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2002 DIGILAW 120 (PNJ)

Surinder Singh v. Rai Rani

2002-01-25

M.M.KUMAR

body2002
JUDGMENT M.M. Kumar, J. -The question that arises for consideration in this contempt petition filed under Section 10 read with Section 2(b) of the Contempt of Courts Act, 1971 (for brevity the Act) is whether proceedings under Section 10 of the Act or proceedings under Order 39 Rule 2A of the Code of Civil Procedure, 1908 (for brevity the Code) should be initiated for violation of the order passed under Order 39 Rules 1 and 2 of the Code. 2. Facts of this case lie in a narrow compass. The petitioner has filed a civil suit for permanent injunction with a prayer that the defendants be restrained from damaging the roof or any other part of the shop No. 2 out of building No. 4754 situated in Gali No. 6. Chowk Tahliwala, Sarwarpura, Sultan wind Road. Amritsar. The allegation in the suit is that respondents have started damaging the roof of the demised shop in order to force the petitioner-plaintiff to vacate the same. The petitioner is carrying on the business of goldsmith in the shop. The suit was instituted and an application was filed under Order 39 Rules 1 and 2 of the Code before the Civil Judge, (Junior Division), Amritsar, who passed order of status quo on 6.11.2001 which reads as under :- "Alongwith the main suit, the plaintiff/applicant, has also filed an application under Order 39 Rules 1 and 2 read with Section 151 of the Code. Heard thereon. The application is supported with duly sworn affidavit of plaintiff, photocopy of power of attorney, original site plan, copies of statements of defendants as well as counsel and order dated 23.1.1993 pertaining to earlier litigation. From the perusal of documents on record. I am of the opinion that let the purpose of filing the present suit be not defeated by delay, both the parties to the suit are directed to maintain status quo position as to the condition of building in dispute till further order. Compliance of Order 39 Rule 3 of the Code be made forthwith. The plaintiff is directed to get the service of defendant effected till 10.11.2001 failing which the ex-parte status quo order shall stand vacated automatically. Let notice be issued to the defendants, for 10.11.2001 on filing PF/copies." 3. The above mentioned order was extended and the respondents were proceeded against ex parte on 22.11.2001. 4. The plaintiff is directed to get the service of defendant effected till 10.11.2001 failing which the ex-parte status quo order shall stand vacated automatically. Let notice be issued to the defendants, for 10.11.2001 on filing PF/copies." 3. The above mentioned order was extended and the respondents were proceeded against ex parte on 22.11.2001. 4. It has been alleged in this contempt petition that despite the interim order passed by the Civil Judge on 6.11.2001 the respondents continue to damage the roof of the shop by removing the tiles and pouring acid on it which has leaked into the shop causing damage. Despite repeated request alongwith respectable persons of the locality, the respondents are still proceeding with their activities. It has further been averred that on 1.12.2001 DDR No. 19 was lodged in the police station B Division. Amritsar and the matter was investigated. Investigation revealed that the water was dipping from the roof and the whole shop was damaged. Copy of the report No. 32 dated 1.12.2001 has been placed on record. The petitioner has further placed on record the photocopies of the roof of the shop and also that of the shop. 5. I have heard Shri D.S. Pheruman, learned counsel for the petitioner and have perused the documents placed on record with his assistance. 6. Shri D.S. Pheruman has argued that under Section 11 of the Act, High Court alone is clothed with the jurisdiction to proceed for contempt of Court for violation of the order passed by the subordinate Courts. According to the learned counsel proceedings under Order 39 Rule 2A of the Code are in the nature of seeking compliance of the orders passed by the subordinate Courts and no penal action can be initiated against the contemner. In support of his argument, he has placed reliance on a judgment of the Supreme Court in the case of State of Bihar v. Rani Sonabati Kumari, A.I.R. 1961 S.C. 221. He has further relied on a judgment of this Court in M/s. Bharat Manufacturing Co. (Regd.) v. Jai Pal and others, (1980)82 P.L.R. 406. 7. In support of his argument, he has placed reliance on a judgment of the Supreme Court in the case of State of Bihar v. Rani Sonabati Kumari, A.I.R. 1961 S.C. 221. He has further relied on a judgment of this Court in M/s. Bharat Manufacturing Co. (Regd.) v. Jai Pal and others, (1980)82 P.L.R. 406. 7. Having heard the learned counsel for the petitioner and considering his arguments, I am of the view that this contempt petition is not maintainable because the consistent view taken by this Court is that proceedings initiated under Order 39 Rule 2A of the Code are equally efficacious and, therefore, the alternative remedy of Order 39 Rule 2A of the Code should be resorted to. This view has been taken by this Court in Hari Parshad v. Khila Ram and others, 1974 P.L.J. (Crl.) 71; Janak Ram and others v. Vinesh Das Puri and others, 1975 P.L.J. (Crl.) 39 and M/s. Bharat Manufacturing Private Limited Company (supra). 8. In the case of M/s Bharat Manufacturing (supra) the learned Single Judge approved the observations made by another learned Single Judge in the case of Hari Parshad (supra) the relevant portion of the judgment reads as under : "It was then contended that even if the application under Order 39 Rule 2A of the Code, to punish the respondents for disobedience of the interim injunction is pending the same does not take away the jurisdiction of this Court to proceed against the respondents under section 10 read with section 12 of the Act. The jurisdiction of the Court under section 10 is taken away only in a case where the alleged contempt is an offence punishable under the Indian Penal Code. So far as this principle of law is concerned, there can be no exception to it, but the question is when an equally effective and adequate remedy against the disobedience of the order of a subordinate Court has been provided under Order 39 Rule 2A of the Code and has also been availed of should the High Court exercise its discretion into matter of the alleged contempt ? In similar circumstances, S.C. Mittal, J. declined to proceed under Section 12 of the Act in Hari Parshad v. Khila Ram and others. I am in entire agreement with this principle of law. In similar circumstances, S.C. Mittal, J. declined to proceed under Section 12 of the Act in Hari Parshad v. Khila Ram and others. I am in entire agreement with this principle of law. In matters of contempt, the only function of the aggrieved person is to bring it to the notice of the Court the matter regarding the contempt alleged to have been committed by any person. Therefore, the matter rests exclusively between the Court and the alleged condemner. In case, of disobedience of the orders of the subordinate Courts regarding the interim injunction issued under Order 39 Rules 1 and 2 of the Code the same can be adequately punished by the trial Court itself under Order 39 Rule 2A of the Code. The trial Court in such matters is in a better position as the suit is still pending and the evidence also is to be recorded there. Consequently, the preliminary objection of the respondent is upheld and the contempt petition is dismissed on this ground alone. However, this decision will have no bearing on the merits of the case put forth by the petitioner in this petition regarding the allegations of disobedience of the ad interim injunction. 9. The other argument of the petitioner that the proceedings initiated under Order 39 Rule 2A of the Code are not penal in nature and are directed towards achieving the object of compliance of the order passed by the trial Court would not be relevant to decide the question posed. The duty of the petitioner is to bring to the notice of the Court the order passed by it and its violation. Thereafter, the matter rests wholly between the Court and the condemner. It cannot be disputed that proceedings which are initiated under Order 39 Rule 2A of the Code are quasi criminal in nature. Dealing with this aspect. Their Lordships of the Supreme Court in Rani Sonabati Kumaris case (supra) has observed as under:- "Though undoubtedly proceedings under Order 39, Rule 2(3) Civil Procedure Code have a punitive aspect - as is evident from the contemner being liable to be ordered to be detained in civil prison - they are in substance designated to effect the enforcement of or to execute the order. This is clearly brought out by their identity with the procedure prescribed by the Civil Procedure Code for the execution of a decree for a permanent injunction. Order 21, Rule 32 sets out the method by which such decrees could be executed and Clause (1) enacts - "where the party against whom a decree... for an injunction has been passed has had an opportunity for obeying the decree and has willfully failed to obey it, the decree may be enforced, in the case of a decree... for an injunction by his detention in the civil prison, or by the attachment of his property or by both." Clauses 2 and 3 of this rule practically reproduce the terms of Clauses 4 and 3 respectively of Order 39 Rule 3 and the provisions leave no room for doubt that Order 39 Rule 2(3) is in essence only the mode for the enforcement or effectuation of an order of injunction." 10. Applying the principles laid down in the various judgments of this Court, I am of the considered opinion that the contempt petition under the Contempt of Courts Act would not lie where allegation is made that the respondent has violated the orders/decrees passed by the Subordinate Courts because there is equally efficacious alternate remedy available under Order 39 Rule 2-A of the Code. Moreover, the Court passing the interlocutory order would be fully alive to the situation and that Court would be in a better position to deal with the controversy raised in such like petitions. Therefore, this petition is liable to be dismissed on the ground that equally efficacious alternative remedy under Order 39 Rule 2-A of the Code is available. 11. For the reasons recorded above, this petition fails and is dismissed. However, liberty is granted to the petitioner to avail the remedy under Order 39 Rule 2-A of the Code by moving appropriate application before the Civil Judge. Petition dismissed.