SRJ 1 wp-324-2010.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.324 OF 2010 Shri Anant Jairam Minde .. Petitioner vs. Shri Abdul Sattar Abdul Wahab Isane & Another .. Respondents. Mr. M.R.Katikar, for Petitioner. Mr. H.V.Bhadbhade, for Respondent No.1. Mr. Amit Borkar, Advocate appointed as Amicus Curiae. CORAM :A.S.OKA,J. DATE :1st APRIL,2010 P.C.:- 1] Heard learned counsel appearing for the parties. This Court had requested Mr. Amit Borkar, Advocate to assist this Court. I have heard his submission. 2] The Petitioner is the original Plaintiff. In the suit filed by the Petitioner, an order of temporary injunction was passed on 11th November, 2003. On 8th December, 2003 an application was made by the Petitioner under rule 2-A of Order XXXIX of Code of Civil Procedure, 1908 (hereinafter referred to as the said Code) alleging that the Respondents have committed breach of the order of temporary injunction. In the said application a prayer was also made for mandatory injunction and restoration of status quo ante. The Petitioner has filed his own SRJ 2 wp-324-2010.sxw affidavit in lieu of the examination-in-chief for the purpose of hearing of the said application at Exhibit 56 under Rule 2-A of Order XXXIX of the said Code. The Petitioner was cross examined by the Advocate for Respondents. Thereafter, two more witnesses were examined by filing their affidavits for the purposes of hearing of the said application at Exhibit 56.The cross examination of the of the said witnesses was recorded on 27th January, 2006. The Petitioner made an application at Exhibit 106 on 28th November, 2008. In the application, it was contended that it was necessary that the application at Exhibit 56 should be separately registered as a miscellaneous application. Therefore, a prayer was made that the application should be separately registered and the evidence adduced in support of the said application be treated as the evidence in the application which may be separately registered. By the impugned order dated 5th September, 2009, the learned Trial Judge rejected the application and observed that if the Petitioner so desires, he may file a separate application under Rule 2-A order XXXIX of the Code of Civil Procedure, 1908. The learned Trial Judge relied upon the decision of this Court in the case of Rampyaribai wd/o Sukhdeo Daga & Others vs. Niladevi wd/o Narayandas Jakhotiya (2007[4] Mah.L.J.213). The learned Trial Judge observed that as the evidence has already been adduced, the said application cannot be registered separately and it will be more convenient if the Petitioner makes a separate application under Rule 2-A SRJ 3 wp-324-2010.sxw Order XXXIX of the said Code. 3] The learned counsel appearing for the Petitioner submitted that the learned trial Judge ought to have registered the application at Exhibit 56 as a separate application. Shri Amit Borkar, learned counsel has invited my attention to the Judgment and Order dated 4th September, 2009 passed in Writ Petition No.1125 of 2009 (Santajee B. Modak vs. Kerujee G. Kawade & Ors.). He submitted that this Court has already held that the decision of this Court in case of Rampyaribai (Supra) does not lay down that every application under Rule 2-A Order XXXIX of the said Code is to be registered separately. He also placed reliance on a decision of this Court in the case of Kisanlal B. Vyas vs. Mohan Chandmal and Others (1971) BCI (0)11. He submitted that the relevant rule of the Civil Manual requiring a separate registration of such application is merely procedural provision. 4] The learned counsel appearing for the first Respondent submitted that evidence has already been adduced by the Petitioner in support of his application. He submitted that the learned Judge was right in holding that now at this stage, the application cannot be separately registered. SRJ 4 wp-324-2010.sxw 5] I have given careful consideration to the submissions. The learned Trial Judge has referred to the decision of this Court in the case of Rampyaribai (Supra). In paragraph 7, this Court held thus: 7 ..... I find that the proceedings under Order 39, Rule 2A of the Civil Procedure Code are absolutely independent proceedings. Whether there was breach of injunction or not is a question to be decided upon evidence and the said question has no relevance with the issues in the suit which are to be decided on merits of the suit. The eventuality of breach of injunction has occurred not at the time of filing of the suit but subsequent to the filing of the suit. The issues framed in the suit on merits of the suit cannot be mixed up with the trial of the application (Ex.37) for breach of injunction. The question whether the petitioners would be prejudiced or not is not relevant. What is relevant is the practice and procedure that is required to be adopted while deciding the suit and application for breach of injunction. As a matter of fact, in my opinion, the application for breach of injunction should be separately registered as Misc. Judicial case and should be tried by framing appropriate issues. Thus the proceedings for breach of injunctionhas absolutely nothing to do with the decision of the suit on merits. I fail to understand as to why the proceedings under Order 39, Rule 2A of Civil Procedure Code are not separately registered and separately tried by the learned trial Court. Thus, in the said decision, it appears that the reliance SRJ 5 wp-324-2010.sxw was placed by this Court on the procedural requirements incorporated in the Civil Manual. 6] My attention was invited to the decision of this Court in the case of Santajee B. Modak (supra) wherein this Court has dealt with the decision in the case of Rampyaribai (supra). Paragraph 4 of the said application reads thus:- 4 ...... The decision of this Court in the case of Rampyaribai (supra) cannot be read as a decision laying down a ratio that an application made by a party under Rule 2-A of Order XXXIX of the said Code in a pending suit cannot be considered on merits. If an application is made under Rule 2-A of Order XXXIX of the said Code in a pending suit alleging breach of interim order of injunction passed in the said suit, there is no prohibition against the Court considering such application on merits. The court has a discretion either to entertain and decide the application or to direct that the application shall be registered as a separate Misc. Application. Where an application is sought to be made in a suit fixed for final arguments, the trial court may exercise the discretion by directing the party to get the application converted into a Civil Misc. Application to ensure that the conclusion of the suit will not be delayed. The decision of this Court in the case of Rampyraribai (supra) does not prohibit the court from entertaining the application under Rule 2-A of the Order XXXIX of the said Code made in a pending suit. The judgment of this Court deals with purely a procedural requirement. Non compliance of the SRJ 6 wp-324-2010.sxw said requirement is never fatal. In the facts of the present case when the petitioner had already filed an affidavit in support of the application and even a court commissioner was appointed, there was no warrant for adopting such a hyper-technical approach. If the learned Judge was of the view that a separate application needs to be filed, he could have ordered conversion of the said application into a Misc. Application. 7] Chapter XIX of the Civil Manual incorporates a list of the miscellaneous proceedings requiring a separate judicial inquiry which do not form part of the proceedings in a suit and which are required to be registered as a separate proceedings. Apart from the fact that the proceedings of the application under Rule 2-A of the Order XXXIX are not included in the said list, the Civil Manual merely embodies the rules and instructions for the guidance of the Civil Courts as held by the Division Bench of this Court in the case of Kisanlal B. Vyas (supra). 8] The decision of this Court in the case of Rampyaribai (supra) does not prohibit a Court from entertaining application under Rule 2-A of the said Code in a pending suit or appeal. It is ultimately a discretion of the concerned Court whether to allow the applicant to file such application in the main proceedings or whether to direct registration of the said application as a separate Miscellaneous proceedings. In a given case, the SRJ 7 wp-324-2010.sxw order which may be made on said application, may be have serious consequences in as much as the action provided under Rule 11 of the Order XXXIX of the said Code may follow. If breach of any order is committed by the Defendant, under Rule 11 of the Order XXXIX of the said Code, the Court can strike out the defence of the defendant in the suit or the main proceedings. Therefore, depending upon the facts of the case , the Court will have to exercise discretion. 9] Therefore, as indicated earlier, the Court has discretion either to entertain such application in the main suit or to direct registration of the application as separate Miscellaneous civil application. 10] Now coming to the case in the hand, the application on which the impugned order has been passed was made by the Petitioner, after recording of cross examination of the three witnesses examined in support of application at Exhibit 56 was over. Perhaps, the Petitioner filed said application on the basis of the decision of this Court in the case of Rampyaribai (supra). 11] At the stage when three witnesses were already examined, the prayer made by the Petitioner for registration of the said application as a separate miscellaneous Application was rightly rejected. The reasons given by the learned Judge are far from being satisfactory. At the same time, it must be observed that there was no reason to permit the Petitioner to file a separate application. If learned Judge was of the view SRJ 8 wp-324-2010.sxw that the application at Exhibit 56 was required to be separately filed, he could have ordered the registration of the same application as a Miscellaneous application and could have read the evidence adduced in the said application as the evidence in the separate Application so registered. 12] In view of the aforesaid discussion, it is not possible to interfere with the impugned order. However, it is clarified that the application made by the Petitioner at Exhibit 56 is maintainable and the trial Court will have to decide the said application in accordance with the law. 13] Hence, I pass the following order:- (i) Petition is rejected; (ii) It is clarified that application of the Petitioner at Exhibit 56 is maintainable in law and the Trial Court will proceed to decide the application as early as possible. (A.S.OKA,J.)