2010(3) ALL MR 883


Vasant Raghobaji Talekar Vs. Shri. Natwarlal Rantansi Thakkar

Writ Petition No.17 of 2003

28th January, 2010

Petitioner Counsel: Shri. H. A. DESHPANDE

Civil P.C. (1908), S.104(1)(h), O.39, R.2-A and O.43, R.1 - Appeal against order detaining a person in civil prison - Held, appeal is tenable and the District Judge should have heard it. 1993(II) Mh.L.J. 1435 - Ref. to. (Para 3)

Cases Cited:
Harivilas Vs. Viraf, 1993(II) Mh.L.J. 1435 [Para 3,6]


JUDGMENT :- This petition is directed against judgment of the learned District Judge, Nagpur dismissing the petitioner's appeal against an order of detention in civil prison passed by the learned Civil Judge, Junior Division, Umred under Order 39, Rule 2-A of the Code of Civil Procedure. The learned District Judge held that entry (r) under Order 43, Rule 1 of the Code of Civil Procedure, as applicable to the State of Maharashtra, enumerates, an order under Rule 1, 2, 4, 10 or 11 of Order 39, but it does not include Rule 2-A. Rule 2-A is, however, included in the amended Code of Civil Procedure, but because of the Bombay Amendment, according to the learned District Judge, an appeal against order passed under Order 39, Rule 2-A would not be tenable.

2. I have heard learned counsel for the petitioner, but did not have benefit of hearing learned counsel for the respondent who was not available though the matter was adjourned once.

3. The learned counsel for the petitioner submitted that this Court had considered the question of tenability of such an appeal in a judgment in Harivilas Vs. Viraf, reported at 1993(II) Mh.L.J. 1435. This Court had noted the omission of Rule 2-A in entry (r) under Order 43, Rule 1, but held that this omission is insignificant in view of the fact that an appeal against order detaining a person in civil prison is specifically provided for under Section 104(1)(h) of the Code, which reads as under :

"104. 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;"

In view of this specific provision there can be no doubt that the appeal is tenable and the learned District Judge should have heard it.

4. In view of this, the petition is allowed. Impugned order is quashed and set aside. The appeal is restored to the file of the learned District Judge, who shall hear it and decide it on merits.

5. Till disposal of the appeal, interim orders passed by this Court shall remain in force.

6. In order to avoid confusion that has occurred on account of absence of reference to Rule 2-A in Entry (r) in Order 43, Rule 1 the Registry shall place the judgment of this Court, reported at 1993(II) Mh.L.J. 1435 (Harivilas Vs. Viraf) before the appropriate committee for considering the amendment to the said Rule.

Petition allowed.