitted that the order of the High Court is also interfering with the powers of the Family Court in passing appropriate orders in the application filed under Section 125 Code of Criminal Procedure.

10. Shri Arvind Kumar, Learned Counsel appearing for the Respondent, submitted that the High Court has only granted stay of the arrest of 1st Respondent till the conclusion of the trial, consequently, no prejudice has been caused to the Appellant. Further, it was also pointed out that 1st Respondent is depositing the amount of Rs. 2,000/- per month in the Court of Chief Judicial Magistrate, Agra, as directed by the High Court and that Appellant has made an application for withdrawal of the said amount as well. Further, it was also stated that since the Appellant was not a party to the Criminal Writ Petition No. 5877 of 2003 as well as in Criminal Miscellaneous Application No. 133306 of 2004, this appeal preferred by the Appellant is not maintainable.

11. We are of the view that the High Court has committed a grave error in entertaining the criminal miscellaneous application No. 133306 of 2004 in a disposed of Criminal Writ Petition No. 5877 of 2003. Criminal Writ Petition No. 5877 of 2003 was disposed of on 25.9.2003 directing that the 1st Respondent should not be arrested until the conclusion of the investigation or submission of any report under Section 173 Code of Criminal Procedure. On an application filed by the 1st Respondent in that writ petition, the High Court later passed an order on 26.8.2004 stating that the Petitioner therein (1st Respondent) be not arrested until the conclusion of the trial. The practice of entertaining miscellaneous applications in disposed of writ petitions was deprecated by this Court in Hari Singh Mann (supra).

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1693 of 2012 (Arising out of SLP (Crl.) No. 2575 of 2010)

Decided On: 19.10.2012

Nazma Vs.  Javed

Hon'ble Judges/Coram:
K.S. Panicker Radhakrishnan and Dipak Misra, JJ.

Print Page

Sunday, 16 September 2018

Whether court should condone delay if application is made by aggrieved person not party to proceeding?

 In our opinion, having regard to the facts and circumstances of the case and further keeping in view of the fact that the appellants were not made parties  to the original writ petitions and became aggrieved by the order passed by the writ Court (Single Judge) in the writ petitions, a case for condonation of delay in filing the appeals was made out. It was, in our view, a sufficient cause for condonation of delay within the meaning of Section 5 of the Limitation Act. The High Court ought to have, in these circumstances, condoned the delay and granted permission to file the appeals to the appellants for being heard on merits.
NON-REPORTABLE
Supreme Court of India
Hetal Chirag Patel vs The State Of Gujarat on 11 July, 2018

Bench: [ U Lalit], [ M Sapre]
Citation: (2018) 7 SCC 703
Print Page