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IN THE HIGH COURT OF KARN_x3£FA_E§;A 2:51' 1"'
DATED THIS THE 93% DAY <;)_'11~JUNE'2[§'1 '
BLT5F_O'£;E '
THE HONBLE D/I1i{.JUST1_(ZiE'»vS_.fJ:SATYANARAi'ANA
MFA.i\TC}. 3 680;{2V0b9%[V~{cPC)
BETWEEN :
1.
Mrs.F1*€iiy_ ~--
W/0 1::1_te--i;M:f.R.H;Rusfu1;'r1_ji;
Aged _ab~:)ut '
1'vIr_c;odyéjV ' Ru ' --. '
S/'0 late Ix/hf.R,H_.Ru§tun'1ji,
Aged 4§1bf) L1'L 3.2 yrs .,
, M1'..Xerxés ..I}§{1§stu§.nji,
§'5;4--Ig 13:16 Mr.R';'H'.'Rustumji,
' 2 _, I?\g€.d ElbQLlt 30 yrs...
_ AL: a:'_€ Rustumji Residency
87,.Ri:jh"1n0nd Road,
Bangalore 560 025.
{by Sri.VAc¢iitya Sondhi, Adv)
M /3 Rustumji Developments
A regci, partfirzership firm
At Richmond Towers,
12. Richmond Road
Bangalore 560 025
Repby its Mzznaging Partmir
ME' N.E5LRL2sm:1':ji,
KI! Appellants
2. lVII'.N.t'l.RLlSiU.iT1ji
S/o l\/lr.H.Rusturnji
Aged about 64 yrs,
Richmond Towers__
12, Richmond Road, _ _ '- V'
Bangalore 560 025; it } ;. Respondents
(by M/S.KOil1E1l and Bhanii’; Adv £05,323 1 .V ” ‘
This apiiealgis filed§Lu/Or’der”–43….Rule MR) of the CPC
against the:.oi<di3_1' ,1; l–..2009{passed in OS.No.5163/2000
on the file' _oi'.jt'ne Add'l'e..C'it3r.i'Ciigril' Judge, Bangalore City,
(SCCH_1 3], Bang"alore,.._rej_eCting_th~e IAJGII filed under Order
XX}flX;VRule'i\./f» _2A bf CFC; praying to take action against the
21" defendant. 'i'ot"*-..disohley'i'ng' the order of this Court below
passed on [A1 rnadefon 1592002 in the interest of justice.
Thisxiaplpeal e__on;.ing…l-on for admission this day, the court
delivered. the fei iowingz '
é —- A JUDGMENT
jThenpb1ai"ntiffs in OS.No.5l63/2000 have come up in this
appeal the one line order passed by the court below
; on I2}&.Ne,«i6 filed under Order 39 Rule 2A, epc.
"f2,__Briei' facts leading to this appeal are as unden-
V Appellants herein who are plaintiffs in the Court below
{tied a suit in OS.No.5l83/2000 seeking specific performance
of the agreements dated 31.3.1988 entered in to between them
and defendants witii rei'e:ren.ee to suit seheduie properties.
Ct'?
During the pendeney of said proceedings’,'”~–.an..A_”‘or{:ler’»Qf
temporary i1’1jur1ello11 was granted in’ ..f2tx_r0u1– .__.V0’f_ plaintiffs 5
pursuant to an application filed_ by
1 and 2, ere, which is not ii’r:l:Eispule;*- li’s;= uc}k:l{£é’fil1ed by
appellants herein that/” said interim
order defendants herein’ suit schedule
properties in Of th€ COurt below.
Hence, plain”%;l’l’l’sV under Order 39
Rule 2A.
is an that an the said application an
independerr:i_Vhhenqniryyrsvgllso conducted by the Court b€1OWA
p_ Thf:1″3eal’:_e:’,ppborh”:he____parties have addressed their arguments.
‘$ira.,ngely,. l:h_e’*s_aid application came to be disposed of by the
:3-rder’ irnpnggnezzfi, which is (me line order datecl 127. 1.2009 reads
as ‘i:~–nder:’– v
A _ l 4′ **17leLo9 PRR. D1 and 2 ss Order on
V here.
A Parties are absent. Orders pronounced in
open eeurl. lA.l6 is rejected. P/E on merits.
,1?/it”
9
we»?
4-, The eourt below alter eonsldering_….the.”serious
allegation made by the plaintiffs against d€l’€I’l€lV:EiI1l:,Vlf::”‘~l/lfl’l’lCll.’K
with regard to contemptuous act said to’ha\}-=e e.;ornn:i”ttl.ed”hy the 7.
clefendants against the intelfim
below, alter having 1’ee0r<ledllp:.p:l"the hxevlclenee; said'
application in lA.l6 anal. thellpa-rtievs, ought to
have given jtltspposing of the said
application and whatever be
the order it; on the ease.
‘ithpugned Clearly discloses that the
court belowuhaslnolt,’l.:app_l1etl its mind. It has considered the
said;-piapplieation “HIV a very Casual manner though the allegations
. nlaele _ar:e –qtt’lt,e serious, which Virtually amounts to showing
H &lsl§fes}>’ee’l’V. or contempt to the order of the court which
cannot”-he “g:Ier1’nit,ted.
6, It is submitted by the Counsel for appellants that
l V ___sluhsequent to filing of the present appeal the aforesaiel suit
a,
filed by then} is ellsmissed for default’ in respect of which they
have filed an applieat,io1: antler Order 9 Rule 30, CFC for
Q”?
I
{II
no
restoration {if the same, which is :_. in
Mlse.N’e.32:2/2009, Be that as it may. ThQi,:ghl_:’inlth:e 4ins§t’aiii
case the dismissal of the suit is p’iendi1′;§jstdnsideratten ir3__the l
aforesaid miscellaneous pr0ee'<:dings,"pit'd0es snbt.e0'rne:'3in'ithes
way of the court below taking matter to pass
orders on the application taking in to
Consideration the evidenlce on the said
application by the parties to
suit. l L V
Counsel for appellant relied
upon the ée:;isi.mis-_:e:;des:éd by the Apex Court in the matter of
Pritri'aWi_lAl\la_t,h lQai'n.,_–_ys~ State of Jharkhand and Others, (2004)
~ l'yyl~:.e_rein it is observed by the Apex Court as under:
a given case, even if ultimately the
order is vacated or relief in the main
'prdgteeding is not granted to a party, the other
AA cannot take that as a ground for
disobedience of any interim order passed by the
court."
.6..
And also in the matter of K.Seshappa »–vs~ St.l?r~a.n_e.i.s’
Chure, Chikkeihallaptzr, i999(5} Kar.L.J itdiéslb
observed by this Court as under:
“Th6 l3ufP0rt of Rhle 2;A is
see that the dignity is
Orders given by the eourt:”are -to beioilllowedi and
they are meant followed ~-if anyhody tries
to take law into to act in
breach of _the_. order”i’ntentiorially’.arid’lt>urposefuylly
know’ing§;: or:c:lerl;_ ljullyl “he has to be
Order 39, Rule
2;” isto ‘be…n’laintained and if any
f2_ers._on of majesty of law. definitely
helhas “severe hands. The purpose
of Order”39V,V is to prevent breach of the
orders oi; the_§_Z_ot:rt, and disobedience of the orders
Cotirt. This has got nothing to do with final
the case. Final decision of the Case
it on a separate footing. But, when Court
“ordered parties to maintain status quo and
lldireeted the parties not to alienate the suit
ll property in any manner, if sueh at ease is made out
A and established, the duty of the Court of law is to
see that said breach is punished and is not
repeated. So, finally what is the decision of the
suit is a dilierent niatter, but Court has to consider
the suit separately and the application . A’
that the defendant had comrnitted breach offthelll
lfljul/1(,’iiOI1 order that has i0~be_de:%ided’ .l;’ll€:::~:
basis of the evidence led in under Cvrderd Ad
2–JA applicailon. These two have in be 1;al%i.en”i<3 be
two disiiinei: pr0eeedirig:é';..eb NO V :1Qub£;,""'thé
application undeif__ Order 2-Ahis .n_1ad_e5 in a
suit to the that 3. .pda:i-yd"restrained has
eomrniiiiied breach AV :1 erd-edlrv; that is a
separaie l13ae.x nothing to do
with ofilhe. ufinally decided. In
suppeifii a'nd"View as mentioned
ab'dVe., f:.;i"efe'r . in 'the' 'folldwing observations of
l{Qni.b'1e.l\/lrdudsitiee._C;P.'Mathur of Allahabad High
eemii' in i.hedease Chand Jain, supra:
Qpvinidcinfldhe mere fact that an order
_dA'v-Jas hear the miscellaneous Cases
éilsiiig with the main suit would not mean that
lm.iek.:ellane0us eases should be decided en
dthej__haSis oi' the evidence which had been
"*–VA&:~ec:'erded in the main suit and by the same
hrder. A proceeding under Order 39, Rule 2-
A. CPC initiated on the ground ef
disobedience or breach of injunction order, is
in {he naiure of a criminal proceeding as the
persesen El§{£1lI1Sl, whom such proceeding is
iniiiiaied is liable in be detained in prisen if it
is found that he had committed breach' » Al
in_iunci.ion order. Since a punishrne_ntf_is
imposed and a person is sent
principle on which these
decided are entirely pdifferent; He-rleilvlthe it
principle of criminal "apply, l
plaintiff will have top_..elsl'tvablish
shadow of douht that}; the-.__d.Vetendants had
COII}I'l1lUL,€(Ll disobedience of the
injL1r1.ctii.on.._orqlelr"Te§'en_::"the had full
l<n'o_xxl.lVed§§e:'._V_oiT sa_rne&–.V it burden of
"suchjv cases lies entirely
ll pla:if§Arii;i,i"l'.*.,f:I'l'1e priiicilple on which a civil
suit -different as here decision
"wv;'1"E/hfif of pleadings is taken
_ V onlijhel of preponderance of evidence."
A.£"iieg5"giving anxious consideration to the submission
Counsel for the appellants and as W€ll as
respondlentslland also on going through the aforesaid decisions,
xthiis–.Coulri, is of the opinion that the impugned order is required
to 'beset aside, The matter should be referred back to the court
l " -below for fresh eonsideration wit,h a specific direction that the
court bel<;)w if necessary should rehear the plaintiffs and
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defericlarits aiirl after giving them S1;fl.iCi€I1lif'{)}3’p<§i'l}ti3;1il;}( shall.
dispose of IA l6 on merits taking irivto eon'sitieratio_n"=:1Vthe
evidence which is already record-e__d ariéie.at?ailabl'e1:iI1«.file.
9. Furtlier, it is the original suit is
dismissed and restoratiorivofithlellsan*ielV.is~:4._p;ti’der consideration
in misoellarieous’~tir:)Cet?_dir;gs: JL1\\(‘3:~.,”g’,’:”v;Zf.YV1′.§i’v:lVi’i’7£7ill not Come in the
way Of court hearing the Parties on
IA. 16 it is”‘a”totally separate and distinct
issue below, which directly refers to
fI1EllI1t€il11lIi’g~,'(:V{“j’g’;I1i”E!jy7-_ de_e’oriilm and majesty of the court.
of the foregoing, the appeal filed by appellants
his aforesaid observations and with a direction
thatthe i,e1_l,lOfl in [A916 should be reheard and disposed of
‘V..,within” 601- days irom 1.7.2011. The aforesaid date is fixed in
fireseorte of counsel appearing for plaintiffs, appellants
hereiri and aisrfi respondents, defendants in the Court below so
as to prevent any delay that may arise in issue of notice to
parties since original suit is dismissed and the same is pending
Ci)l”kSiC§€’.f€:l,l{)ll in the aforesaiei miseellarieous proceedings.
ea/is”;
E
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Both the is/21rm:>d Counsel are directed to inforrri”–f;heif=pV3rfi€s:ted
mak€: I1€{‘,€SS.’:1£’:y’ arrangexnants fog’ their «_a;ppeara”n_ceV ‘th ‘r01igh i
c0un$€-I an 1.712011 in disposed
file of V AddLCity cm: Court, 13, “Ba;:ga1¢yé”*a}§d”tE; assist
the Court below in dispuging g–i”‘ii1é:’seiid_ mattér”-within 60 days
from the said date.