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2008 DIGILAW 195 (KAR)

SRI S. GANGADHAR AND OTHERS v. SRI R. PRAKASH

2008-03-25

S.ABDUL NAZEER

body2008
ORDER Abdul Nazeer, J The unsuccessful defendants have filed this appeal challenging the judgment and decree in O.S. No.1068/1997 dated 23.08.2007 passed by the 11th Addl. City Civil Judge, Bangalore City. The respondent was the plaintiff in the suit. 2. The plaintiff had filed the aforesaid suit for permanent injunction restraining the defendants from interfering with his peaceful possession and enjoyment of the suit schedule property. Along with the plaint, he had filed an application under Order 39 Rules 1 and 2 of Code of Civil Procedure for grant of temporary injunction restraining the defendants from interfering with his peaceful possession and enjoyment of the suit schedule property pending disposal of the suit. 3. It is the case of the plaintiff that the court below had passed the order on 06.02.1997 directing the parties to maintain status quo regarding possession of the suit schedule property. After service of the notice, the defendants have filed their written statement and I.A.2 under Order 39 Rule 2A of the Code of Civil Procedure requesting the court below to take appropriate action against the plaintiff for violating the interim order dated 06.02.1997. The court below has passed a common order decreeing the suit and dismissing I.A.No.2 filed by the defendants. 4. In this appeal, the defendants have not only challenged the said judgment and decree, but also the dismissal of the application IA.No.2. The reliefs sought for by the plaintiff in the appeal is as under: “Wherefore, the appellants most respectfully pray that this Hon’ble Court may be pleased to call for the entire records and set aside the judgement and decree dated 23.08.2007 passed in O.S. No.1068/I997 by the Xl Addl. City Civil Judge, Bangalore City (CCH-8), and dismiss the suit of the plaintiff with exemplary costs and allow the interlocutory applications filed under Order XXXIX Rule 2A r/w. sec. 151 of CPC filed by the defendants and punish the plaintiff accordingly, in the interest of justice and equity.” 5. The Registry has raised an objection with regard to the relief sought for in the appeal. The Registry is of the opinion that the appellant cannot challenge the order on IA.No.2 in this appeal. I have heard the learned Counsel for the parties in this regard. 6. The Registry has raised an objection with regard to the relief sought for in the appeal. The Registry is of the opinion that the appellant cannot challenge the order on IA.No.2 in this appeal. I have heard the learned Counsel for the parties in this regard. 6. Learned Counsel for the appellants/defendants would contend that the defendants have filed the application IA.2 for initiating action against the plaintiff for violation of the interim order dated 6.2.1991. The court below ought to have decided the said application before deciding the suit on merits. The court below has erred while clubbing the said application along with the main. It is further contended that since the dismissal of the application affects the decision of the case, the same can be urged in the appeal filed under Section 96 of the CPC having regard to Section 105 of the CPC. 7. On the other hand, learned Counsel appearing for the respondent would contend that the right of appeal is a creature of the statute. The dismissal of the application filed under Order 39 Rule 2A of the CPC by the appellants does not affect the decision of the case on merits. Therefore, they cannot challenge the dismissal of the said application along with the appeal filed under Section 96 of the CPC. The appellants have a separate remedy of filing of the appeal challenging the order on I.A.No.2 under Order 43 Rule 1 (r) of the CPC. They have to file a separate appeal challenging the dismissal of I.A.No.2. 8. Having heard learned Counsel for the parties, the question that arises for consideration is, whether a party aggrieved by the dismissal of the application under Order 39 Rule 2A of the CPC can challenge the same in an appeal filed under Section 96 of the CPC against the original decree without recourse to a separate appeal as provided under Order 43 Rule 1(r) of the CPC. 9. Sub-section (1) of Section 105 of the CPC states that save as otherwise expressly provided, no appeal shall lie from any order made by the Court in exercise of its original or appellate jurisdiction, but where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal. The words ‘affecting the decision of the case’ employed in this Section means affecting the decision of the case on merits. It is clear that a party need not file an appeal against all interlocutory matters and he can challenge the same in an appeal filed from the original decree if that interlocutory order has affected the decision of the case. Only such order, which affects the decision of the case, alone can be challenged along with the appeal filed against the original decree. Even if there is any error, defect or irregularity in any other order, it cannot be challenged by the aggrieved party along with the appeal against the original decree. 10. The purport of Order 39 Rule 2-A of the CPC is to see that dignity of the Court is not violated. If anybody acts in breach of the order intentionally, he has to be dissuaded by taking action under Order 39 Rule 2-A. The order passed under Order 39 Rule 2-A is separate and independent and it may not have any bearing on the decision of the case. The proceeding under this provisions is in the nature of a criminal proceeding as the person against whom such proceeding is initiated is liable to be detained in prison if it is found that he had committed breach of the said order. Since a punishment is imposed and a person is sent to jail, the principle on which these proceedings are decided are entirely different. Here, the principle of criminal law will apply. This has nothing to do with the final decision of the case. The principle on which a civil suit is decided is different, as here decision on the issues arising out of the pleadings is taken on the basis of preponderance of evidence. The right of appeal being a creature of statute, its scope must be determined by reference of the provisions of the statute conferring it. Even if an application under Order 39 Rule 2-A was considered and disposed of along with the suit, the order passed thereunder would be distinct and separate and an appeal would lie under Order 43 Rule 1 (r) of the CPC. The Kerala High Court in an almost similar matter in Chorakandan @ Rayyappadan Sanku and Others Vs. Even if an application under Order 39 Rule 2-A was considered and disposed of along with the suit, the order passed thereunder would be distinct and separate and an appeal would lie under Order 43 Rule 1 (r) of the CPC. The Kerala High Court in an almost similar matter in Chorakandan @ Rayyappadan Sanku and Others Vs. Antony, has held that even if the petition under Order 39 Rule 2A of the CPC was considered and disposed of along with the suit, the order passed therein would be distinct and separate and an appeal would lie under Order 43 Rule l(r) of the CPC. The order passed under Order 39 Rule 2A had not affected the decision of the case. Therefore, the same cannot be a ground for objection in the memorandum of appeal. Section 105 of the CPC expressly prohibits such recourse. Therefore, the Registry is right in holding that the appellant cannot challenge the dismissal of IA.No.2 along with the appeal. 11. The submission of the learned Counsel for the appellants that the court below was not justified in deciding the application-IA.No.2 along with the main is well founded. The purpose of Rule 2A Order 39 is to prevent breach of the order of the Court. Orders given by the Court are to be followed and they are meant to be followed. If anybody tries to take law into his own hands and acts in breach of the order intentionally and purposefully knowing the order fully well, he has to be dissuaded by taking action under Order 39 Rule 2A. The application alleging that the party had committed breach of an order has to be decided on the basis of the evidence. However, final decision of the case may stand on a separate footing. When an application is filed under Order 39 Rule 2A of the CPC complaining disobedience and for violation of an order of the Court, such an application has to be taken up by the Court as expeditiously as possible. Such an application should get priority by the Court. K.Seshappa Vs. St. Francis Xavier Church, Chikkaballapur. 12. In view of the above discussions, the office objection is sustained. The appellants are directed to delete the prayer in the memorandum of appeal in so far as it relates to the challenge of the Order on IA.No.2. Such an application should get priority by the Court. K.Seshappa Vs. St. Francis Xavier Church, Chikkaballapur. 12. In view of the above discussions, the office objection is sustained. The appellants are directed to delete the prayer in the memorandum of appeal in so far as it relates to the challenge of the Order on IA.No.2. However, liberty is reserved to the appellants to challenge the said order separately under Order 43 Rule I (r) of Code of Civil Procedure. This order should not be construed as expressing any opinion on the merits of the matter.