Dismissed

Udaipur Development Authority v. Mangilal

Rajasthan HC16 Aug 2024CW/13386/2024

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition filed by the Udaipur Development Authority challenging an interim injunction and a notice under Section 151 CPC for contempt. The Court held that the writ petition regarding the notice for explanation was not maintainable as no final order was passed, and the petition was cravenly filed by the Development Authority instead of its individual officer.

What did the court decide?

The writ petition is dismissed; the stay application is dismissed; the Court refused to interfere in the trial court's order calling for explanation.

Udaipur Development Authority Vs Mangilal — Civil Procedure and Limitation | Rajasthan HC (2024)

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[2024:RJ-JD:33975]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Writ Petition No. 13386/2024

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Udaipur Development Authority, Udaipur Through Its Commissioner.

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----Petitioner

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Versus

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Mangilal S/o Navla Ji, Aged About 60 Years, R/o Bada Hawala, Post Badi, Tehsil Badgaon, District Udaipur.

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----Respondent

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For Petitioner(s)	: Mr. VijayPurohit
For Respondent(s)	: Dr. Sachin Acharya, Sr. Advocate
	assisted byMr. Rakesh Kumar Chotia

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JUSTICE DINESH MEHTA

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Order

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16/08/2024

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By way of the present writ petition, the petitioner – Udaipur Development Authority (hereinafter referred to as ‘UDA’) has challenged the order dated 25.07.2024, whereby the interim order restraining the present petitioner (Udaipur Development Officer) from seizing the subject property was passed. Another order of the same Court passed on 03.08.2024 has also been challenged, whereby pursuant to an application filed by the respondent under section 151 of Code of Civil Procedure (hereinafter referred to as ‘the Code’) the trial court has issued notice to the Tehsildar to file his explanation, as to why the proceedings for contempt be not initiated against him.

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Dr. Sachin Acharya, learned Senior Counsel appearing for the respondent at the outset raised an preliminary objection that the present writ petition is not maintainable, because an appeal

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has been provided against an order passed in application under Order XXXIX Rule 1 & 2 of the Code according to Order XLIII Rule 1(r) of the Code. He submitted that the writ petition is, therefore, not maintainable.

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In response to the preliminary objection so raised by Mr. Acharya, Mr. Purohit, learned counsel for the petitioner submitted that maybe against the ad-interim order dated 25.07.2024, an appeal is provided, but since the petitioner has challenged the order dated 25.07.2024 so also the order dated 03.08.2024, the writ petition is the only remedy, as no appeal has been provided against order dated 03.08.2024.

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Considering the fact that the petitioner has not only challenged the order dated 25.07.2024, whereby ad-interim injunction was granted, but also the order dated 03.08.2024, whereby the Tehsildar of the petitioner Authority has been called upon to furnish his explanation, this Court is of the view that the Court’s power under Article 226/227 of the Constitution of India can be invoked in the present case, as no appeal has been provided against the order dated 03.08.2024.

¶21

Adverting to the merit of the case, learned counsel for the petitioner argued that the trial court had passed the impugned order dated 03.08.2024 in pursuance of an application under section 151 of the Code filed by the respondent. He vehemently argued that the trial court could not have taken suo-motu proceedings for contempt, as there was no application by the respondent - plaintiff.

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Learned counsel further submitted that in furtherance of an application captioned as ‘Application under section 151 CPC’, the

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trial court could not have resorted to provision of Order XXXIX Rule 2A of the Code.

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Various submissions were made raising grievance qua the ad-interim injunction granted by the trial court viz., (i) the trail court has passed the order in ignorance of the statutory provision; (ii) the suit filed by the respondent-plaintiff was not maintainable; (iii) the respondent-plaintiff was carrying on commercial activities; (iv) the hotel in question is established in a Wild Life Sanctuary.

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Heard learned counsel for the parties and perused the record.

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Needless to mention that the order dated 25.07.2024 was only an ad-interim injunction granted by the trial court, until the reply is filed. In normal circumstances, the petitioner – UDA should have filed reply to the application under Order XXXIX Rule 1 and 2 of the Code and pray for vacation of the interim order.

¶30

Be that as it may. The immediate concern, which has been raised before this Court is, about the order dated 03.08.2024, which has been passed in furtherance of an application under section 151 of the Code.

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It is not in dispute that the ad-interim injunction was passed on 25.07.2024 at about 05.00 p.m. It is the admitted case of the petitioner – UDA that on 26.07.2024 at 09.30 a.m. they have seized/sealed the premises.

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Learned counsel for the petitioner had contended that the representation, which the respondent-plaintiff had moved on 26.07.2024 somewhere in the evening, whereas the petitioner - UDA had already seized the premises in question at 09.30 a.m.

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From a reading of the representation dated 26.07.2024 one cannot decipher, as to whether the same was furnished before or after the premises was seized.

¶37

Even, if it is assumed that the representation dated 26.07.2024 was furnished after the plaintiff’s premises had been seized, this Court would like to observe that the ad-interim order was passed on 25.07.2024 in presence of UDA’s counsel, that too after the notice was served upon the Development Authority.

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According to this Court, since the ad-interim order was passed in presence of counsel for the UDA, it was incumbent upon the Tehsildar concerned or any other Officer of UDA to ascertain from their lawyer, about the status of the case, particularly when notice had already been served upon it - UDA.

¶39

A perusal of the order dated 03.08.2024, which has been oppugned before this Court shows that the trial court has simply sought an explanation of the Tehsildar of UDA, as to why the proceedings for contempt, as envisaged under Order XXXIX Rule 2A of the Code be not initiated against him.

¶40

The facts on record clearly shows that the Tehsildar has tried to overreach the process of the court and had sealed the subject property giving least regard to the Court’s order. This Court is unable to believe that a plaintiff, who had been granted an interim order may be at 05.00 p.m. on the previous day, would not inform the officers of UDA that an interim order has been passed. The plea taken by the petitioner – UDA that the representation dated 26.07.2024 was received somewhere in the evening, is therefore, clearly unbelievable and untenable may be the plaintiff did not have a copy of the order.

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The order dated 03.08.2024 is innocuous order, whereby the Tehsildar has been asked to furnish explanation. It is rather surprising to note that instead of filing a reply/response or explanation before the trail court, the Tehsildar has persuaded the UDA to file the present writ petition, challenging an order, whereby an explanation has been sought.

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This Court is unable to countenance the approach rather stubbornness of the Tehsildar, who firstly, had thrown the order of the trial court practically in winds and then, has preferred the present writ petition in the name of UDA to put a clock on his deeds and to save his skin. If anybody could maintain the present writ petition, it was the Tehsildar, in his individual capacity and not the UDA.

¶46

Because the trial court has simply elicited his response as to why contempt proceedings be not initiated. So far only a notice has been issued, in response whereof he has to furnish reply before the trial court. No final order even initiating contempt proceedings has so far been passed.

¶47

Argument of Mr. Purohit that the Court cannot exercise its power under Order IXXXX Rule 2A of the Code without any application is untenable. A perusal of respondent’s application under Section 151 of the Code (which was placed for perusal of the Court) reveals that apart from the prayer to maintain status quo ante, a prayer was made to initiate the proceedings for contempt. That apart wrong mentioning or even wrong mentioning of provision does not render the Order void, if the power can be traced in any other provision.

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Interfering in the order dated 03.08.2024 at this stage, would be practically making the trial court and its powers under section 151 of the Code practically redundant and nugatory. This Court, therefore, refuses to entertain the present writ petition.

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The writ petition is, therefore, dismissed.

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While parting with, this Court would like to observe that whatever has been stated hereinabove, is only a prima-facie observation and the same will not bound the trial Court, if a proper explanation is furnished by the Tehsildar, the trail Court shall take decision in accordance with law.

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In case, the explanation is so put forth, the trial court shall consider the same in accordance with law and in case. Further, any application for vacation of ad-interim order is filed, the same shall also be decided dispassionately, independently of the observation made in the order instant, because, this Court has not pronounced upon the merit of the plaintiff’s right in any manner. 26. Stay application also stands dismissed, accordingly.

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(DINESH MEHTA),J

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297-Mak & Arun/-

Udaipur Development Authority v. Mangilal

Case brief

What is this about?

What did the court decide?

Udaipur Development Authority v. Mangilal

Case brief

What is this about?

What did the court decide?

What the court decided

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