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2009 DIGILAW 190 (JK)

Shamema Sofi v. Gh. Rasool Baba

2009-04-24

SUNIL HALI

body2009
1. The Sub Judge (CJM), Srinagar has vide his order dated 9-8-2008, after allowing the application of respondent-plaintiff seeking assistance for implementing the interim direction passed by the court, has directed the SHO, Police Station, Parimpora, Srinagar to implement the said order. It is under these circumstances, this order has been challenged by the petitioner in this revision petition. 2. I have heard the learned counsel for the parties and perused the record. 3. The plaintiff has filed a suit for perpetual injunction restraining the respondent from interfering with the peaceful possession and in raising of compound wall/ fencing of the suit land measuring one kanal under survey No. 281 Khewat No. 1 situated at Moza Lawapora Tehsil Srinagar. Application for temporary injunction was also filed. In this application, the trial court has passed interim direction dated 5-6-2004 restraining the respondent from interfering in the peaceful possession over the suit land and or preventing him from raising the compound wall till the disposal of the suit. This order has been confirmed by the appellate court vide its order dated 18-8-2004. 4. Respondent-plaintiff filed an application under section 151 read with Order 39 Rule 2-A seeking implementation of the order by the police. First order was passed on 7-3-2007. This order came to be set aside by the High Court in revision petition, which came to be decided in September, 2007. This court directed that the trial court should desist from passing such order and that too without notice to the other side. On the same set of facts, another application came to be filed in which a direction was issued to have the order implemented by the court. This again became the subject matter of challenge before the court in revision petition. The court after hearing the parties, set aside the order. 5. On its fresh consideration, the trial court has vide its order dated 9-8-2008, directed the police to implement the order of the court. The contention raised by the learned counsel for the petitioner is that the courts below while invoking power under section 151 CPC are oblivious to the fact that there is an enabling provision under Order 39 Rule 2-A to pass an appropriate order, where it is shown that the order of the court has been violated. The contention raised by the learned counsel for the petitioner is that the courts below while invoking power under section 151 CPC are oblivious to the fact that there is an enabling provision under Order 39 Rule 2-A to pass an appropriate order, where it is shown that the order of the court has been violated. Recourse to invoke inherent power for seeking implementation of the court order, cannot be exercised in the present case. 6. Order 39 Rule 2-A relates to the consequences of disobedience or breach of injunction by defaulting parties: It provides mechanism to deal with the matter where disobedience is shown to any injunction granted or other order made under rule-1 or rule-2 or breach of any of the terms on which the injunction was granted. The scheme of this rule provides that if a person is found guilty of such disobedience, such person is to be detained in the civil prison, for a term not exceeding three months, unless in the meantime the court directs his release. It cannot be said that while invoking inherent powers under section 151 CPC, recourse to aforementioned provision has not to be resorted to. What is being provided by the aforementioned rules, is the manner in which a person is to be dealt for having violated the order of the court. If the court on determination finds that the breach has been committed, it can order detention of the person. Sub-rule 2 of Rule 2-A of Order 39 reveals that the property of the defaulting party shall also be attached and if the breach continues, the property attached may be sold and out of the proceeds, the court may award such compensation as it deems fit to the injured party. 7. Looking to the import of aforementioned provision, it clearly takes care of the fact that no order of injunction can be defied or violated. Any defiance in this regard, will entail penal consequences as enumerated hereinabove. The court after having determined that the order has been violated, may pass such other order in this regard, which may be just and proper. This may include direction to the police to seek the implementation of the order. Any defiance in this regard, will entail penal consequences as enumerated hereinabove. The court after having determined that the order has been violated, may pass such other order in this regard, which may be just and proper. This may include direction to the police to seek the implementation of the order. This issue is no longer res-integra that after such determination, the courts can pass an appropriate direction in the contempt proceedings to ensure that wrong door is not allowed to enjoy the fruits of his wrong. I am supported by the Judgment of the Apex Court in case titled State of Orissa and another Vs. Aswani Kumar Baliar Singh, reported as (2006) 6 Supreme Court Cases 759. Para-8 of the judgment reads as under: "The learned counsel, however, may be correct in contending that while exercising its contempt jurisdiction, the High Court may, in a given case, issue appropriate direction, although no penal action is taken against the contemnors. But even in respect thereof, a finding would be required to be arrived at to the effect that the contemnors have disobeyed the order of the court. Only when such finding is arrived at, the court may in exercise of its inherent jurisdiction put the parties to the same position as if its order was not violated." 8. In the present case, the effort by both the petitioner and the respondent, is not to proceed with the trial but to seek implementation of the interim direction and its vacation passed by the trial court. As a matter of fact, the case has been filed in 2003 and the proceedings are bogged down in peripheral issues. The respondent has not shown any inclination to take recourse to Order 39 Rule 2-A nor have the courts below shown any sensitivity in these issues by directing the parties to pursue the contempt proceedings. It seems that the directions issued by the trial court from time to time in resorting to seek implementation, are without taking recourse to the provision as laid down by Order 39 Rule 2-A. 9. I, therefore, set aside the order of the trial court and direct it to proceed in the matter under Order 39 Rule 2-A and pass appropriate order after hearing the parties. Let this exercise be completed within a period of two months from the date copy of this order is received. I, therefore, set aside the order of the trial court and direct it to proceed in the matter under Order 39 Rule 2-A and pass appropriate order after hearing the parties. Let this exercise be completed within a period of two months from the date copy of this order is received. Revision petition disposed of alongwith connected CMP(s), if any.