AXON CONSTRUCTION PVT. LTD. Vs. OM ASTHA CONSTRUCTION PVT. LTD. AND ORS

Supreme Court of India (Division Bench (DB)- Two Judge)

Special Leave Petition (Civil), 5430 of 2016, Judgment Date: Feb 29, 2016

                                                              Non-Reportable
                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                   SPECIAL LEAVE PETITION (C) NO.5430/2016


      Axon Construction Pvt. Ltd.                             Petitioner (s)


                             VERSUS


      Om Astha Construction Pvt. Ltd.
      & Ors.                                                   Respondent(s)



                                  O R D E R

      1)    This SLP is filed by defendant No. 1 of Title Suit  No.  789  of
      2013 against the order dated  08.12.2015 passed by the Single Judge of
      the Patna High Court in C.W.J.C. No. 10572 of 2015,   which  in  turn,
      arises out of the interim order dated 04.01.2014 passed in Title  Suit
      No. 789 of 2013 pending in the Court of sub-Judge VI,  Patna.
      2)    By impugned order, the High  Court  declined  to  entertain  the
      petitioner’s writ petition filed under Article 227 of the Constitution
      of India on the ground that the order sought to  be  impugned  in  the
      writ petition by the petitioner was an appealable order under Order 43
      Rule 1 of the Code  of  Civil  Procedure,  1908  and  hence  the  writ
      petition is not entertainable to examine the legality and  correctness
      of the interim order dated 04.01.2014.
      3)    Learned counsel for the petitioner,  at  the  outset,  submitted
      that it may not be necessary for this Court to go into the question as
      to whether the view taken by  the  High  Court  while  dismissing  the
      petitioner’s writ petition is correct or not and the petitioner  would
      be satisfied if this Court directs  the  trial  Court  (Sub-Judge  VI,
      Patna) who is seized of the application made by the  petitioner  under
      Section 8 of the Arbitration Act in the  aforementioned  suit  and  is
      also seized of the injunction application to ensure their  expeditious
      disposal on merits in accordance with law because no orders one way or
      other have so far been passed since  long  causing  inconvenience  and
      injury to all parties concern.
      4)    In our view, the prayer made by the petitioner is reasonable and
      accordingly we dispose of this special leave petition and  direct  the
      Sub-Judge VI,  Patna to decide the application made under Section 8 of
      the Arbitration Act  in  T.S.  No  789  of  2013  and  the  injunction
      application on their respective merit in  accordance  with  law  after
      affording an opportunity to the parties preferably within 6 weeks from
      the date of production of this order by the petitioner uninfluenced by
      any of our observations.
      5)    Special Leave Petition stands accordingly disposed of.

                                    .……...................................J.
                                                            [J. CHELAMESWAR]





                                     ………..................................J.
                                                       [ABHAY MANOHAR SAPRE]
      New Delhi,
      February 29, 2016.