1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.453/2011 Smt. Durva Guru Pagi alias Kamal Duklo Pagi, wife of Guru Pagi and d/o Dukle Pagi, 41 years of age, r/o.H.No.6/443, Kindlebag, Tarir, Canacona, Goa. .. Petitioner (Orig. defendant/ respondent.) V e r s u s Shri Guru @ Durganand Pagi Son of Kushali Pagi, 41 years Old, Married, service, R/o. H.No.442, Talpona, Sadolxem, Canacona, Goa. .. Respondent (Orig. Plaintiff/ Appellant) Mr. A. F. Diniz, Advocate for the petitioner. Mr. Shivan Dessai, Advocate for the respondent. CORAM : A. P. LAVANDE, J. DATE :- 30 th August, 2011. ORAL JUDGMENT : Heard Mr. Diniz, learned Counsel for the petitioner and Mr. Dessai, learned Counsel for the respondent. Rule. By consent, heard forthwith. 2. By this petition under Article 227 of the Constitution of India, the petitioner has challenged the order 2 dated 4th December, 2010 passed by the District Judge-2, South Goa, Margao in Miscellaneous Civil Appeal No.95/2010 by which the lower appellate Court has set aside the order dated 27th August, 2010 passed by the 1st Additional Civil Judge, Senior Division, Margao on application for temporary injunction filed by the plaintiff in Marriage Petition No.18/2010/I. 3. The respondent filed Marriage Petition No.18/2010/I before the Ist Additional Civil Judge, Senior Division, Margao. Along with the application, the plaintiff sought temporary injunction restraining the respondent in the said petition (the petitioner herein) from proceeding with the Maintenance Application No.1/M/2010 and Criminal Case No.104/OA/PWDV/09 pending before the Judicial Magistrate, First Class, Canacona. The proceedings which were sought to stayed were filed by the petitioner herein under Section 125 of Cr.P.C. claiming maintenance and under Section 12 of Protection of Women from Domestic Violence Act, 2005. The trial Court by order dated 27th August, 2010 dismissed the application on the ground that the relief was not available in terms of Section 41(d) of Specific Relief Act, 1963. The trial Court further held that the petitioner had not made out factors required for grant of injunction and consequently, 3 dismissed the application. The lower appellate Court set aside the order primarily on the ground that a prima facie case of fraud is made out which discloses that the petitioner had not disclosed her correct age to the respondent at the time of wedlock. The trial Court further held that presently, the petitioner herein is not residing in the house of the respondent. The lower appellate Court set aside the findings of the trial Court. The lower appellate Court further held that the respondent would suffer irreparable injury if temporary injunction is not granted and consequently, set aside the order passed by the trial Court. 4. Mr. Diniz, learned Counsel appearing for the petitioner placing reliance upon Section 41 of Specific Relief Act has submitted that in terms thereof, the lower appellate Court was not entitled to grant injunction restraining the petitioner from prosecuting the proceedings under Section 125 of Cr.P.C. and under Section 12 of the Protection of Women from Domestic Violence Act since the criminal Court – the Court of Judicial Magistrate, First Class is not subordinate to Civil Court or for that matter District Court since hierarchy of Civil and Criminal Courts is entirely different. Mr. Diniz placed reliance upon the judgment of the Apex Court in the case of Cotton Corporation of India Ltd. Vs. United Industrial 4 Bank Limited and others; AIR 1983 SC 1272 and submitted that ordinarily an injunction prohibiting the party from instituting or prosecuting any proceedings ought not to be granted. Such an injunction can be granted with a view to regulating the proceedings before the subordinate Courts. Learned Counsel, therefore, submitted that the impugned order passed by the lower appellate Court is totally unsustainable in law and deserves to be quashed and set aside. 5. Per contra, Mr. Dessai, learned Counsel for the respondent submitted that in terms of Section 41 of Specific Relief Act there is no absolute bar on the Court to restrain a party from prosecuting the proceedings before the appropriate Court/ Magistrate and in the given case, the such an order can be passed by the Civil Court. In support of his submission, Mr. Dessai placed reliance upon the following judgment : (i) Laxman Bala Surve and Others Vs. M/s. Pesh Builders; 1998(3) BCR 755. 6. I have considered the rival submissions, perused the record and the judgments relied upon. 5 7. The short question which arises for consideration is whether the lower appellate Court was justified in reversing the order passed by the trial Court. 8. The relevant clauses of Section 41 of the Specific Relief Act read thus : 41. Injunction when refused. - An injunction cannot be granted - (a) to restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings. (b) to restrain any person from instituting or prosecuting any proceeding in a court not subordinate to that from which the injunction is sought; (d) to restrain any person from instituting or prosecuting any proceeding in a criminal matter; 9. From perusal of the above provisions, and in view of the ratio laid down by the Apex Court in the case of Cotton 6 Corporation of Indian Ltd.(supra), it can be taken as settled law that ordinarily the injunctive relief restraining a person from prosecuting any proceedings cannot be granted by the Court except for any larger public interest and superior Court can injunct a person from instituting or prosecuting an action in a subordinate Court with a view to regulating the proceedings before the subordinate Courts. In the present case, by the impugned order the lower appellate Court has injuncted the petitioner from prosecuting proceedings before the Judicial Magistrate, First Class filed by the petitioner under Section 125 of Cr.P.C. and under Section 12 of Protection of Women from Domestic Violence Act. Although the proceedings under Section 125 are not strictly criminal in nature, yet jurisdiction under Section 125 of Cr.P.C. is exercised by the Judicial Magistrate, First Class, who cannot be termed as subordinate to Civil Court or for that matter District Court for the purpose of Section 41 of Specific Relief Act. On this ground alone, the impugned order is unsustainable in law and deserves to quashed and set aside. Moreover, considering the factual and legal position, the lower appellate Court was not justified in reversing a well reasoned order passed by the trial Court, in breach of Section 41 of The Specific Relief Act. 7 10. In so far as the authority cited by Mr. Dessai is concerned, there can be no dispute on the proposition laid down thereunder. However, having regard to the factual situation in both the cases, the same does not advance the case of the respondent. It is well settled law that each case has to be decided on the factual matrix of the particular case. 11. In view of the above discussion, I am of the considered opinion that the order passed by the lower appellate Court is unsustainable in law. Consequently, the impugned order dated 4th December, 2010 passed by the District Judge-2, South Goa, Margao in Miscellaneous Civil Appeal No.95/2010 is quashed and set aside. Parties to bear their own costs. Needless to mention that the respondent herein will be entitled to raise all the contentions available in law in the proceedings initiated against him. A. P. LAVANDE, J. SMA