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2002 DIGILAW 1943 (RAJ)

URBAN IMPROVEMENT TRUST, JODHPUR v. BARKAT KHAN

2002-12-12

B.S.CHAUHAN

body2002
Judgment B. S. CHAUHAN, J. ( 1 ) THE petitoin is pending before this Court for last two years and still notices have not been issued. The petition is aginst the order of the learned trial court rejecting an application of the petitioner under order 7 Rule 11 of the Code of Civil Procedure, 1908 (for short, "the Code") filed on the ground that the application filed under Order 39 Rule 2a of the Code did not give rise to any cause of action for the reason that the court had passed the order to maintain status quo regarding possession and it was not possible to identify the land in respect of which the interim order had been passed and, thus, the application under Order 39 Rule 2a of the code should be rejected. The Court has dismissed the application on the ground that whether the land, in respect of which the interim order had been passed, could be identified, is a question to be determined after considering the evidence led by the parties. ( 2 ) IN such a complicated issue as to whether the land, in respect of which the interim order had been passed, could be identified or not, is a question to be determined after appreciating the evidence led by the parties. Thus, the court below has not committed any jurisdictional error in rejecting the application under Order 7 Rule 11 of the Code. ( 3 ) EVEN otherwise, the application under order 7 Rule 11 of the Code had been filed in view of the provision of Section 141 of the code, which reads as under :-"miscellaneous proceedings.- The procedure provided in this code in regard to suits shall be followed as far as it can be made applicable, in appropriate proceedings in any court of civil jurisdiction. " the provision does not provide to apply all the provisions in the Code in each and every proceeding. It stands qualified by the expression "as far as it can be made applicable. " The provisions of Order 39 Rule 2a of the Code are of a different nature altogether. A constitution Bench of the Honble Supreme Court, in State of Bihar v. Rani Sona Bati Kumari, has categorically held that the said provisions deal with the wilful defiance of the order passed by the Civil Court. " The provisions of Order 39 Rule 2a of the Code are of a different nature altogether. A constitution Bench of the Honble Supreme Court, in State of Bihar v. Rani Sona Bati Kumari, has categorically held that the said provisions deal with the wilful defiance of the order passed by the Civil Court. The Apex Court held that there must be wilful disobedience of the injunction passed by the court and order of punishment be passed unless the court is satisfied that the party was, in fact, under a misapprehension as to the scope of the order or there was an unintentional wrong for the reason that the order was ambiguous and reasonably capable of more than one interpretation or the party never intended to disobey the order but conducted himself in accordance with the interpretation of the order. The proceedings were purely quasi-criminal in nature and are, thus, punitive. Even the corporate body like municipality/government can be punished though no officer of it is a party by name. A similar view has been reiterated by the Honble Supreme court in Aligarh Municipal Board and Ors. v. Ekka Tonga Mazdoor Union and Ors. ; by the allahabad High Court in Raton Narain Mulla v. The Chief Secretary, Gout. of U. P. and Ors. ; and by the Delhi High Court in M/s. Jyoti Limited v. Smt. Kanwaljit Kaur Bhasin and Anr. ( 4 ) IN Tayabbhai M. Bagasarwalla and Ors. v. Hind Rubber Industries Pvt. Ltd. , the honble Supreme Court dealt with a case of disobedience of an injunction passed under order 39 Rules 1 and 2 of the Code, where in the contention was raised that the proceedings under Order 39, Rule 2a cannot be initiated and no punishment can be imposed for disobedience of the order because the civil court, which granted the injunction, had no jurisdiction to entertain the suit. The Apex court rejected the contention holding that a party aggrieved of the order has a right to ask the court to vacate the injunction pointing out to it that it had no jurisdiction or approach the higher court for setting aside that order, but so long the order remains in force, the party cannot be permitted to disobey it or avoid punishment for disobedience on any ground, including that the court had no jurisdiction, even if ultimately the court comes to the conclusion that the court had no jurisdiction to entertain the suit. The party, who willingly disobeys the order and acts in violation of such an injunction, runs the risk for facing the consequence of punishment. ( 5 ) IN Samee Khan v. Bindu Khan, the honble Supreme Court held that in exercise of the power under Order 39 Rule 2a of the code, the Civil Court has a power either to order detention for disobedience of the disobeying party or attaching his property and if the circumstances and facts of the case so demand, both steps can also be resorted to. The apex Court held as under :-"but the position under Rule 2a of order 39 is different. Even if the injunction order was subsequently set aside the disobedience does not get erased. It may be a different matter that the rigour of such disobedience may be toned down if the order is subsequently set aside. For what purpose the property is to be attached in the case of disobedience of the order of injunction ? Sub-rule (2) provides that if the disobedience or breach continues beyond one year from the date of attachment the Court is empowered to sell the property under attachment and compensate the affected party from such sale proceeds. In other words, attachment will continue only till the breach continues or the disobedience persists subject to a limit of one year period. If the disobedience ceases to continue in the meanwhile the attachment also would cease. Thus, even under Order 39, Rule 2-A the attachment is a mode to compel the opposite party to obey the order of injunction. But detaining the disobedient party in civil prison is a mode of punishment for his being guilty of such disobedience. If the disobedience ceases to continue in the meanwhile the attachment also would cease. Thus, even under Order 39, Rule 2-A the attachment is a mode to compel the opposite party to obey the order of injunction. But detaining the disobedient party in civil prison is a mode of punishment for his being guilty of such disobedience. "thus, in view of the above, it becomes crystal clear that the proceedings are analogous to the contempt of court proceedings but they are taken under the provisions of Order 39, rule 2a of the Code for the reason that the special provision inserted in thecode shall prevail over the general law of contempt contained in the Contempt of Courts Act, 1972 (for short, "the Act, 1972" ). Even the High Court, in such a case, shall not entertain the petition under the provisions of Act, 1972. (Vide Ram Roop pandey v. R. K. Bhargaua and Ors. ; Smt. Indu tewari v. Ram Bahadur Chaudhari and Ors. ; and Rudraiha v. State of Karnataka and Ors. ). ( 6 ) IN Md. Jamal Paramanik and Ors. v. Md. Amanullah Munshi, the Gauhati High court held that it is not permissible for a court to impose a fine or compensatioin as one of the punishments for the reason that the provisions of Order 39, Rule 2a do not provide for it. ( 7 ) IN Thakorlal Parshottamdas v. Chandulal Chunilal, Honble Mr. Justice p. N. Bhagwati (As His Lordship them was) held that the punishment for breach of interim injunction cannot be set-aside even on the ground that the injunction was ultimately vacated by the appellate Court. ( 8 ) IN Rachhpal Singh v. Gurdarshan singh, a Division Bench of Punjab and Haryana high Court held that if an interim injunction had been passed and is alleged to have been violated and application for initiating contempt proceeding under Order 39, Rule 2a has been filed but during its pendency the suit itself is withdrawn, the court may not be justified to pass order of punishment at that stage. Thus, it made a distinction from the above referred gujarat High Courts decision in Thakorlal parshottamdas (supra) that contempt proceedings should be initiated when the interim injunction is in operation. Thus, it made a distinction from the above referred gujarat High Courts decision in Thakorlal parshottamdas (supra) that contempt proceedings should be initiated when the interim injunction is in operation. ( 9 ) IN Kochira Krishnan v. Joseph desouza, it has been held that violation of injunction or even undertaking given before the court is punishable under Order 39, Rule 2a of the Code. The punishment can be imposed even if the matter stood disposed of, for the reason 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 the court and not with the ultimate decision in the matter. While deciding the said case, the Court placed reliance upon the judgment of the Privy Council in Eastern Trust Co. v. Makenzie Mann and co. Ltd. , wherein it had been observed as under :. "an Injunction, although subsequently discharged because the plaintiffs case failed, must be obeyed while it lasts. . . . . " this Court had taken a similar view in Manga v. Rustam. ( 10 ) THUS, it is evident from the above discussion that the proceedings are analogous to the proceedings under the Act, 1972. The only distinction is that as the Legislature, in its wisdom, has enacted a special provision enacting the provisions of Order 39 Rule 2a, it would prevail over the provisions of the Contempt of courts Act. Though the High Court, by virtue of the provisions of Section 10 of the Act, 1972 can initiate the contempt proceeding even for disobedience of the injunction order granted by the civil court, but the exercise of such power is discretionary and generally does not require to be exercised in view of the special power conferred upon the civil court itself as held by the Division Bench of the Delhi High court in Dr. Bimal Chandra Sen v. Mrs. Kamla Mathur. ( 11 ) IN Andre Paul Terence Ambard v. Attorney General for Trinidad and Tabago, the Privy Council has observed that the proceedings under the Contempt of Courts Act are quasi-judicial in nature and orders passed in those proceedings are to be treated as orders passed in criminal cases. Bimal Chandra Sen v. Mrs. Kamla Mathur. ( 11 ) IN Andre Paul Terence Ambard v. Attorney General for Trinidad and Tabago, the Privy Council has observed that the proceedings under the Contempt of Courts Act are quasi-judicial in nature and orders passed in those proceedings are to be treated as orders passed in criminal cases. ( 12 ) IN Sukhdeo Singh v. Honble the chief Justice Teja Singh and Honble Justice the Par pepsu High Court at Patila, the Supreme Court has taken the same view. ( 13 ) A full Bench of Punjab and Haryana high Court, in Sher Singh v. R. P. Kapoor, has held that the contempt proceedings are, by all means, a quasi-criminal in nature. The applicant must prove his allegations beyond reasonable doubt and the alleged contemnors are entitled to the benefit of doubt. The same view has been taken by the Division Bench of madras High Court in B. Yegnaryaniah, AIR 1974 Mad. 313 ; and by the Lahore High Court in Homi Rustom G. Pardiawala v. Sub-Inspector Baig and Ors. ( 14 ) IN S. Abdul Karim vs. M. K. Prakash, the Honble Apex Court has held that the standard of proof required to establish a charge in contempt proceedings is the same as in any other criminal proceedings. It is all the more necessary to insist upon strict proof of such charged act complained of is committed by a person performing judicial/ quasi-judicial proceedings. ( 15 ) IN Jawand Singh Hakum Singh v. Om Prakash, the Punjab and Haryana High court, while dealing with a contempt matter, had observed that guilt of a person of having committed contempt of court, must rest on reasonable certainty. Suspicion, no matter how strong and speculative, however, suspicions must not form the basis for contempt. ( 16 ) IN Chhotu Ram v. Urvashi Gulati and Ors. the Honble Supreme Court held that burden and standard of proof in contempt proceeding, being quasi-criminal in nature, is the standard of proof required in criminal proceedings, for the reason that contempt proceedings are quasi-criminal in nature. ( 16 ) IN Chhotu Ram v. Urvashi Gulati and Ors. the Honble Supreme Court held that burden and standard of proof in contempt proceeding, being quasi-criminal in nature, is the standard of proof required in criminal proceedings, for the reason that contempt proceedings are quasi-criminal in nature. ( 17 ) IN view of the above discussion, one reaches the inescapable conclusion that the proceedings under Order 39 Rule 2a are quashi-criminal in nature and are meant to maintain the dignity of the court in the eyes of the people so that the supremacyof law may prevail and to deter the people for mustering the courage to disobey the interim injunction passed by the court. Application under Order 7 Rule 11 of the Code deals for rejecting a plaintiff if it does not reveal any cause of action. In criminal proceedings, the said provision has no application. If an application for disobeying the order of the court is filed, the court has to examine the allegations in the application, giving full opportunity to the other party of hearing and decide it as a criminaltrial. Thus, the application filed by the defendant-petitioner under Order 7 Rule 11 of the code seems to be totally misconceived and not maintainable. No such argument has been advanced before the Court below, nor the court itself considered this aspeci and proceeded with the application and dismissed it on merit though reason given therein is right that the allegations made in the application under Order 39 rule 2a are to be examined by giving opportunity of hearing and adducing evidence to both the parties. ( 18 ) BE that as it may, the order passed by the Court below does not warrant any interference for the reason stated above. The revision petition is accordingly dismissed. Revision dismissed.