IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 01ST DAY OF APRIL, 2019 BEFORE THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR CIVIL REVISION PETITION NO.239 OF 2015 (M) BETWEEN:
ACHUTHANANDA REDDY, ADULT BY AGE, THE POLLING OFFICER OF THE BOWRING INSTITUTE, BOWRING INSTITUTE, NO.19, ST.MARKS ROAD, BENGALURU-1. …PETITIONER (BY SRI.MANIAN K.B.S, ADVOCATE) AND:
MOHAN A.M, S/O LATE MUNIYAPPA, AGED ABOUT 66 YEARS, MEMBERSHIP NO.PM 211, BOWRING INSTITUTE, NO.19, ST.MARKS ROAD, BENGALURU-1. ...RESPONDENT (BY SRI.MOHAN A.M, ADVOCATE) **** THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF CPC., AGAINST THE ORDER DATED 17.03.2015 PASSED IN MISC.NO.251662/2012 ON THE FILE OF THE IV ADDL. CITY CIVIL AND SESSIONS JUDGE, MAYO HALL UNIT, BENGALURU (CCH 21), ORDERED THAT PETITION FILED UNDER ORDER XXXIX RULE 2(a) IS MAINTAINABLE AND IT REQUIRES ENQUIRY FOR FINAL DISPOSAL ON MERITS.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Though this petition is coming on for admission, heard the learned counsel for the petitioner on merits of the case. The respondents are unrepresented.
2. The petitioner is before this Court for setting aside the impugned order dated 17.3.2015 in Miscellaneous Case No.25162/2012 (in respect of the order passed in O.S. No.26066/2012).
3. The facts briefly stated are that the petitioner herein was the defendant in O.S. No.26066/2012 which was a suit for bare injunction pending before the IV Additional City Civil Court, Bengaluru. In the said suit interim orders were passed on 01.06.2012 restraining defendant Nos.1 to 18 from contesting the election to the post of office bearer/Managing Committee for the year 2012-13 to Bowring Institute, St. Marks Road, Bengaluru. Thereafter the plaintiff filed a memo for dismissal of the suit on 05.06.2012. In pursuance of the said memo the suit was dismissed.
4. The plaintiff filed a Miscellaneous No.25162/2012 under Order XXXIX Rule 2 (A) of CPC for violation and disobedience and breach of the order dated 01.06.2012. The learned I Appellate Court held that the petition filed under Order XXXIX Rule 2A is maintainable and requires final enquiry. Being aggrieved by the said order the petitioner has preferred the revision petition.
5. The counsel for the petitioner relying on the decision reported in 2012 (4) SCC 307 (Kanwar Singh Saini vs. High Court of Delhi) and has submitted that when the suit itself is withdrawn as per the memo filed by the counsel for the plaintiff. The application filed under Order XXXIX Rule 2 A (Miscellaneous No.25162/2012) was not maintainable. Thus the impugned order passed in Miscellaneous petition deserves tobe set aside.
6. Order XXXIX Rule 2 (A) reads as under: “ Consequence of disobedience or breach of injunction (1) In the case of disobedience of any injunction granted or other order made under rule 1 or rule 2 or breach of any of the terms on which the injunction was granted or the order made, the Court granting the injunction or making the order, or any Court to which the suit or proceeding is transferred, may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the Court directs his release.
(2) No attachment made under this rule shall remain in force for more than one year, at the end of which time if the disobedience or breach continues, the property attached may be sold and out of the proceeds, the Court may award such compensation as it thinks fit to the injured party and shall pay the balance, if any, to the party entitled thereto.”
7. In the aforesaid decision cited by the counsel for the petitioner the Hon’ble Supreme Court has observed as under:
“ An application under Order 39 Rule 2-A CPC lies only where disobedience/breach of an injunction granted or order complained of was one that is granted by the court under Order 39 Rules 1 and 2 CPC, which is naturally to enure during the pendency of the suit. However, once a suit is decreed or dismissed, the interim order, if any, merges into the final order and the court cannot entertain an application under Order 39 Rule 2 A. An application under Order 39 Rule 2 A is maintainable only during the pendency of the suit in case the interim order passed by the court or undertaking given by the party is violated. ”
8. In the instant case the suit in which the interim order dated 1.6.2012 was passed is dismissed in view of the memo filed by the counsel for the plaintiff. In view of the decision of the Hon’ble Supreme Court interim order always merges in the final order and where the case is dismissed interim order stands automatically nullified. Thus the petition under Order XXXIX Rule 2 A is not maintainable and no enquiry is necessary as observed by the trial Court. Thus the impugned order is not in accordance with law.
9. Accordingly, the petition is allowed. The impugned order dated 17.03.2015 in Misc. No.25162/2012 passed by the IV Additional City Civil and Sessions Judge at Mayohall Unit, Bengaluru (CCH 21) is set aside.
Sd/- JUDGE ykl