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Dhaneswar Karji Vs. Umesh Chandra Choudhury and ors. - Court Judgment

LegalCrystal Citation
Subject;Civil
CourtGuwahati High Court
Decided On
Case NumberCivil Revn. No. 32 of 1984
Judge
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115
AppellantDhaneswar Karji
RespondentUmesh Chandra Choudhury and ors.
Advocates:P.G. Baruah and D. Goswami, Advs.
Prior history
T.S. Misra, C.J.
1. The facts giving rise to this revision petition are these. The petitioner has filed a Title Suit No. 318 of 1983 in the Court of Sadar Munsiff, Gauhati for declaration and permanent injunction maintaining that they are the shareholders and duly elected members of the Executive Committee of Pub-Barigog Gaon Panchayat Samabai Samity, hereinafter referred to as 'the Samity'. An application for interim injunction was also filed along with the suit. The learned Munsiff granted a
Excerpt:
- - the court below has to keep in view this salutory principle well-settled by the various decisions of the supreme court as also of high courts. a revision would lie if it appears that the subordinate court has exercised its jurisdiction not vested in it by law or has failed to exercise jurisdiction so vested or has acted in the exercise of the jurisdiction illegally or with material irregularity......was passed fixing 25th jan., 1984 for hearing the stay matter. incidentally on 25th jan., 1984 the stay application could not be considered because an application for adjournment was filed which was allowed. the court below has now fixed 2nd mar. 1984 for hearing the stay application as also the original appeal. in the meantime the assistant registrar of the co-operative societies, gauhati asked the secretary of the samity to convene the meeting of the ad hoc board mentioning therein that there was no injunction from any court restraining the opposite parties from functioning. the petitioner then filed an application in the . appellate court below praying that the operation of the stay order granted on 12th jan., 1984 be continued till the disposal of the appeal. the court below has not.....
Judgment:

T.S. Misra, C.J.

1. The facts giving rise to this revision petition are these. The petitioner has filed a Title Suit No. 318 of 1983 in the Court of Sadar Munsiff, Gauhati for declaration and permanent injunction maintaining that they are the shareholders and duly elected members of the Executive Committee of Pub-Barigog Gaon Panchayat Samabai Samity, hereinafter referred to as 'the Samity'. An application for interim injunction was also filed along with the suit. The learned Munsiff granted an ex parte injunction which was subsequently vacated by him. The petitioner then preferred an appeal in the Court of the Assistant District Judge No. 1, Gauhati and filed an application for interim injunction. The appellate Court below stayed the operation of the impugned order till 22nd Jan., 1984. It seems that the case could not be taken up on 22nd Jan., 1984, because it was Sunday and the Courts were closed. Hence the record was placed before the appellate Court below on 23rd Jan., 1984 whereupon an order was passed fixing 25th Jan., 1984 for hearing the stay matter. Incidentally on 25th Jan., 1984 the stay application could not be considered because an application for adjournment was filed which was allowed. The Court below has now fixed 2nd Mar. 1984 for hearing the stay application as also the original appeal. In the meantime the Assistant Registrar of the Co-operative Societies, Gauhati asked the Secretary of the Samity to convene the meeting of the Ad hoc Board mentioning therein that there was no injunction from any Court restraining the opposite parties from functioning. The petitioner then filed an application in the . appellate Court below praying that the operation of the stay order granted on 12th Jan., 1984 be continued till the disposal of the appeal. The Court below has not passed any interim order on that application. The petitioner therefore has approached this Court by means of this petition for the interim relief as also for revising the order of stay by extending it till the date of hearing of the appeal. I have heard the learned counsel for the petitioner.

2. The petitioner has not sought for the quashing of any order. In fact no order has yet been passed against him. His application for grant of stay is yet pending before the Court below. No doubt the court below has not passed any order in spite of a request made by the petitioner and has fixed 2nd Mar. 1984 for the hearing of the stay application. The learned counsel for the petitioner says that if no order is passed by the Court below the appeal filed by the petitioner would become infructuous and he would suffer irreparable injury. He, therefore, contends that in the circumstances of the case the Court below should have passed an interim order and as the same has not been done, this court should intervene. In support of his contention the learned counsel for the petitioner has placed reliance on a decision of the Supreme Court in Mool Chand Yadav v. Raza Buland Sugar Co. Ltd., Rampur (1982) 3 SCC 484, wherein it was observed that judicial approach requires that during the pendency of the appeal the operation of an order having serious civil consequences must be suspended and more so when appeal is admitted. In that case an appeal was preferred in the Allahabad High Court and notice of motion was taken out for suspension of the order under appeal. But the Division Bench declined to grant stay. Hence, an appeal by special leave was filed before the Supreme Court.

3. In the case in hand an appeal has no doubt been filed from the impugned order with an application for stay and the Court had granted a time-bound stay but thereafter no order was passed extending the operation of the stay order. The petitoner therefore moved the Court below for extension of the operation of that order. Incidentally that application is still pending consideration and no order has been passed so far on it. The case Mool Chahd Yadav (supra) is therefore distinguishable. Anyway, it has to be taken note of that if the appellate Court finds that on the facts and circumstances of a particular case irreparable injury would be caused to the appellant and serious civil consequences shall follow if the injunction is not granted, the injunction may be granted. The Court below has to keep in view this salutory principle well-settled by the various decisions of the Supreme Court as also of High Courts.

4. The petitioner has, however, filed the instant petition under Section 115 of the Civil P.C. A revision would lie if it appears that the subordinate Court has exercised its jurisdiction not vested in it by law or has failed to exercise jurisdiction so vested or has acted in the exercise of the jurisdiction illegally or with material irregularity. The petitioner's application for grant of stay has not yet been disposed of. The Court below had granted a time-bound stay order. Thereafter no order has been passed extending the period, though an application in that behalf has been filed and is still pending before it. The Court below should have passed some order on this application in accordance with law. To keep an application pending for an indefinite period and not passing any order on the application for expeditious disposal of the stay application itself tantamount to not exercising the jurisdiction. In these circumstances it would be a fit case for a direction to the Court below to take up the application moved by the petitioner for the grant of stay expeditiously and to pass an order on it on merits and in accordance with law. I refrain from making any observation on the merits of that application. The learned counsel for the petitioner had rightly not made any submission on the merits of that application. After all that application has to be considered by Cpurt below on merits after hearing the learned counsel. The application for revision cannot, however, be allowed because no order is sought to be set aside. However, a direction is needed to be given to the Court below. The Assistant District Judge No. 1, is therefore, directed to pass an order on the application for interim relief which the petitioner had filed before it in the Misc. Appeal No. 5 of 1984 within seven days from today. In the meantime in the interest of justice the operation of the order which has been impugned before the appellate Court shall remain suspended till 13th Feb., 1984.

5. With this observation the petition is disposed of. The Misc. Application is also disposed of.

6. A copy of the operative portion of this order may be supplied to the learned counsel for the petitioner on payment of requisite charges.


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