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1994 DIGILAW 201 (ALL)

Bhirgu Dayal v. Ramesh Prasad

1994-02-25

J.P.SEMWAL

body1994
JUDGMENT J.P. Semwal 1. Heard Shri V. K. Singh learned counsel for the appellant and Shri V. C. Singh learned counsel for the respondents. Learned counsels for the parties agree that the appeal may be disposed of at this stage and the application dated 2-11-1989 for temporary injunction need not to be disposed of. 2. This appeal has been preferred against the order dated 31-7-1989, passed by the 1st Addl. District Judge, Ballia rejecting the application moved under Order 39 Rule 2-A CPC, by the defendant-appellant. A suit for permanent injunction bearing original suit no. 499 of 1980 was filed by Mahesh Prasad and other plaintiffs-respondents for restraining the defendants- appellant from interfering in the possession of plaintiffs-respondents over Sikmi plots no. 1816 and 973 and also for demolition of the. contractions made by the defendant in plot no. 973. The 3rd Addl. Mnnsif Ballia partly decreed the suit for permanent injunction in respect of plot no. 1015 and dismissed the suit in respect of plot no. 973 by the judgment and decree dated 8-2-1988. Aggrieved by the said Order the plaintiffs filed Civil Appeal No. 72 of 1988 and the defendant appellant Bhirgu Dayal also filed cross objection. During the pendency of the appeal, the defendant appellant -Bhirgu Dayal filed an injunction application on 9-1-1989 for restraining the plaintiffs from interfering in his possession or making any construction over the land in dispute. The District Judge passed the order on the same day directing the parties to maintain "status quo. The said order was served upon the plaintiffs through Shri Ranjeet Singh, Advocate, who was appointed as Vakil Commissioner by the court. The plaintiff respondents moved an application for recalling the order dated 9-1-1989 and the learned District Judge, after hearing the parties passed an order on 19-1-1989, directing that neither party without approval of the court, would alter or make any construction on the land in dispute. He also gave direction for making a brick passage from Town Area road to the Ahata of the plaintiffs with under-ground drainage asking the parties to deposit Rs. 1000/-. The plaintiff-respondents did not" deposit the said amount. The Vakil Commissioner went to the spot on 11-2-1989 for execution of the order passed by the District Judge but the plaintiffs are alleged to have caused obstructions and the Vakil Commissioner had to report the matter at Police Station Kotwali. 1000/-. The plaintiff-respondents did not" deposit the said amount. The Vakil Commissioner went to the spot on 11-2-1989 for execution of the order passed by the District Judge but the plaintiffs are alleged to have caused obstructions and the Vakil Commissioner had to report the matter at Police Station Kotwali. The plaintiffs-respondents are further alleged to have raised construction on 16-2-1989 due to, which Nabdan and door of the defendant appellant is alleged to have been completely closed. On these allegations, the defendant appellant moved application under Order 39 Rule 2-A CPC before the appellate court on 5-5-1989. The 1st Addl. District Judge, Ballia, without going into the merits of the allegations, rejected the. application solely an the ground that as appeal no. 72 of 1988, had been decided on 15-5-1989, the application under Order 39 Rule 2-A CPC was not maintainable. 3. The learned Addl. District Judge, placed reliance on ruling of this Court reported in case of Ram Shanker v. Suraj Prasad, 1962 ALJ 201 wherein it has been held that once the suit is concluded whether in the original court or in the appeal, the court would become functus officio for the purposes of taking any action or passing any order on the Application for disobedience of injunction. 4. Aggrieved by the impugned order, the appellant has preferred this appeal. The learned counsel for the appellant has vehemently argued that the aforesaid authority has no application after the amendment or Order 39 Rule 2-A CPC. A very short question is involved in this appeal; whether the application under Order 39 Rate 2-A CPC was not maintainable after the decision of the appeal No. 72 of 1988 and the 1st Addl. District Judge had become functus officio for the purposes of taking any action or passing any order on the application for disobedience of injunction. 5. I have gone through the aforementioned ruling and also Order 39 Rule 2-A CPC and have considered the submissions made before me. 6. District Judge had become functus officio for the purposes of taking any action or passing any order on the application for disobedience of injunction. 5. I have gone through the aforementioned ruling and also Order 39 Rule 2-A CPC and have considered the submissions made before me. 6. The present provisions of Rule 2-A of Order 39 CPC are as under : "2-A. Consequence of disobedience or breach of injunction.-(1) In the case of disobedience of any injunction granted or other order made under Rule 1 of Rule 2 or breach of any of the terms on which the injunction was granted or the order made, of the Court granting the injunction or making the order, or any Court to which the suit or proceeding is transferred, may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the court directs his release. (2) No attachment: made under this rule shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues, the property attached may be sold and out of the proceeds, the Court may award such compensation as it thinks fit to the injured party and shall pay the balance, if any to the party entitled thereto." It will be pertinent to refer the earlier provisions which has been quoted in the aforesaid ruling. The same is given as under : "in the case of disobedience to an injunction issued under sub-rules (J) and (2) of Rule 2-A or breach of any terms of any such injunction the court, in which the suit is proceeding may order the property of the person guilty of such disobedience or breach, to be attached and may also order such person to be detained in civil prison for a term not exceeding six months, unless in the meantime the court directs his release." 7. A comparison of old and new provisions of Order 39 Rule 2-A CPC would make it clear that the aforesaid authority does not apply to the present case. In the aforecited case of Ram Shanker v. Suraj Prasad, the earlier provisions were applicable in view of the unamended provisions. 8. A comparison of old and new provisions of Order 39 Rule 2-A CPC would make it clear that the aforesaid authority does not apply to the present case. In the aforecited case of Ram Shanker v. Suraj Prasad, the earlier provisions were applicable in view of the unamended provisions. 8. In the present Rule 2-A, the words "in which suit is proceeding" do not find place and thus the aforecited ruling does not apply to the present case. The learned counsel for the appellant has cited ruling, Kochira Krishnan v. Joseph Desouza. AIR 1986 Ker. 63 , in support of his contention that the Court is concerned only with the question whether there was a disobedience of the order of injunction or violation of an undertaking given before Court and net with the ultimate decision in the matter and that mere fact that the appeal itself had been disposed of does not make an application under Order 39 Rule 2-A, not maintainable. The contention of the learned- counsel for the appellant has substance. 9. The object of the amendment of Rule 2-A is to provide for the consequences of the breach of an injunction which was not covered earlier. The transferee court has also been empowered to punich disobedience of an injunction issued by predecessor court. The thrust of Rule 2-A is not of implementation of the order but of punishment of violation of order of injunction or of undertaking given to the court and the present Rule 2-A (1) does not deal with implementation but with punishment for disobedience. 10. The learned Addl. District Judge has erred in rejecting the application of the appellant under Order 39, Rule 2-A CPC on the ground that the appeal had already been decided and, therefore, the application was not maintainable. The impugned order suffers from infirmity and cannot be. sustained. The court of 1st Addl. District Judge had not become functus officio on the appeal no. 72 of 1988 having been decided and the application under Order 39 Rule 2-A CPC could not have been rejected on that ground. The learned Addl. District Judge has not considered the application under Order 39 Rule 2-A CPC on merits, hence this Court has not other alternative but to remand the case to the court below for deciding the application in accordance with law after giving opportunity to both the parties. The learned Addl. District Judge has not considered the application under Order 39 Rule 2-A CPC on merits, hence this Court has not other alternative but to remand the case to the court below for deciding the application in accordance with law after giving opportunity to both the parties. In the result, the appeal succeeds and is allowed, and the Order dated 31-7-1989 passed by the 1st Addl. District Judge, Ballia rejecting the application under Order 39 Rule 2-A CPC is set aside. 11. Let the case be sent back without delay to the court below for disposal in accordance with, law and in the light of observations set out above. Petition allowed.