After 11th October, 2000 there was no injunction order. The plaintiff
was represented there by the advocate but at no point of time she
requested for extension of the adinterim order till next date or till
further orders. The Roznama does not indicate that such request was
made and the adinterim order was extended beyond October, 2000. In
fact, the record shows on 26th September, 2000 the very appellant
before me tendered a draft Notice of Motion alleging breach of the
injunction order and the Court was pleased to appoint Court
Commissioner to visit the suit building and to record whether any
additions, alterations have been carried out. The Commissioner visited
the building and submitted his report on 10 th October, 2000. The
matter was shown on board on 11th October, 2000 but it was simply
adjourned to 7th December, 2000. The matter has been repeatedly taken
thereafter but the Roznama does not indicate that the injunction order
remained in force or was extended from time to time. In these
circumstances, whether any additions or alterations have been carried
out between 18th September, 2000 and 11th October, 2000 has not been
established and the findings of the learned trial Judge in this behalf are
consistent with the contents of the Commissioner's Report.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO.284 OF 2004
Mrs. Subhashini Kar nee Panda Vs. Mr. Samim Qureshi
CORAM : S.C. DHARMADHIKARI, J.
DATED : 11th January, 2013
Citation;2013(2)ALL M R 776
Heard the learned Advocate appointed for the Appellant.
This Appeal from Order challenges the order dated 5 th November,
2003 in Contempt Notices of Motion No.4914 of 2000 and 3967 of
3.
2001 dismissing them.
The appellant – plaintiff had filed suit in the trial Court and
obtained injunction against the Respondent No.1 by himself, his agents,
servants and any other person claiming under him from in anyway
altering, demolishing, reconstructing or developing by constructing any
structure and/or dealing with or committing or doing any act which will
change the nature of the suit property and the bungalow situated
thereon more particularly described in Exhibit “B” to the plaint.
It was her case that she and other Respondent Nos.2, 3 and 4 are
coowners of the property in question which has been grabbed and
occupied by the outsider Respondent No.1. Therefore, she filed Civil
Suit being S.C. Suit No.5366 of 2000. In that Civil Suit she applied for
temporary injunction. An application was made in that behalf in
furtherance whereof the adinterim order was passed on 18 th September,
2000 granting restraint as above. The argument is that this notice of
motion on which adinterim order was passed was made returnable on
11th October, 2000. Therefore, the order is deemed to be in force till
that date.
However, finding that there is a breach thereof she firstly filed
Contempt Notice of Motion No. 4914 of 2000 on 26 th September, 2000
and alleging that there is breach and violation deliberately on the part
of the Respondent No.1 of this order of adinterim injunction. When
this Notice of Motion No.4914 of 2000 was moved at her request the
trial Court appointed the Commissioner to inspect the site and submit a
report. He submitted that report and thereafter the trial Court heard
the motion and equally the second Notice of Motion No.3961 of 2001
seeking reappointment of the Commissioner to visit the suit site and
submit report. There is a second report. Thereafter, both notice of
motions were heard after pleadings namely reply and rejoinders were
filed. By the impugned order, the learned Judge dismissed both notice
of motions and that is how aggrieved by the said order dated 5 th
November, 2003, this appeal is filed.
6.
It appears that the appeal was filed through a Advocate but
lateron the appellant was appearing in person. She requested for Legal
Aid and at her request the High Court Legal Services Authority
appointed Mrs. Jakhade as her Advocate in this appeal.
7.
With the assistance of Mrs. Jakhade, I have perused the Contempt
Notice of Motion, affidavits in support thereof and the report of the
Commissioner and prior thereto the adinterim injunction order. I have
also perused the order passed by the learned Judge impugned in this
8.
appeal.
Mrs. Jakhade has argued that the learned Judge erroneously
recorded that the adinterim injunction was not in force. In fact it was
in force when the notice of motion was heard and disposed off finally.
The order is in force as long as it is not vacated. Therefore, a specific
order continuing adinterim injunction was not required. The learned
Judge has taken hyper technical view and erred in dismissing the notice
of motion even when there was overwhelming evidence on record to
show that there is a deliberate and willful breach of the order of the
trial Court.
9.
It is not possible to accept this contention because the foundation
of the breach is the contents of the reports of the Commissioner
appointed by the trial Court. The Court Commissioner records that by
order dated 26th September, 2000 the officer of the trial Court was
appointed as Commissioner to visit the site and submit the site
inspection report. The site was visited in pursuance of this order. The
Commissioner may have submitted lengthy report but what he fails to
report is whether the works referred to therein have been carried on
after the order was passed or prior thereto. He does not indicate
anything of this nature and therefore the appellant plaintiff herself was
not satisfied. Despite this report the appointment of second
Commissioner was asked and for revisit. This itself shows that the
report was of no assistance to show that after the adinterim order of
injunction was passed on 18th September, 2000, the works as stated in
The learned Judge as a matter of record found that the adinterim
ig
10.
the report have been carried out.
order was of 18th September, 2000. The learned Judge has noted
specific allegation that after injunction was passed and injunction order
was in force, on 18th September, 2000, the original defendant No.1 has
made material alterations and additions in clear violation thereof.
11.
However, in the order under challenge he has noted that the
application for adinterim injunction was moved on 18 th September,
2000, a notice was given to the defendant No.1. Defendant No.1 was
present on 18th September, 2000 when the Court passed order. The
Court directed that the notice of motion is made returnable on 11 th
October, 2000. In the meanwhile the adinterim injunction is granted in
terms of prayer clause (a) and (b) of Notice of Motion. The adinterim
order was to remain operative till next date i.e. 11 th October, 2000.
After 11th October, 2000 there was no injunction order. The plaintiff
was represented there by the advocate but at no point of time she
requested for extension of the adinterim order till next date or till
further orders. The Roznama does not indicate that such request was
made and the adinterim order was extended beyond October, 2000. In
fact, the record shows on 26th September, 2000 the very appellant
before me tendered a draft Notice of Motion alleging breach of the
injunction order and the Court was pleased to appoint Court
Commissioner to visit the suit building and to record whether any
additions, alterations have been carried out. The Commissioner visited
the building and submitted his report on 10 th October, 2000. The
matter was shown on board on 11th October, 2000 but it was simply
adjourned to 7th December, 2000. The matter has been repeatedly taken
thereafter but the Roznama does not indicate that the injunction order
remained in force or was extended from time to time. In these
circumstances, whether any additions or alterations have been carried
out between 18th September, 2000 and 11th October, 2000 has not been
established and the findings of the learned trial Judge in this behalf are
consistent with the contents of the Commissioner's Report. In these
circumstances and when subsequent Commissioners have been
appointed that would be indicative of the fact that the appellant
plaintiff could not establish and prove any breach or violation much less
deliberate and willful of the order of injunction passed by the trial
Court. Once the violations about two toilets and others were not noted
to have been made before 11th October, 2000 and in the teeth of the
violation of injunction order, then, the learned Judge was in no error in
I do not find any substance in the contentions of Mrs. Jakhade
ig
11.
dismissing the notice of motions.
that the order under challenge suffers from any serious legal infirmities
or any perversity. The order under challenge is consistent with the
materials placed before the trial Court. The learned Judge has in such
proceedings perused the record in its entirety to arrive at the conclusion
that there is no merit in the case and the complaint of deliberate and
willful breach and violation of the order of injunction.
12.
Once there is no disobedience or breach of injunction as alleged
then the application under Order XXXIX Rule 2A of the Civil Procedure
Code deserves to be dismissed and has been rightly dismissed. There is
no merit in the appeal and therefore it is accordingly dismissed. No
costs.
(S.C.DHARMADHIKARI, J.)
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