KBP 6005-09.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6005 OF 2009 Jagdish S. Shetty ..Petitioner Vs. The Municipal Corporation of Greater Bombay and ors. ..Respondents ......... Mr.D.C.Shah, for petitioner. Mr.M.M.Malvankar, for respondent no.1. Mr.Manoj Upadhay, for respondent no.2. ......... CORAM : A.S.OKA, J.. DATE : 10 th August, 2009. P.C. : 1] Rule. Advocates appearing for the respondents waive service. Considering the narrow controversy involved, the writ petition is taken for final disposal at the stage of admission. 2] Petitioner is the original plaintiff. On 31 st March, 2009, a decree of declaration and injunction has been passed in favour of petitioner. A first appeal has been preferred against the said decree by first respondent – Municipal Corporation and the said first appeal is pending in this court for admission. A notice of motion was taken out by petitioner – plaintiff to which the respondent Nos.3 to 8 were impleaded as contemnors. The action was sought against them for allegedly committing breach of decree of perpetual injunction passed in the suit. Prayer clause “b” of the notice of motion shows that the prayer was made for taking action under Rule 2-A Order XXXIX of the Code of Civil Procedure, 1908 as well as under the Contempt of Courts Act, 1971. The learned counsel appearing for the petitioner has stated that KBP 6005-09.sxw 2 the petitioner sought action only against the 3 rd to 8 th respondents in the contempt notice of motion. By the impugned order the said notice of motion had been dismissed on the ground that Rule 2-A of Order XXXIX of the said code was not applicable. There is no adjudication made on merits of the said notice of motion. The learned Judge also observed that an appeal preferred by the Municipal Corporation against the decree is pending in this Court. 3] I have considered the submissions. The allegations made by the petitioner in the notice of motion was that in breach of decree of perpetual injunction, certain action was taken by comtemnors. It is an admitted position that as on today the decree of perpetual injunction is operating and there is no stay granted by this court in the first appeal. It is true that the action could not have been initiated under Rule 2-A of Order XXXIX of the said code as what is alleged is the breach of final decree of perpetual injunction. However the trial court has ignored that the action was sought under the Contempt of Courts Act, 1971. The trial court has no power to take cognizance of the contempt under the said Act of 1971 and to punish the contemnors. However, if the trial court was of the view that a prima facie case of contempt is made out, the trial court could have made a reference to this court as contemplated by clause (d) of Rule 5 of the Contempt of Courts (Bombay High Court) Rules, 1994. This aspect has been completely overlooked by the trial court. Therefore, the case made out by the petitioner ought to have been considered by the trial court on merits. The trial court observed that the appeal preferred by the first respondent-Corporation was pending in this court. However, as on today, there is no stay operating to the decree. Therefore, the pendency of appeal was not a ground on which contempt notice of motion could have rejected. Hence, I pass the following order: KBP 6005-09.sxw 3 (a) The impugned judgment and order dated 8 th July, 2009 is quashed and set aside and the notice of motion is restored to the file of trial court. (b) The trial court shall consider and decide whether a case is made out for making a reference to this court as contemplated by Rule 5 of the Contempt of Courts (Bombay High Court) Rules, 1994. The trial court shall consider the case only as against the contemnors i.e. the third to eight respondents. (c) It is made clear that no action can be initiated under Rule 2A of the Order XXXIX of the Code of Civil Procedure, 1908. (d) All contentions of the parties are expressly kept open. (e) Notice of motion shall be heard and decided as expeditiously as possible. ( A.S.OKA, J. )