Court No. - 19
Case :- MATTERS UNDER ARTICLE 227 No. - 1206 of 2018 Petitioner :- Kalpana Yadav Respondent :- Vijay Laxmi Counsel for Petitioner :- Rama Goel Bansal Counsel for Respondent :- Sanjay Agrawal Hon'ble Manoj Kumar Gupta,J.
Misc. Appeal No.62 of 2011 was filed by the petitioner challenging order of the trial court rejecting application under Order 39 Rules 1 and 2 CPC. The appellate court allowed the appeal and directed the parties to maintain status quo. The defendant-respondent filed an application before the trial court under Order 39 Rule 2-A CPC which was registered as Misc. Case No.24 of 2017. The petitioner filed objection to the maintainability of application under Order 39 Rule 2-A CPC before the trial court, wherein it was alleged that the order of the appellate court was being violated. By impugned order, the trial court has overruled the objection and the said order has been affirmed by the revisional court. Aggrieved thereby, the instant petition has been filed.
Counsel for the petitioner submitted that application under Order 39 Rule 2-A CPC would lie before the court which granted the injunction or to any court to which the suit or the proceedings are transferred. It is urged that since the order of status quo was passed in appeal and, therefore, it is only the appellate court which had jurisdiction to entertain the application under Order 39 Rule 2-A CPC.
Counsel for the respondent submitted that since after decision in appeal, the matter is pending before the trial court, so the application was rightly filed before the trial court.
Order 39 Rule 2-A interalia provides as under:-
"2A. 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 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 or 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."
A bare perusal of the said provision reveals that application under Order 39 Rule 2-A CPC would lie before the court granting the injunction or making the order or the court to which the suit or proceeding is transferred. In the instant case, admittedly the injunction was granted by the appellate court while deciding the appeal finally. The proceedings in appeal terminated with the decision of the appeal. The trial court is not the transferee court in so far as the proceedings of appeal are concerned. The application under Order 39 Rule 2-A was, therefore, not maintainable before the trial court.
Accordingly, the impugned orders are set aside. The petition is allowed. The application filed by the respondent before the trial court shall stand rejected.
(Manoj Kumar Gupta, J) Order Date :- 26.2.2018 SL