Friday, 15 April 2016

Whether District Judge can grant stay to show cause notice issued by civil judge under O 39 R 11 of CPC?

 Mr. S.R. Rivankar submitted that in the present case the
conclusion is already reached by the learned Civil Judge and
issuance of show cause notice is mere formality. Though there
may be some substance in the contention of Mr. Rivankar that
the learned Civil Judge has come to a final conclusion but,
there is no final order passed under Order XXXIX Rule 11.
6. The learned District Judge has erred in entertaining the
appeal and granting stay to the proceedings before the Civil
Judge. It is also not clear from the impugned order whether
the learned District Judge has held appeal to be maintainable
or has postponed the decision till the disposal of the appeal.
Either course of action are not correct in law. First the appeal
was not maintainable. Secondly, the learned District Judge
ought to have considered the nature of the proceedings and
what was at stake was allegation of disobedience of the order
of the Court. By grant of stay in an appeal, which is not
maintainable, the proceedings taken out in respect of breach of
judicial order have been scuttled. The appropriate course of
action would be to permit the learned Civil Judge to pass the
final order in the matter and then entertain the appeal from
such final order.
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 544 OF 2014
 Shri Gajanan Bala Gawas,

 Versus
Me. Sagun Narayan Morjkar,

Coram:- N. M. JAMDAR, J.
Date:- 18 February 2015
Citation;2016(2) MHLJ 862

 Rule. Rule made returnable forthwith. Respondent
waives service. Taken up for final disposal.
2. The petitioners challenge the order passed by the District
Judge, Goa dated 9 July 2014 dismissing the preliminary
objection taken by the petitioner in respect of the
maintainability of the Misc. Civil Appeal filed by the
respondent.
3. The petitioners had filed a Civil Suit praying for an
injunction against the respondents. On 24 October 2009, an
order was passed by the learned Civil Judge Junior Division,
granting injunction in favour of the petitioners. This order
was confirmed by the District Judge in Misc. Civil Appeal. It is
the case of the petitioners that thereafter the respondent
obstructed the suit pathway. The petitioners accordingly filed
an application under Order XXXIX Rule 2A and 11 of Civil
Procedure Code. The learned Civil Judge heard both sides in
the application and by detailed order came to the conclusion
that the respondent has obstructed the suit pathway and,
accordingly, issued show cause notice to the respondent under
Order XXXIX Rule 11 of the Civil Procedure Code. Thereafter, 
the respondent filed a Misc. Civil Appeal. In this Civil Appeal,
the learned District Judge stayed the order passed by the
learned Civil Judge dated 21 February 2013. The petitioners
took an objection to the maintainability of the appeal which
the learned District Judge which was negatived by the
impugned order.
4. The learned Civil Judge by order dated 21 February 2013
had issued a show cause notice to the respondents under Order
XXXIX Rule 11. There is no final order passed by the learned
Civil Judge. Neither Section 104 of the Civil Procedure Code
nor Order XXXXIII Rule 1 contemplate any Misc. Appeal from
issuance of show cause notice under Order XXXIX Rule 11.
The final order is yet to be passed by the learned Civil Judge.
In the circumstances, an appeal to the District Court was
clearly not maintainable.
5. Mr. S.R. Rivankar submitted that in the present case the
conclusion is already reached by the learned Civil Judge and
issuance of show cause notice is mere formality. Though there
may be some substance in the contention of Mr. Rivankar that
the learned Civil Judge has come to a final conclusion but,
there is no final order passed under Order XXXIX Rule 11.
6. The learned District Judge has erred in entertaining the
appeal and granting stay to the proceedings before the Civil
Judge. It is also not clear from the impugned order whether
the learned District Judge has held appeal to be maintainable
or has postponed the decision till the disposal of the appeal.
Either course of action are not correct in law. First the appeal
was not maintainable. Secondly, the learned District Judge
ought to have considered the nature of the proceedings and
what was at stake was allegation of disobedience of the order
of the Court. By grant of stay in an appeal, which is not
maintainable, the proceedings taken out in respect of breach of
judicial order have been scuttled. The appropriate course of
action would be to permit the learned Civil Judge to pass the
final order in the matter and then entertain the appeal from
such final order.
7. In view of the above position, the petition succeeds. Rule
is made absolute in terms of prayer clause (a). The interim
relief granted by the learned District Judge stands vacated.
The proceedings before the learned Civil Judge will continue
as per law and the learned Civil Judge will pass final order in
the proceedings. It will be open to the respondent to challenge
the same as per law. All contentions of both the parties on
merits are kept open. No costs.
N. M. JAMDAR, J.
NH/-
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