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2002 DIGILAW 913 (PNJ)

Avtar Singh v. Balkar Singh

2002-09-12

M.M.KUMAR

body2002
Judgment M.M.Kumar, J. 1. This Contempt Petition has been filed against the respondents for violating the judgment and decree passed by the Additional Sessions Judge (Senior Division) Ajnala in Civil Suit No. 487 of 1994 decided on April 28, 1997. Numerous allegations have been levelled against the respondents No. 1 to 3, who were party to the decree as well as respondents No. 4 and 5 - the police officials, who are alleged to have helped respondents No. 1 and 3 in taking forcible possession. 2. Without going into the entire controversy raised in the contempt Petition, I deem it appropriate to relegate the petitioner to seek execution of the decree as a regular remedy for execution of the decree is provided by Order XXI Rule 32. The Executing Court is well armed with the powers of forcing the respondents to comply with the decree of permanent injunction. This view has been taken by this Court on COCP No. 88 of 2002. The observations made by this Court read as under : "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 & others, 1974 PLJ (Crl.) 71, Janak Ram & others v. Vinesh Das Puri & others, 1975 PLJ (Crl.) 39 and M/s Bharaj Manufacturing Private Limited Company (supra). 3. In the case of M/s Bharaj 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 XXXIX Rule 2A of the Code, to punish the respondents for disobedience of the ad 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 XXXIX 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. Khilla 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 contemner. In cases of disobedience of the orders of the subordinate Courts regarding the interim injunction issued under Order XXXIX Rules 1 and 2 of the Code the same can be adequately punished by the trial Court itself under Order XXXIX 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 respondents 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." 4. The other argument of the petitioner that the proceedings initiated under Order 39 Rule 2-A 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 contemner. 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 contemner. It cannot be disputed that proceeding which are initiated under Order 39 Rule 2-A of the Code, are quasi criminal in nature. Dealing with this aspect, Their Lordships of the Supreme Court in Rani Somabati 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 designed 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 C1. (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 wilfully 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 Cls. 4 and 3 respectively of O. 39, R. 2, and the provisions leave no room for doubt that O. 39, R. 2(3) is in essence only the mode for the enforcement or effectuation of an order of injunction." 5 Therefore, the present Contempt Petition is not maintainable, in view of the fact that the effective and efficacious remedy is available to the petitioner. For the reasons afore-mentioned, the Contempt Petition is dismissed with liberty in terms of the observations made in paras above.