BOLLA PERAYYA Vs. BOLLA VENKATA RAO

JUDGEMENT

(1.) PETITIONERS are defendants in OS No. 793 of 2003,1 on the file of the court of Principal Junior Civil Judge, narsapur, filed by respondents (hereafter, plaintiffs) for permanent injunction as well as mandatory injunction. Along with the suit, plaintiffs filed IA No. 1739 of 1999 for ad interim injunction. Ex. parte injunction order was granted and the same was subsequently made absolute. Alleging that injunction order has been flouted, plaintiffs moved an application under Order XXXIX rule 2a of Code of Civil Procedure, 1908 (CPC) being IA No. 405a of 2004. The same is under enquiry. In the mean while, suit was coming up for trial. Defendants, therefore, filed IA No. 678 of 2006 praying trial Court to record common evidence in the suit as well as IA No. 405a of 2004. By impugned order dated 21. 3. 2009, trial Court dismissed application taking the view that when once the suit is concluded the Court become functus officio and it cannot take up the application for contempt.

(2.) LEARNED Counsel for petitioners relies on paragraphs 28 and 29 of the decision of Supreme Court in Tayabhai M. Baeasarwalla v. Hind Rubber Industries pvt. Ltd. , AIR 1997 SC 1240 = 1997 (2)ALD (SCSN) 47, and submits that trial court would not become functus officio even after disposal of suit and, therefore, no prejudice would be caused if evidence is recorded in IA as well as in the suit. Per contra, learned Counsel for respondents relies on Mohd. Jamal v. Mohd. Sharfuddin (died) per LRs. , 1998 (3) ALD 427 = 1998 (3) ALT 397 and Gyan Chand jain v. XIII Additional District and sessions Judge, AIR 1998 All. 228 and submits that in a suit for injunction or for any other purpose, when an interlocutory application is filed alleging contempt or disobedience of interlocutory order, trial Court has to decide contempt application first before taking up the suit.

(3.) THE view of learned Junior Civil judge that the Court would become functus officio when once the suit is concluded, is contrary to the law laid down by the supreme Court in Tayabhai M. Bagasarwalla's case (supra ). Therein, the supreme Court laid down as follows: it is not possible to agree with any of these submissions not only on principle but also in the light of the specific provision contained in Section 9-A of Code of Civil procedure (Maharashtra Amendment ). In the light of the said provision, it would not be right to say that the Civil Court had no jurisdiction to pass interim orders or interim injunction, as the case may be, pending decision on the question of jurisdiction. The orders made were within the jurisdiction of the Court and once this is so, they have to be obeyed and implemented. It is not as if the defendants are being sought to be punished for violations committed after the decision of the High court on the question of jurisdiction of the civil Court. Here the defendants are sought to be punished for the disobedience and violation of the order of injunction committed before the decision of the High Court in vishanji Virji Mepani, (AIR 1996 Bom. 367 ). According to Section 9-A, the Civil Court and the High Court-did not have the power to pass interim orders until that decision. If they had that power they must also have the power to enforce them. In the light of the said provision, it cannot also be held that those orders could be enforced only till the said decision but not thereafter. The said decision does not render them (the interim orders passed meanwhile) either non est or without jurisdiction. Punishing the defendants for violation of the said orders committed before the said decision (Vishanji virji Mepani) does not amount, in any event, to enforcing them after the said decision. Only the orders are being passed now. The violations are those committed before the said decision. The correct principle, therefore, is the one recognized and reiterated in Section 9-A to wit, where an objection to jurisdiction of a civil Court is raised to entertain a suit and to pass any interim orders therein, the Court should decide the question of jurisdiction in the first instance but that does not mean that pending the decision on the question of jurisdiction, the Court has no jurisdiction to pass interim orders as may be called for in the facts and circumstances of the case. A mere objection to jurisdiction does not instantly disable the Court from passing any interim orders. It can yet pass appropriate orders. At the same time, it should also decide the question of jurisdiction at the earliest possible time. The interim orders so passed are orders within jurisdiction when passed and effective till the Court decides that it has no jurisdiction to entertain the suit. These interim orders undoubtedly come to an end when the decision that this Court had no jurisdiction. It is open to the Court to modify these orders while holding that it has no jurisdiction to try the suit. Indeed, in certain situations, it would be its duty to modify such orders or make appropriate directions. For example, take a case where a party has been dispossessed from the suit property by appointing a receiver or otherwise, in such a case the Court should, while holding that it has no jurisdiction to entertain the suit, must put back the party in the position he was on the date of suit. But this power or obligation has nothing to do with the proposition that while in force, these orders have to be obeyed and their violation can be punished even after the question of jurisdiction is decided against the plaintiff provided the violation is committed before the decision of the Court on the question of jurisdiction.