Sunday, 24 July 2016

Whether appeal is maintainable against order of civil imprisonment passed in application for breach of injunction?

The proceeding filed for punishment for breach
of injunction order is treated as an independent
proceeding. Power is given to the civil Court to send the
person who is guilty of the breach to civil prison. In view
of the nature and scope of the inquiry, it needs to be
presumed that higher and more rights are given by the
legislature to the person against whom the order of civil
imprisonment is made. Scope of revision is limited and for
that reason also this Court holds that appeal is available
against such order.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Civil Revision Application No.107 of 2014

Shankar S/o Anna Jadhav. .. Petitioner.
Versus
Sainath S/o Dagdu Jadhav. .. Respondent.


 CORAM: T.V. NALAWADE, J.

 DATE : 21st MARCH 2016
Citation: 2016 (3) ALLMR575

1) The proceeding is filed to challenge the
judgment and order M.A.R.J.I. No.16/2009 which was
pending in the Court of the Civil Judge Junior Division
Khultabad, District Aurangabad. The said proceeding was
filed under provision of Order 39 Rule 2-A of the Code of
Civil Procedure by the plaintiff. The trial Court has held
the present petitioner guilty of breach of order of
temporary injunction and the trial Court has ordered to
send the present petitioner to civil prison for 15 days.
Both the sides are heard.

2) The provision of Order 43 Rule 1(r) of the CPC
was not made applicable to this State in view of the
Bombay Amendment of 1st October 1983. It appears that
there are conflicting decisions on the tenability of the
revision against the order made under aforesaid provision.
It appears that in cases reported as 1993 (1) Bom. C.R.
131 (Dry Chillies Brokers Association v. Dnyaneshwar
Chamat) (Nagpur Bench) and 2002 (3) Bom. C.R. 593
(Vitthal Shriram Kharbadkar v. Pandurang Irbhanji
Kadu) (Nagpur Bench) it was held by this Court that as the
provision of Order 43 Rule 1(2) of the CPC as amended for
this State does not provide for filing of appeal, the appeal
is not tenable and so revision needs to be filed. As against
these two decisions there are three decisions of this Court
like (1) 1994(1) Bom. C.R. 366 (Harivilas Madhavprasad
Ruia v. Viraf Ardeshir Udwadia), (2) 2005(2) Bom. C.R. 43
(Bansidhar Ramratan Upadhyay v. Ramchandra
Ramnarayan Totla); and (3) 2010 (Supp.) Bom. C.R. 940
(Vasant Raghobaji Talekar v. Natwarlal Rantansi
Thakkar). In these 3 cases this Court considered other
provision of the CPC like provision of section 104(1)(h) of
the CPC which runs as under :-

"104. 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:-
(h) an order under any of the provisions of this Code imposing
a fine or directing the arrest or detention in the civil prison of
any person except where such arrest or detention is in
execution of a decree."
3) In one of the cases cited supra it was held that
the revision is not tenable as the order would not put to an
end the suit itself.
4) Learned counsel for the petitioner submitted
that there is one more portion in section 104 of the CPC
like 104(1)(i). that portion reads as under :
"(i) any order made under rules from which an appeal is
expressly allowed by rules."
Learned counsel submitted that in view of this provision
and when in Maharashtra, provision of Order 43 Rule 1(r)
of the CPC is not applicable the appeal cannot lie and only
revision can lie. This proposition is not acceptable. In
section 104 of the CPC categories of the cases in which
appeal is available are given and section 104(1)(i) is one
of those categories. Due to State amendment of some
portions of Order 43 Rule 1 of the CPC, the scope of other
provision of section 104, the part like 1(h) cannot be

reduced. In the present matter it can be said that
provision of section 104(1)(h) is applicable. The provision
of remaining portion like (i) of this section was also
applicable in the past. By the State amendment care is
taken to remove the relevant portion of section 104(1)(i)
but due to that it cannot be said that appeal cannot be
filed as specifically provided under section 104(1)(h) of
the CPC.
5) The proceeding filed for punishment for breach
of injunction order is treated as an independent
proceeding. Power is given to the civil Court to send the
person who is guilty of the breach to civil prison. In view
of the nature and scope of the inquiry, it needs to be
presumed that higher and more rights are given by the
legislature to the person against whom the order of civil
imprisonment is made. Scope of revision is limited and for
that reason also this Court holds that appeal is available
against such order.
6) It appears that the present petitioner had
initially filed appeal in District Court but it was withdrawn

in view of the aforesaid observations made in the case
reported as 1993 (1) Bom. C.R. 131, cited supra.
7) Learned counsel for the petitioner has
apprehension that due to the order which this Court is
making the petitioner may lose the right of appeal as the
order was made by the Civil Court on 26th April 2014.
When there are conflicting decisions of this Court like in
the present matter there is always liberty to the
subordinate judiciary to accept one of the two views of
this Court provided that there is no precedent on the point
involved from the Supreme Court. In view of this position,
this Court holds that the present petitioner will be entitled
to take benefit of section 14 of the Indian Limitation Act.
8) With these observations this Court holds that
the revision is not tenable. The revision is disposed of as
not tenable. However, there is liberty to the present
petitioner to file appeal in District Court. Interim relief
given by this Court is continued for a period of one month
during which period, the proceeding needs to be filed.
 Sd/-
 (T.V. NALAWADE, J. )

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