Appellate Court Becomes Functus Officio After Disposing Main Appeal, Cannot Decide Injunction Application Thereafter: Gauhati High Court
The Gauhati High Court recently held the dismissal of an injunction application by a District Judge, 5 days after disposal of the main title appeal, to be bad in law. The single judge bench of Justice Justice Parthiv Jyoti Saikia observed:“The Title Appeal was disposed of on 23.02.2022 and the connected injunction petition was disposed of 5 days later, i.e. on 28.02.2022. With the delivery...
The Gauhati High Court recently held the dismissal of an injunction application by a District Judge, 5 days after disposal of the main title appeal, to be bad in law.
The single judge bench of Justice Justice Parthiv Jyoti Saikia observed:
“The Title Appeal was disposed of on 23.02.2022 and the connected injunction petition was disposed of 5 days later, i.e. on 28.02.2022. With the delivery of the judgment on 23.02.2022, the first appellate court of the District Judge became functus officio and therefore, the dispose of the injunction petition five days thereto is bad in law.”
The petitioner filed a Title Suit against the respondent along with a petition under Order 39 Rule 1 and 2 of CPC. The said injunction application was allowed against the respondent by the trial court.
However, the Title Suit was dismissed by the trial court.
The petitioner preferred an appeal before the District Judge along with a petition under Order 39 Rule 1 and 2 CPC praying for grant of temporary injunction.
The District Judge vide order dated February 23, 2022 disposed the Title Appeal by remanding the case to the trial court with certain directions.
However, the injunction petition was dismissed by the District Judge after 5 days of disposal of Title Appeal i.e. February 28, 2022.
The Counsel appearing for the petitioner, A. Iqbal submitted before the High Court that after passing of the judgement, the appellate court of District Judge became functus officio and therefore, he should not have disposed of the injunction petition five days later.
R. Choudhury, Advocate appearing for the respondent contended that the said order dated February 28, 2022 is an appealable order under Order 43(r) of the CPC and the High Court is not supposed to exercise the power under Article 227 of the Constitution of India.
The court held the dismissal of injunction petition after 5 days of disposal of Title Appeal by the District Judge as bad in law.
Thus the court held:
“This is a fit case for exercising the supervisory power of the High Court under Article 226 of the Constitution of India. Therefore, the order dated 28.02.2022 passed by the District Judge in Misc. (J) Case No.16/2021 arising out of Title Appeal No.01/2021 is set aside.”
However, the court further held that the petitioner is at liberty to file a fresh petition under Order 39 Rule 1 and 2 of the CPC in the trial court.
Case Title: Bimal Chandra Biswas v. Arup Karmakar
Citation: 2023 LiveLaw (Gau) 44
Coram: Justice Parthiv Jyoti Saikia
Click Here to Read/Download Judgment