Civil Revision Application No.25 of 2002

21st February, 2003

Petitioner Counsel: Mr. SANTOSH DASTGIR, Mr. A. S. GOLEGAONKAR
Respondent Counsel: Mr. S. G. SANGLE

Cases Cited:
Dry Chillies Brokers' Association Vs. Dnyaneshwar Chamat, 1992 Mh.L.J. 1503 [Para 5,8,9]
Vitthal Shriram Kharbadkar Vs. Pandurang Irbhanji Kadu, 2002(2) ALL MR 826=2002(3) Mh.L.J. 448 [Para 8]
Harivilas Madhavprasad Ruia Vs. Viraf Ardeshir Udwadia, AIR 1994 Bombay 38 [Para 9]
Suresh Dutta Singh Vs. Randhir Singh, AIR 1958 Allahabad 641 [Para 10]

JUDGMENT

JUDGMENT :- Heard the learned Counsel appearing for the parties.

2. Rule. Rule returnable forthwith. Taken up for final hearing by consent of parties.

The learned Counsel appearing for the respondent waives service for the respondent.

3. The plaintiff/respondent herein instituted a suit for declaration and permanent injunction and in the said suit, an application for grant of temporary injunction was moved. The trial Court had granted temporary injunction. The plaintiff alleging breach of injunction order, filed an application under Order XXXIX Rule 2A of the Code of Civil Procedure , 1908, for taking action against the defendants for disobedience and breach of injunction. The trial Court allowed the said application filed by the plaintiff under Order XXXIX Rule 2A and directed the detention of defendant no.1 Sopan in civil prison for a period of 8 days.

4. Aggrieved by the order directing detention in civil prison, passed under Order XXXIX Rule 2A, dated 9-4-2001, an appeal came to be filed before the District Judge by the present petitioner against whom the order of detention in civil prison is passed. The IInd Additional District Judge, Parbhani, by the impugned order dated 6-11-2001 has dismissed the appeal as not maintainable and it is this order passed by the first appellate Court which is challenged in the instant revision application.

5. The question that falls for consideration is as to whether an appeal lies against an order directing detention in civil prison passed by the trial Court under Order XXXIX Rule 2A of C.P.C. The Additional District Judge placing reliance on a reported judgment in the case of Dry Chillies Brokers' Association and another Vs. Dnyaneshwar Chamat and others, reported in 1992 Mh.L.J. 1503, has held that the appeal is not maintainable. The IInd Additional District Judge, Parbhani, has held that the appeal is not maintainable as a result of Bombay Amendment to Order XLIII Rule 1(r) of C.P.C., which is introduced by the Bombay High Court Notification dated 5-9-1983.

6. The Code of Civil Procedure, 1908, came to be amended by the Central Act 104 of 1976 and Clause 'r' of Rule 1 of Order XLIII came to be amended by inserting "Rule 2A" whereby the order passed under Rule 2A of Order XXXIX became appealable. Subsequent thereto, in so far as State of Maharashtra is concerned, Clause 'r' came to be substituted by Bombay High Court Notification dated 5-9-1983, as under :-

"An order under Rule 1, Rule 2, Rule 4, Rule 10 or Rule 11 of Order XXXIX."

It is apparent that in this substituted Clause 'r', Rule 2A of Order XXXIX is not mentioned, though it was so inserted in Clause 'r' by Amending Act 104 of 1976, making thereby the order passed under Rule 2A of Order XXXIX appealable. No doubt, an order of detention in civil prison passed under Rule 2A of Order XXXIX is not included in the list of orders contained in Order XLIII, but that by itself will not be conclusive of not providing of an appeal against the said order.

7. The substantive provision which deals with appeals from orders is contained in Section 104 of C.P.C. Section 104(1)(h) reads thus :

"Orders from which appeal lies :

(1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders :

(ff)...........................

(ffa)..........................

(g)............................

(h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree;

(i)............................

Provided that no appeal shall lie against any order specified in clause (ff) save on the ground that no order, or an order for the payment of a less amount, ought to have been made."

A plain reading of Section 104(1)(h) leaves no iota of doubt that appeal against an order imposing a fine or directing the arrest or detention in the civil prison, is provided for, except where such arrest or detention is in execution of a decree. In the present case, the detention is for non-compliance of an order of temporary injunction and it is not a detention in execution of a decree. If this be the position, the order would be appealable under Section 104(1)(h) of C.P.C. In addition to the orders referred to in Section 104(1), appeal shall also lie from the orders enumerated in Order XLIII. The opening sentence of Order XLIII Rule 1 reads thus :-

"An appeal shall lie from the following orders under the provisions of Section 104, namely................."

So, appeal against an order enumerated in Order XLIII has to be filed under the substantive provision contained in Section 104 of C.P.C. Though Bombay Amendment to Order XLIII Rule 1(r) does not provide for an appeal against an order directing detention in civil prison, passed under Order XXXIX Rule 2A of C.P.C., that does not deprive a litigant of a right of appeal made available to him under Section 104(1)(h) of C.P.C.

8. The attention of the learned Judge who delivered the judgment reported in 1992 Mh.L.J. 1503 (supra) was not invited to the provisions of Section 104 of C.P.C. and, as such, the learned Judge has not dealt with the effect of Section 104(1)(h) in the matter of availability of an appellate remedy. The learned Single Judge (Shri.G.D. Patil, J.) has held that by virtue of non-inclusion of Rule 2A in the Bombay Amendment to Order XLIII Rule 1(r), the said order is not appealable. There is one more judgment of learned Single Judge of this Court (Coram : P.S. Bra:; [2002(2) ALL MR 826], in the case of Vitthal Shriram Kharbadkar Vs. Pandurang Irbhanji Kadu, taking a similar view, as is taken by the learned Single Judge (Shri.G.D. Patil, J.) in the case referred to hereinabove. Justice P.S. Brahme has also held that an order of detention passed by the trial Court under Order XXXIX Rule 2A of C.P.C. is not appealable in view of the Bombay Amendment. In this case, as well, the learned Judge (Shri.P.S. Brahme, J.) has not even referred to Section 104 of C.P.C. A careful reading of the judgment reveals that the question of law was answered on concession, as the legal position asserted by the Counsel for the petitioner was accepted by the Counsel for the respondent. The learned Counsel appearing for the petitioner submits that judgment rendered by Justice G.D. Patil and Justice P.S. Brahme, in the respective cases, referred to hereinabove, does not bind this Court as the said judgments are delivered in ignorance of provisions of Section 104 of C.P.C. and hence, the said judgments are per incuriam.

9. There is one more judgment of learned Single Judge of this Court (Coram : V.P. Tipnis, J.) reported in AIR 1994 Bombay 38, in the case of Harivilas Madhavprasad Ruia Vs. Viraf Ardeshir Udwadia and others, which takes a view that as an appeal is provided under the substantive provision of Section 104 of C.P.C. against an order of detention passed under Order XXXIX Rule 2A, appeal lies. The learned Single Judge had an occasion to consider the judgment rendered by Justice G.D. Patil, reported in 1992 Mh.L.J. 1503 (supra). It is observed, that in the entire body of the judgment, there is no reference to substantive provision of Section 104 of C.P.C. which specifically provides for appeal where the person is directed to be detained in the civil prison and as the said Section was not brought to the notice of the learned Judge, the Court proceeded to hold that no appeal lies in view of the Bombay Amendment.

10. A Division Bench of Allahabad High Court, in the case of Suresh Dutta Singh and another Vs. Randhir Singh and another, reported in AIR 1958 Allahabad 641, had an occasion to consider a similar question in view of an amendment to Rule 2 of Order XXXIX made by the Allahabad High Court inserting Section 2A in Order XXXIX. Though Section 2A was brought on the statute book in Allahabad, by a local amendment dated 15th September, 1941, which provided for detention of a person in civil prison for disobedience of the order of injunction, issued under Rule 1 or Rule 2, no corresponding amendment was effected in Order XLIII Rule 1(r). In the said situation, the Division Bench of Allahabad High Court has held that despite non-inclusion of Rule 2A in Order XLIII Rule 1(r), a right of appeal provided for, under Section 104 of C.P.C., was in tact.

11. It is relevant to note that the Bombay Amendment which substitutes Order XLIII Rule 1(r) was a simultaneous amendment effected when Rule 11 was introduced by an amendment in Order XXXIX. Rule 11 deals with procedure to be followed, on parties defying order of the Court or committing breach of undertaking to the Court. An order passed under Rule 11 has been made appealable specifically by inclusion of Rule 11 of Order XXXIX in Order XLIII Rule 1(r) of C.P.C. Both the amendments are by the same Notification.

12. After examining the matter from all angles, I am of the clear view that an order of detention of a person in civil prison passed under Order XXXIX Rule 2A of C.P.C. is appealable as the substantive provision of Section 104(1)(h) provides for an appeal against the said order. The right of appeal made available to the litigant by Section 104 would stand untrammeled by any fetters which may be found to exist by failure to include an order passed under Order XXXIX Rule 2A in Order XLIII Rule 1(r) of C.P.C.

13. In the result, Civil Revision Application is allowed. The order dated 6-11-2001 passed by the IInd Additional District Judge, Parbhani, in Miscellaneous Civil Appeal No.35/2001, is quashed and set aside. The matter is remanded back to the IInd Additional District Judge, Parbhani, for decision of the appeal on merits and in accordance with law.

During the pendency of the revision, the petitioner was protected by granting stay of the warrant issued by the trial Court, directing detention of the petitioner in civil prison. The stay order shall continue for a period of one month from today, during which time the petitioner is to move the Additional District Judge for seeking stay of the order passed by the trial Court.

14. Rule is made absolute in the above terms. In the circumstances of the case, there shall be no order as to costs.

Revision application allowed.