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2005 DIGILAW 2489 (ALL)

SATYA PRAKASH TIWARI @ KALLU v. CIVIL JUDGE (Jr. Div. ) ETAWAH

2005-12-13

B.S.CHAUHAN, DILIP GUPTA

body2005
JUDGMENT Hon’ble Dr. B.S. Chauhan, J.—This writ petition has been filed raising the grievance that in spite of the fact that Civil Court passed an interim injunction in favour of the petitioner in the pending Civil Suit No. 85 of 2003, the respondents are not ensuring the compliance thereof. 2. The facts and circumstances giving rise to this case are that a road is being constructed, and for.that purpose, earth is being taken from the petitioner’s land. Being aggrieved, he filed a Civil Suit No. 85 of 2003, Satya Prakash & Ors. v. Chairman, Awas Abhiyanta & Ors. Vide order dated 31.5.2005 the Civil Court, while entertaining the Application for interim relief, directed the parties to maintain status quo. The copy of the said order was served upon the District Magistrate to ensure its compliance, but appropriate steps were not taken by him. Being aggrieved, the petitioners filed another application under Section 151, CPC on 27.9.2005 for passing a more effective interim order but the said application is not being disposed of. Hence this petition. 3. Shri Arun Kumar Tiwari, learned counsel for the petitioners has submitted that once the Civil Court passed the order for maintaining status quo, it was the solemn duty of the respondents to ensure the compliance of the said order, and by not passing any order on the representation filed by the petitioners the District Magistrate acted in violation of the order of the Civil Court. The petitioners therefore filed another application under Section 151, CPC which is still pending consideration. Thus, this Court must direct the respondents to ensure the compliance of the order dated 31.5.2005, passed by the Civil Court. 4. On the other hand, Shri C.K. Rai, learned Standing Counsel has vehemently opposed the petition contending that only appropriate remedy for the petitioners is to move an application under Order XXXIX, Rule 2-A, CPC and the application under Section 151, CPC is not maintainable. The petition should therefore be dismissed with the liberty to the petitioners to file an application under Order XXXIX, Rule 2-A, CPC. 5. We have considered the rival submissions made by the learned counsel for the parties and perused the record. 6. Section 151 confers inherent power upon the Civil Court. It cannot be resorted to, to deal with an application for which there is a statutory provision. 5. We have considered the rival submissions made by the learned counsel for the parties and perused the record. 6. Section 151 confers inherent power upon the Civil Court. It cannot be resorted to, to deal with an application for which there is a statutory provision. Thus, it is only in exceptional circumstances where there is no other remedy available under any statutory provisions, that can be taken to Section 151 CPC. Power to grant temporary injunction is under Order XXXIX, Rules 1 and 2, CPC. Court cannot therefore exercise the power and grant injunction under Section 151, C.P.C. (Vide Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993 ; Nain Singh v. Koonwarjee & Ors., AIR 1970 SC 997 ; and State of West Bengal & Ors. v. Karan Singh Binayak, (2002) 4 SCC 188 ). 7. In Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527 it has been held as follows : “There is difference of opinion between the High Courts on this point. One view is that a Court cannot issue an order of temporary injunction if the circumstances do not fall within the provisions of Order XXXIX of the Code: Varadacharlu v. Narasimha Charlu, AIR 1926 Mad 258 ; Govindarajulu v. Imperial Bank of India, AIR 1932 Mad 180 ; Karuppayya v. Ponnuswami, AIR 1933 Mad 500; Murugesa Mudali v. Angamuthu Mudali, AIR 1938 . Mad 190; and Subramanian v. Seetaramma, AIR 1949 Mad 104, the other view is that a Court can issue an interim injunction under circumstances which are not covered by Order XXXIX of the Code, if the Court is of opinion that the interests of justice require the issue of such interim injunction; Dhaneshwar Nath v. Ghanshyam Dhar, AIR 1940 All 185; Firm Bichchha Ram Baburam v. Firm Baldeo Sahai Surajmal, AIR 1940 All 241; Bhagat Singh v. Jagbir Sawhney, AIR 1941 Cal 670 and Chinese Tannery Owners Association v. Makhan Lal, AIR 1952 Cal 560 . We are of opinion that the latter view is correct and that the Court have inherent jurisdiction to issue temporary injunction In circumstances which are not covered by the provisions of Order XXXIX, C.P.C, there is no expression in Section 94 which expressly prohibits the issue of temporary injunction in circumstances not covered by Order XXXIX or by any rule made under the Code. It is well-settled that the provisions of the Code are not exhaustive, for the simple reason that the Legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them. The effect of the expression if it is so prescribed is only this that when the rule prescribes the circumstances in which the temporary injunction can be issued, ordinarily the Court is not to use its inherent powers to make the necessary orders in the interests of justice, but is merely to see whether the circumstances of the case bring it within the prescribed rule. If the provisions of Section 94 were not there in the Code, the Court could still issue temporary injunction, but it could do that in the exercise of its inherent jurisdiction. No party has a right to inherent jurisdiction only when it considers it absolutely necessary for the ends of justice to do so. It is in the incidence of the exercise of the power of the Court to issue temporary injunction that the provisions of Section 49 of the Code have their effect and not in taking away the right of the Court to exercise the inherent power.” 8. In Vareed Jacob v. Sosamma Geevarghese & Ors., AIR 2004 SC 3992 , the Apex Court held that the powers of the Court are inherent and in addition to and complementary to the powers of redressal conferred under C.P.C, but that power cannot be exercised if for the redressal of a particular grievance a particular provision of C.P.C. provides for the remedy, and the Court can also exercise the power under Section 151 if the circumstances so demand to do justice. While deciding the said case, reliance had been placed on Ram Chand & Sons Sugar Mills (P) Ltd. v. Kanhayalal Bhargava, AIR 1966 SC 1899 ; and Jagjit Singh Khanna v. Dr. Rakhal Das Mullick, AIR 1988 Cal 95 . 9. The powers under Section 151, C.P.C. can be exercised for doing justice in such situations when there is no specific provision, i.e., in respect of consolidation of Suits etc. (Vide Chitivalasa Jute Mills v. Jaypee Rewa Cement, AIR 2004 SC 1687 ; and Atma Ram Proprietaries (P) Ltd. v. Federal Motors (P) Ltd., (2005) 1 SCC 705 ). 10. 9. The powers under Section 151, C.P.C. can be exercised for doing justice in such situations when there is no specific provision, i.e., in respect of consolidation of Suits etc. (Vide Chitivalasa Jute Mills v. Jaypee Rewa Cement, AIR 2004 SC 1687 ; and Atma Ram Proprietaries (P) Ltd. v. Federal Motors (P) Ltd., (2005) 1 SCC 705 ). 10. Thus, the question does arise as to whether the application filed by the petitioners under Section 151, C.P.C. is maintainable, or they should move an application under Order XXXIX Rule 2-A, C.P.C. as the provisions of Section 151 C.P.C. can be taken aid of only in a case where there is no remedy available to the applicant under any provision of the CPC. 11. In Sitaram v. Ganesh Das, AIR 1973 All 449 , the Court held as under:- “The purpose of Order XXXIX, Rule 2-A, Civil P.C is to enforce the order of injunction. It is a provision which permits the Court to execute the injunction order. Its provisions are similar to the provisions of Order XXI, Rule 32, Civil P.C. which provide for the execution of a decree for injunction. The mode of execution given in Order XXI, Rule 32 is the same as provided in Rule 2-A of Order XXXIX. In either case, for the execution of the order or decree of injunction, attachment of property is to be made and the person who is to be compelled to obey the injunction can be detained in civil prison. The purpose is not to punish the man but to see that the decree or order is obeyed and the wrong done by disobedience of the order is remedied and the status quo ante is brought into effect. The purpose is not to punish the man but to see that the decree or order is obeyed and the wrong done by disobedience of the order is remedied and the status quo ante is brought into effect. This view finds support from the observations of the Supreme Court in the case of State of Bihar v. Sonabati Kumari, AIR 1961 SC 221 ; while dealing with Order XXXIX, Rule 2(iii)/ Civil P.C. (without the U.P. Amendment) the Court held that the proceedings are in substance designed to effect enforcement of or to execute the order, and a parallel was drawn between the provisions of Order XXI, Rule XXXII and of Order XXXIX, Rule 2 (iii), CP.C. which is similar to Order XXXIX, Rule 2-A. This curative function and purpose of Rule 2-A of Order XXXIX, Civil P.C. is also evident from the provision in Rule 2-A for the lifting of imprisonment, which normally would be when the order has been complied with and the coercion of imprisonment no longer remains necessary. Hence, even if Sitaram had earlier been sent to the civil imprisonment, he would have been released on the tin shed being removed, and it would therefore now serve no purpose to send him to prison. For the same reason, the attachment of property is also no longer needed. The order of the Court below has lost its utility and need no longer to be kept alive.” 12. In State of Bihar v. Rani Sonabati Kumari, AIR 1961 SC 221 , the Constitution Bench of the Hon’ble Supreme Court examined the scope of sub-rule (3) of Rule 2 of Order XXXIX which is analogous to the provisions of Order XXXIX, Rule 2-A, CPC and observed that the purpose of such proceedings is only to give effect to the interim order passed by the civil court. The Apex Court held as under : “Though undoubtedly proceedings under Order XXXIX, Rule 2 (3) Civil Procedure Code have a punitive aspect as is evident from the contemnor 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. 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 XXI, Rule 32 sets out the method by which such decrees......could be executed- and Cl (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 CIs. 4 and 3 respectively of Order XXXIX, Rule 2, and the provisions leave no room for doubt that Order XXXIX Rule 2 (3) is in essence only the mode for the enforcement or effectuation of an order of injunction.” 13. In Samee Khan v. Bindu Khan, AIR 1998 SC 2765 , the Hon’ble Supreme Court held that in exercise of the power under Order XXXIX, Rule 2A, CPC, the Civil Court has a power either to order detention of the disobeying party or attachment of his property for disobedience of the order 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 XXXIX 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 XXXIX Rule 2-A the attachment is a mode to compel the opposite party to obey the order of injunction. 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 XXXIX 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 is obedience.” 14. In Baishnab Pradhan & Ors. v. Guru Charan Pradhan, AIR 2003 Ori 73 , the Court has held that plea that Court should not order demolition and confine its powers only to modalities prescribed under Order XXXIX, Rule 2-A, CPC is not tenable. 15. Thus, it is evident from the aforesaid authoritative pronouncements that the purpose of Order XXXIX, Rule 2-A, C.P.C. is to force the opposite party to obey the order of injunction. In view of the above, in spite of the fact that the Court is meant to do justice and pass any order in exercise of its inherent jurisdiction, it was proper for the petitioners to have filed an application under Order XXXIX, Rule 2-A, C.P.C. 16. Even if the Civil Court passed the effective order on the application filed by the petitioners under Section 151 CPC, there is no guarantee that the respondents shall ensure its compliance, and ultimately, the petitioners may have to resort to the proceedings under Order XXXIX, Rule 2-A, CPC. 17. Be that as it may, as we are of the considered opinion that writ is a discretionary relief and Court may refuse to grant it in an appropriate case, we are not inclined to issue any direction in this case and the petition is dismissed. However, in case petitioners move an application under Order 39, Rule 2A, C.P.C., we request the learned Civil Court to entertain and dispose of the said application strictly in accordance with law. Petition Dismissed. ———