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2008 DIGILAW 1139 (AP)

Lakkineni Venkateswara Rao v. Lakkineni Ramesh

2008-12-31

G.YETHIRAJULU

body2008
JUDGMENT :- This appeal has been preferred by the first defendant in O.S. No.41 of 2004 (old O.S. No.5 of 2001) on the file of the Senior Civil Judge, Sathupalli. Originally, the Plaintiff filed the suit before the Vacation Judge (District Judge) Khammam for partition of the suit schedule property into three equal shares and to allot one such share to him and for profits and he also filed an application to restrain the respondents not to alienate the suit schedule property. The Vacation Judge granted ad-interim injunction on 07-05-2001 in I.A. No.29 of 2001 restraining respondents 1 to 3 from alienating the petition schedule land. The suit was transferred to regular Court from Vacation Civil Judge and it was renumbered as O.S. No.4 of 2001. The Principal District Judge, Khammam, made absolute the injunction order passed by the Vacation Civil Judge on 01-12-2003 in I.A. No.1825 of 2001 (I.A. No.29 of 2001). The suit was later transferred to Senior Civil Judge, Sathupalli in Khammam District and renumbered as O.S. No.41 of 2004. In the said Court the plaintiff filed I.A. No.70 of 2005 under Order 39, Rule 2-A read with Section 151 of the Code of Civil Procedure praying to order arrest of the defendant No.1 and to detain him in civil prison for violation of the injunction order granted by the Court in I.A. No.1825 of 2001. The Senior Civil Judge, Sathupalli, allowed the said application and directed to issue arrest warrant against defendant No.1 and to commit him to civil prison by 26-10-2005. 2. Being aggrieved by the order of the Senior Civil Judge, Sathupalli, the present miscellaneous appeal has been preferred by the first defendant. 3. The learned counsel for the appellant-first defendant submitted that as per Order 39, Rule 2-A of the Code of Civil Procedure, the Court, which passed the order alone is entitled to take action for disobedience of the orders of the Court and no other Court has any jurisdiction to pass such orders. As the District Judge, Khammam, passed the injunction order, the Senior Civil Judge’s Court at Sathupally is not competent to pass order under Order 39 Rule 2-A, therefore, the order is liable to be set aside. 4. As the District Judge, Khammam, passed the injunction order, the Senior Civil Judge’s Court at Sathupally is not competent to pass order under Order 39 Rule 2-A, therefore, the order is liable to be set aside. 4. The learned counsel for the respondent submitted that when the suit was filed before the vacation Civil Court, it was entertained and subsequently it was sent to the District Court, which has jurisdiction to entertain the suit and the District Court passed the orders and subsequently on account of enhancement of the pecuniary jurisdiction of the Sub-Court, the matter was transferred to Senior Civil Judge, Sathupally within whose jurisdiction the properties are situated. Therefore, Senior Civil Judge’s Court is the same Court which passed the order for the purpose of jurisdiction and it cannot be treated as a different Court, when the matter is transferred to that Court on administrative grounds and he further submitted that since the competent Court passed the orders, it cannot be assailed and the appeal is liable to be dismissed. 5. In the light of rival contentions, the point for consideration is Whether the Senior Civil Judge, Sattupalli is not competent to pass order under Order 39, Rule 2A of the C.P.C. and Whether order is liable to be set aside? 6. The suit was originally filed on 05-05-2001 before the Vacation Civil Judge at Khammam and the suit was numbered as O.S. No.5 of 2001. The value of the suit for the purpose of pecuniary jurisdiction was assessed at Rs.6,48,385/-. As on the date of filing of the suit, the pecuniary jurisdiction of Sub-Court was Rs.5,00,000/-, therefore, it was rightly transferred to the file of the Principal District Judge at Khammam immediately after summer vacation and it was re-numbered as O.S. No.4 of 2001. The Principal District Judge, Khammam, passed the order on 01st December, 2003 making the interim injunction granted by the Vacation Civil Court on 07-05-2001 absolute. The Principal District Judge, Khammam, passed the order on 01st December, 2003 making the interim injunction granted by the Vacation Civil Court on 07-05-2001 absolute. On 15-07-2004, during the course of inspection, it was noticed that on the basis of the value of the suit, the suit ought to have been filed before the Sub-Court, therefore, on the objection raised by the High Court, the District Judge returned the plaint for presentation before the proper Court, therefore, the plaint was returned under Order 7 Rule 10-A of the Code of Civil Procedure on 15-07-2004 with a direction to the plaintiff to represent the suit before the proper Court within seven days. 7. In pursuance of the direction of the District Court on administrative side, the suit was presented before the Senior Civil Judge, Sathupalli and it was re-numbered as O.S. No.41 of 2004. Subsequently, the plaintiff filed I.A. No.70 of 2005 under order 39, Rule 2-A for detention of the defendant No.1 in civil prison for violating the injunction order passed by the District Judge, Khamam. In the said application, the plaintiff averred that the defendants 1 and 2 are his parents and defendant No.3 is his brother. The defendant No.1 is the Manager and kartha of the joint family and the joint family is having landed properties. Out of them, some are ancestral properties devolved on the first defendant from his father and some of them are self-acquired by the first defendant with the nucleus and usufruct of the ancestral properties. The plaintiff filed the suit for partition against the defendants in respect of the suit schedule properties and also filed interlocutory application for grant of temporary injunction restraining the defendants from alienating the property. Ad-interim injunction was granted by the vacation civil Judge, which was confirmed by the District Judge on 01-12-2003 by making the injunction absolute. The defendants did not prefer any revision or appeal against the order passed by the District Judge. Therefore, the order became final and is in force. Later, on 15-07-2004 the District Judge returned the plaint for presentation before the appropriate Court and the plaintiff re-submitted the plaint before the Senior Civil Judge, Sathupally on 21-07-2004 and it was re-numbered as O.S. No.41 of 2001. The first defendant intentionally disobeyed the injunction orders granted by the Court by alienating part of item No.8 of ‘A’ schedule property. Later, on 15-07-2004 the District Judge returned the plaint for presentation before the appropriate Court and the plaintiff re-submitted the plaint before the Senior Civil Judge, Sathupally on 21-07-2004 and it was re-numbered as O.S. No.41 of 2001. The first defendant intentionally disobeyed the injunction orders granted by the Court by alienating part of item No.8 of ‘A’ schedule property. The defendant No.1 alienated an extent of Acs.6.00 out of Acs.15.30 guntas in Sy.No.338/2 of Korlagudem revenue village which is item No.8 of plaint-A schedule property to one Seelam Venkata Narayana Reddy of Karralapdu village through a registered sale deed dated 12-01-2005 for a consideration of Rs.3,30,000/- and delivered possession to him. The first defendant also alienated an extent of Acs.2.00 out of Acs.15.30 guntas in Sy.No.338/2 of Korlagudem village in item No.8 of A schedule property to one Seelam Venkata Satyavathi, W/o Venkata Narayana Reddy of Karralapadu village through registered sale deed dated 12-01-2005 for a consideration of Rs.1,10,000/- and delivered possession of the same. He came to know about the alienations and obtained certified copies of the sale deeds and filed the application for violation of the injunction orders passed in I.A.No.29 of 2001 (I.A. No.1825 of 2001) under Order 39, Rule 2-A of the Code of Civil Procedure. 8. The first defendant filed a counter with the following averments in brief: The allegations made in the petition are false and the petitioner is put to strict roof of the same. In December, 1999 the first defendant developed heart ailment. He was advised to undergo Angioplasty. In view of his health condition, he kept part of his self-acquired property to be dealt with. Later, there was partition of other properties between himself, the plaintiff and the third defendant as per the memo of partition dated 12-12-1999 duly signed by all the parties. The land situated in Sy.No.388/2 of Korlagudem village is one such item, which is his self-acquired property and he kept it for himself. The first defendant had to clear all the loans obtained from the Sugar Factory, the Cooperative Bank and SBI at Tiruvur. After effecting partition in the last week of December, 1999, he had joined in hospital at Vijayawada for control of sugar and for other tests before undergoing Angioplasty and later he was shifted to NIMS at Hyderabad for the purpose of Angioplasty and he was there in the hospital till 17-01-2000. After effecting partition in the last week of December, 1999, he had joined in hospital at Vijayawada for control of sugar and for other tests before undergoing Angioplasty and later he was shifted to NIMS at Hyderabad for the purpose of Angioplasty and he was there in the hospital till 17-01-2000. Taking advantage of the hospitalization of the first defendant for a long period, the plaintiff approached Seelam Venkata Narayan Reddy and offered to sell part of the land in Sy.No.388/2 of Korlagudem Village by misrepresenting that the funds were needed for the treatment of the first defendant and made him to believe that the plaintiff has authorization from the first defendant to sell and accordingly sold an extent of Acs.6.00 for a total consideration of Rs.3,00,000/- and executed a self-scribed agreement of sale in favour of Seelam Venkat Narayana Reddy on 25-12-1999. Subsequently, the plaintiff collected the balance sale consideration from the purchaser. For a long time, the plaintiff did not disclose the sale of the said property to him. After a long lapse of time it is only through the purchaser Seelam Venkat Narayana Reddy, he came to know about the transaction and payment of the entire sale consideration to the plaintiff, when the said vendee approached for execution of the registered sale deed in his favour. The plaintiff with the sale proceeds of the said land purchased an extent of Acs.4.36 guntas in Sy.No.73/A situated at Lala Banjar, hamlet of Laxmipura Village from one Madhava Reddy under registered sale deed dated 26-02-2001. Though the first defendant did not agree to sell the property and did not execute the agreement of sale, to keep up the respect and image of the family, he executed the sale deed in favour of Seelam Venkata Narayana Reddy for an extent Acs.6.00 in Sy.No.388/2 of Korlagudem Village on 12-01-2005. By suppressing the real facts, the plaintiff filed the suit for partition by including his self-acquired property and the present application has been filed for the arrest of the first defendant with distorted version, therefore the petition is liable to be dismissed. 9. The lower Court allowed the said application by observing that the first defendant admitted in his counter that he sold away item No.8 of the plaint-A schedule property. 9. The lower Court allowed the said application by observing that the first defendant admitted in his counter that he sold away item No.8 of the plaint-A schedule property. When the order was passed in the injunction petition after hearing both sides, he has no right to dispose of any of the items of the suit schedule property without the permission of the Court. The first defendant did not file any document in support of his contention that he sold away the property for the purpose of treatment. Since the first defendant sold away Item No.8 of the plaint A schedule property under Exs.A1 and A2 sale deeds, it amounts to violation of the order of the Court under Order 39 Rule 2A of the Code of Civil Procedure, therefore, he is liable to be punished. 10. The learned counsel for the appellant Sri D. Madhava Rao submitted that the lower Court ought to have considered the circumstances under which the appellant was compelled to execute the sale deed. The sale transaction was entered by the appellant for the sake of prestige of the family, but not with a view to disobey the orders of the Court. The document filed by the appellant would indicate that sale consideration was received by the plaintiff by selling away the property to third party, therefore, the appellant did not violate the injunction order passed by the lower Court. Hence, the order of the lower Court is liable to be set aside by allowing the appeal. 11. The learned counsel for the appellant during the course of arguments laid stress mostly on the competence of the Senior Civil Judge, Sathupalli, in passing the impugned order by contending that as per Order 39 Rule 2A, the Court which passed the injunction order can alone pass order under Rule 2-A (1) of the Code of Civil Procedure and as the interim injunction was granted by the Vacation Civil Judge and confirmed by the District Judge by allowing the application and as the impugned order was passed by the Senior Civil Judge, Sathupalli, it cannot be treated as the same Court, which passed injunction order, therefore, the order passed by the Senior Civil Judge, Sathupalli is not in accordance with Rule 2-A of the Order 39 of the Code of Civil Procedure, therefore, it is liable to be set aside. During the course of enquiry, no documents were marked by either side, but the first defendant admitted in his written statement that he executed sale deeds to keep up the image and prestige of the family, though the sale consideration was received by the plaintiff, but no material was produced to show that the plaintiff received the sale consideration and he nominally executed the sale deeds in favour of the vendee. 12. The learned counsel for the appellant relied on certain judgments to convince this Court that the Court which passed the injunction order can alone pass order under Order 39 Rule 2-A of the Code of Civil Procedure. 13. In Jaharuddin Vs. Hari Charan Poddar and others AIR 1914 Calcutta 815 a Division Bench of Calcutta High Court considered the scope of Order 39 Rule 2 (3) of the Code of Civil Procedure and held that Order 39 Rule 2, sub-R. (3), enacts that in case of disobedience of injunction, the Court granting the injunction may punish the contempt. The Court further observed that where an order for a temporary injunction was passed by a Munsif against the defendant in a suit, and after it had been passed, the suit was transferred to the file of the District Judge, who made an order for the attachment of the defendant’s property and his imprisonment, as the penalty for his having disobeyed the injunction after the transfer of the case. The Court held that the order of the District Judge was without jurisdiction, as the law did not authorize the Judge who had not granted the injunction to punish for its disobedience, merely because the suit in which it had been granted had been transferred to his file. 14. In K.M.Joseph Vs. St.Mary’s Jacobite Syrian Orthodox Church and others AIR 2004 Karnataka 474 an injunction was granted by Karnataka High Court. The plaintiff filed an application before the City Civil Court for violation of injunction order Under Order 39 Rule 2A of the Code of Civil Procedure. The Karnataka High Court held that if the application under Order 39 Rule 2A of the Code of Civil Procedure came to be filed before the Court, the City Civil Court was right in rejecting the I.A., for admittedly, that injunction was not granted by that Court. 15. The Karnataka High Court held that if the application under Order 39 Rule 2A of the Code of Civil Procedure came to be filed before the Court, the City Civil Court was right in rejecting the I.A., for admittedly, that injunction was not granted by that Court. 15. In the light of the above legal position projected by the appellant and in the light of the facts and circumstances of the case, it has to be considered whether the Senior Civil Judge, Sathupalli can be treated as the same Court for the purpose of passing orders under Order 39 Rule 2A, when the injunction orders were passed by the Vacation Civil Judge and confirmed by the District Judge. 16. It is an undisputed fact that the suit was filed before vacation Civil Judge and on point of jurisdiction it was transferred to the Principal District Judge, Khammam. Subsequently, on an objection raised by the High Court, the plaint was returned for presentation before the appropriate Court and the plaintiff presented the plaint before the Senior Civil Judge, Sathupalli and as the first defendant sold away item No.8 of the plaint-A schedule, after the injunction order was passed by the District Judge restraining him from alienating the property, the application was filed before the Senior Civil Judge, Sathupalli for violation of injunction order under Order 39 Rule 2A of the Code of Civil Procedure. 17. The decision of the Calcutta High Court was rendered prior to the introduction of Rule 2A of Order 39 C.P.C. Sub-Rule (3) of Rule 2 of Order 39 provides that in case of disobedience or breach, the Court granting an injunction may punish the violation for contempt, therefore, the Calcutta High Court rendered a judgment by holding that the Court which granted injunction may punish the contempt. In Karnataka Judgment the High Court granted injunction and the application for violation of injunction was filed before the City Civil Court, therefore, the Karnataka High Court held that the application before the City Civil Court is not maintainable. The above decisions are, therefore, not applicable to the facts of the present case. There is a judgment about the rule position subsequent to the introduction of Rule 2A in the Code. Rule 2A was added to provide consequences of breach of an injunction issued under Rule 1. The above decisions are, therefore, not applicable to the facts of the present case. There is a judgment about the rule position subsequent to the introduction of Rule 2A in the Code. Rule 2A was added to provide consequences of breach of an injunction issued under Rule 1. There exists controversy as to whether under the existing provisions a Court to which the suit is transferred can punish disobedience of an injunction issued by the predecessor Court. The new Rule 2A provides that the transferee Court can also exercise this power. 18. Rule 2A of Order 39 of the Code of Civil Procedure reads as follows: “2A.Consequence of disobedience or breach of injunction.—(1) In the case of disobedience of any injunction granted or other order made under rule 1 or 2 or breach of any of the terms on which the injunction was granted or the order made, 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.” 19. The wording used in the above provision that the Court granting injunction or making the order or any Court to which the suit or proceeding is transferred may pass an order under Order 2A (1) is an answer to the contention raised by the appellant that the transferee Court can also pass the order for disobedience or breach of injunction. 20. In Tayabbhai M. Bagasarwalla and another v. Hind Rubber Industries Pvt. Ltd., AIR 1997 SC 1240 the Supreme Court held “where interim order is passed pending decision on the question of jurisdiction, it has to be enforced. 20. In Tayabbhai M. Bagasarwalla and another v. Hind Rubber Industries Pvt. Ltd., AIR 1997 SC 1240 the Supreme Court held “where interim order is passed pending decision on the question of jurisdiction, it has to be enforced. Even if the question of jurisdiction is decided against the plaintiff, the Court has power to punish for violation of interim order, provided the violation is committed before the decision of the Court on the question of jurisdiction.” 21. The express provision of the Code and the decision of the Supreme Court make the position very clear that the transferee Court or the Court which is contended to have no jurisdiction to entertain the suit can also pass an order under Order 39 Rule 2A of C.P.C. for disobedience of the injunction order, therefore, the order passed by the lower Court is perfectly legal and the contention raised by the learned counsel for the appellant is devoid of any force. 22. In the light of the foregoing discussion, the appeal is dismissed as devoid of merits by confirming the order passed by the lower Court. No order as to costs.