Sunday, 26 May 2013

When interim relief is granted till next date,it does not remain in force after next date if is not extended



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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