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2012 DIGILAW 258 (UTT)

Tanvir v. Ejazul Hassan @ Sultan Chishti

2012-06-11

V.K.BIST

body2012
JUDGMENT : Present contempt petition has been filed by the petitioner under Section 12 of the Contempt of Courts Act with following prayer: “It is, therefore, most respectfully prayed that it is expedient in the interest of justice that this Hon’ble Court may graciously be pleased to summon the respondents in person and to punish them for deliberately flouting the order dated 06.02.2006 passed by this Hon’ble Court in Second Appeal No.77 of 2005 “Ejazul Hassan @ Sultan Chishti & others vs Tanveer & others” so that it may act as a deterrent precedent for the other erring citizens, failing which the applicant/petitioner will suffer irreparably, or may be pleased to pass such further order as this Hon’ble Court may deem fit and proper under the circumstances of the case.” 2. The facts which have given rise to this petition are that plaintiffs/respondents instituted suit no.26 of 1984 before the court of Civil Judge (Junior Division), Roorkee, District Haridwar on 26.07.1984. Defendant/petitioner filed his written statement and contested the suit on merit. The plaintiffs/respondents also filed injunction application, which was heard by the Civil Judge (Junior Division) and an order was passed on 31.03.1993 granting interim injunction in favour of the plaintiffs/respondents. Civil Appeal No.18 of 1998 filed by the defendant/petitioner was allowed on 07.10.2005 as a consequence, the suit of the plaintiffs/respondents was dismissed. The plaintiffs/respondents filed Second Appeal No.77 of 2005 before this Court alongwith stay application no.557 of 2006. On 06.02.2006, this Court passed an order staying the operation of the order dated 07.10.2005 passed by the Additional District Judge in Civil Appeal No.18 of 1998 till further orders of the Court. This Court further directed the parties to maintain status quo as of that day. 3. The contention of Shri M.S. Tyagi, counsel for the petitioner is that though the Second Appeal was listed on number of occasions but same could not be argued and the respondents taking advantage of the fact, started raising construction on the land in dispute in violation of the order dated 06.02.2006. He submitted that this action of respondents is clear cut violation of order dated 06.02.2006 passed by this Court in Second Appeal No.77 of 2005 and thus, they are liable to be punished for flouting the order of the Court. 4. He submitted that this action of respondents is clear cut violation of order dated 06.02.2006 passed by this Court in Second Appeal No.77 of 2005 and thus, they are liable to be punished for flouting the order of the Court. 4. On the other hand, Shri S.K. Jain, learned counsel for the respondents raised objection regarding maintainability of the contempt petition and submitted that in the event of breach of interim order in Second Appeal, only remedy available to the petitioner is under Order XXXIX Rule 2-A of C.P.C. He prayed that contempt petition should be dismissed on this ground alone. He also submitted that Second Appeal is a continuation of suit, therefore, provision of Order XXXIX Rule 2-A will apply and trial court is competent enough to tackle the contempt matter. He further submitted that even respondent nos.3 & 4 are not party in the suit, therefore, no contempt proceedings can be initiated against them. He contended that in the present Second Appeal an interim order/injunction order was passed by the Court on 06.02.2006 and in case there is any breach or disobedience of the order passed by this Court, for disobedience of the same, the procedure is provided under Order XXXIX Rule 2-A of C.P.C. and petitioner should have availed that remedy. 5. In rejoinder, Shri M.S. Tyagi submitted that provision of Order XXXIX Rule 2-A is in pari materia with the section 12 of the Contempt of Courts Act, 1972 and, therefore, this contempt petition is maintainable. 6. In the present matter, an interim injunction/order has been granted by this Court on 06.02.2006 in Second Appeal No.77 of 2005. 5. In rejoinder, Shri M.S. Tyagi submitted that provision of Order XXXIX Rule 2-A is in pari materia with the section 12 of the Contempt of Courts Act, 1972 and, therefore, this contempt petition is maintainable. 6. In the present matter, an interim injunction/order has been granted by this Court on 06.02.2006 in Second Appeal No.77 of 2005. In civil cases for breach of order, the procedure is provided under Order XXXIX Rule 2-A of C.P.C. Same is reproduced below: “Order XXXIX Rule 2-A: (1) Consequence of disobedience or breach of injunction: In the case of disobedience of 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 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.” 7. The scope of Order XXXIX Rule 2-A has been considered by different courts from time to time. A Constitutional Bench of the Hon’ble Supreme Court in State of Bihar vs. Rani Sona Bati Kumari, AIR 1961 SC 221 has held that the said provision deals with wilful defiance of the order passed by the Civil Court. The Allahabad High Court in the matter of S.G. Pagaree vs. Zonal Manager, Food Coropration of India, New Delhi and others reported in 1987, AWC, 506, has held that where alternative remedy under Order XXXIX Rule 2-A C.P.C. is available, proceeding under the contempt Courts Act should not be taken. Similarly, in the case of Pratap Narain vs. Smt. Nomita Roy and others, reported in 1984, AWC, 567, it was held that remedy under Order XXXIX Rule 2-A C.P.C. is far more adequate and satisfactory remedy as disobedience of an injunction order of the Court below is involved. In the matter of Must Ram & another vs Ram Abhilakh & others reported in 2011(3) ARC 92 the Allahabad High Court has held that for the breach of interim order/injunction in Second Appeal, Contempt Petition is not maintainable. 8. In the matter of Must Ram & another vs Ram Abhilakh & others reported in 2011(3) ARC 92 the Allahabad High Court has held that for the breach of interim order/injunction in Second Appeal, Contempt Petition is not maintainable. 8. In view of above discussion, it is clear that proceedings under Order XXXIX Rule 2-A of the C.P.C. are analogous to proceedings under the Contempt of Courts Act, 1972. The provision under Order XXXIX Rule 2-A of the C.P.C. deal with the wilful defiance of the order passed by the Civil Court. The special provision of C.P.C. shall prevail over the general law of contempt contained in the Contempt of Courts Act, 1972. Therefore, it is held that alleged violation of interim order dated 08.06.2006 in Second Appeal No.77 of 2005, the petitioner has effective alternative remedy under Order XXXIX Rule 2-A of the C.P.C. and petition under Section 12 of the Contempt of Courts Act is not maintainable. 9. Contempt petition is dismissed. 10. No order as to costs.