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2013 DIGILAW 374 (BOM)

Vinod s/o Babarao Rode v. District Judge

2013-02-14

VASANTI A.NAIK

body2013
JUDGMENT : Rule. Rule made returnable forthwith. The petition is heard finally with the consent of the learned counsel for the parties. By this petition, the petitioners impugn an order passed by the trial court on 15.10.2010, allowing an application filed by the respondent no. 2-plaintiff under Order 39 Rule 2A of the Code of Civil Procedure and directing that the petitioners be sent to civil prison for a period of one month for breach of injunction order dated 21.01.2002. The petitioners also challenge the judgment passed by the District Judge, Amravati. on 2.3.2012, dismissing the appeal filed by the petitioners against the impugned order dated 15.10.2010. One Atmaram Bahadursingh Panjabi was the original plaintiff. The respondent no.2 is the legal heir of Atmaram. In the year 2001, Atmaram filed a civil suit against the petitioners for declaration, injunction and cancellation of the sale deed. An application was filed by Atmaram under Order 39 Rule 1 & 2 of the Code of Civil Procedure for temporary injunction restraining the petitioners from alienating the suit property or creating any third party interest therein during the pendency of the suit. The trial court granted an injunction in favour of Atmaram on 21.1.2002. Atmaram expired during the pendency of the proceedings in the year 2003 and the respondent no.2, his legal heir, was brought on record. During the pendency of the suit, the petitioners sold the suit property to a third party by a registered sale deed dated 22.10.2007. On securing knowledge of the same, the respondent no. 2 filed Misc. Judicial proceedings under Order 39 Rule 2A of the Code of Civil Procedure for initiating action against the petitioners for breach of injunction. The petitioners filed the reply to the application and submitted that they were not aware of the order of injunction. It was stated in the reply that neither Atmaram nor the counsel for the petitioners had informed them about the said order. The parties tendered the evidence and on an appreciation of the same, the trial court allowed the application filed by the respondent no. 2 and sent the petitioners to civil prison for a period of one month for the breach of injunction order dated 21.1.2002. Being aggrieved by the said order the petitioners filed an appeal before the District Judge. The parties tendered the evidence and on an appreciation of the same, the trial court allowed the application filed by the respondent no. 2 and sent the petitioners to civil prison for a period of one month for the breach of injunction order dated 21.1.2002. Being aggrieved by the said order the petitioners filed an appeal before the District Judge. The learned District Judge-2, Amravati, however, by the impugned judgment dated 2.3.2012 dismissed the appeal filed by the petitioners. Shri V.M. Deshpande, the learned counsel for the petitioners, submitted that both the courts erroneously held that the petitioners were aware of the order of injunction dated 21.1.2002, though there was no evidence whatsoever to prove the said fact. According to the learned counsel, it was not the case of the respondent no.2 in the Misc. Judicial Proceedings that the petitioners had knowledge of the order of injunction dated 21.1.2002. According to the learned counsel, though the petitioners had categorically stated on oath that they were not aware of the order dated 21.1.2002, the respondent no.2 had failed to cross-examine the petitioners on the said statement and the statement of fact made by the petitioners went unchallenged. It is submitted that the courts committed an error in holding that the petitioners had knowledge of the order only because they had filed the written statement on 30.1.2002 i.e. after passing of the order of injunction on 21.1.2002. The learned counsel submitted that the proceedings under Order 39 Rule 2A of the Code of Civil Procedure are in the nature of criminal proceedings and hence the principles of criminal law would apply and it would be necessary for the person filing an application under Order 39 Rule 2A of the Code of Civil Procedure to establish beyond any shadow of doubt that the defendants had disobeyed the injunction order even though they had full knowledge of the same. The learned counsel relied on the judgments reported in AIR 1998 All 228 ( Gyan Chanbd Jain and others Vs. Xiiith Addl. District and others) and 2004 (2) Kar L J 274 (Smt. Lakshmamma Vs. K.S. Sheshanna ) to substantiate his submission. The learned counsel relied on the judgments reported in AIR 1998 All 228 ( Gyan Chanbd Jain and others Vs. Xiiith Addl. District and others) and 2004 (2) Kar L J 274 (Smt. Lakshmamma Vs. K.S. Sheshanna ) to substantiate his submission. Shri Chandurkar, the learned counsel for the respondent no.2 supported the impugned order and submitted that the courts rightly held that the petitioners had knowledge of the order dated 21.1.2002 as they were represented by a counsel in the court and had filed the written statement on 30.1.2002 after the order of injunction was issued on 21.1.2002. According to the learned counsel, Atmaram had expired in the year 2003 and on 7.4.2004 the petitioners had filed a reply to the application filed by the respondent no. 2 under Order 22 Rule 3 & 4 of the Code of Civil Procedure. It is submitted that it is clear from the participation of the petitioners in the suit filed by the respondent no. 2 that the petitioners were aware of the order of injunction dated 21.1.2002. It is submitted that when the parties are represented by counsel, it is not necessary for the party in whose favour the injunction order is passed, to communicate the same to the party against whom the same is ordered. The learned counsel relied on the judgments reported in AIR 1949 Madras 362 SamasundaraMudali and others Vs. Thiruppathuran alias Nagappa Mudali and others), AIR 1945 Nagpur 134 ( Pannalal Bose Vs. Seth Shreeram Daluram Agarwala and another) and 1998 (2) Mh.L.J. 619 (Ishwar Naidu Vs. Municipal Corporation of Greater Bombay and others) to substantiate his submission. It is submitted that the petitioners are medical practitioners and they cannot be heard to say that they were unaware of the order of injunction dated 21.1.2002. Shri Joshi, the learned Assistant Govt. Pleader, appearing on behalf of the respondent no.1 supported the impugned orders and submitted that in the facts and circumstances of the case, the courts had rightly sent the petitioners to civil prison for breach of order of injunction dated 21.1.2002. On hearing the learned counsel for the parties and on a perusal of the impugned order and judgment, it appears that there was no reason whatsoever for the trial court to allow the Misc. On hearing the learned counsel for the parties and on a perusal of the impugned order and judgment, it appears that there was no reason whatsoever for the trial court to allow the Misc. application filed by the respondent no.2 for taking action against the petitioners under Order 39 Rule 2A of the Code of Civil Procedure. It is no doubt true that an order of injunction was passed against the petitioners on 21.1.2002 restraining the petitioners from alienating the suit property or creating third party interest therein. It is also true that the petitioners were represented by a counsel when the order of injunction was passed on 21.1.2002. It is, however, necessary to note that it is not the case of the respondent no. 2 in the application under Order 39 Rule 2A of the Code of Civil Procedure that the petitioners had knowledge about the order dated 21.1.2002 and despite the knowledge they had sold the suit property to a third party during the pendency of the suit. It is only stated in the application that in spite of the order of injunction dated 21.1.2002, the petitioners had sold the property on 22.10.2007. The defence of the petitioners was that they were unaware of the order of injunction dated 21.1.2002. It was their specific case that neither their counsel nor Atmaram informed them about the order dated 21.1.2002. It is no doubt true as submitted on behalf of the Respondent no.2 that it was not necessary for Atmaram to have informed the petitioners about the order dated 21.1.2002, as they were represented by a counsel. However, as a matter of fact, for proving that the petitioners were aware of the order dated 21.1.2002, it was necessary for the respondent no.2 to point out the circumstances by which it could be proved that the petitioners indeed had knowledge about the order dated 21.1.2002. It was the case of the petitioners that they were unaware about the order and the respondent no. 2 could have proved the fact about the knowledge by tendering cogent and convincing evidence, in that regard. There is, however, nothing on record, not an iota of evidence, to prove that the petitioners indeed had knowledge about the order of injunction dated 21.1.2002. The petitioners had categorically stated on oath before the trial court that they were unaware of the order dated 21.1.2002. There is, however, nothing on record, not an iota of evidence, to prove that the petitioners indeed had knowledge about the order of injunction dated 21.1.2002. The petitioners had categorically stated on oath before the trial court that they were unaware of the order dated 21.1.2002. It is surprising that respondent no. 2 has not cross-examined the petitioners on this fact at all. The statement of fact in the examination in chief of the petitioners that they were totally unaware about the order dated 21.1.2002 went unchallenged. It is rightly submitted on behalf of the petitioners that the proceedings under Order 39 Rule 2A of the Code of Civil Procedure are in the nature of criminal proceedings and since a person guilty of breach of order of injunction is liable to be detained in prison, the principles of criminal law will apply and the respondent no.2 will have to establish beyond any shadow of doubt that the petitioners had disobeyed the injunction order though they had full knowledge of the same. As stated herein above, there is no evidence whatsoever to point out that the petitioners indeed had knowledge about the order dated 21.1.2002. The courts ought to have accepted the case of the petitioners that the petitioners had no knowledge about the order dated 21.1.2002, specially when evidence was not tendered by the respondent no.2 to prove the knowledge of the order to the petitioners. The courts have erroneously considered the fact that the petitioners filed the written statement on 30.1.2002 though the said fact was not at all relevant for the purpose of proving the knowledge of the order dated 21.1.2002. Having knowledge of the proceedings in general would not mean that the parties have the special knowledge of every order that is passed in the proceedings. It is nobody’s case that the petitioners were informed about the order either by their counsel or by Atmaram. The respondent no. 2 had not produced any evidence whatsoever to prove that the petitioners had knowledge of the order of injunction dated 21.1.2002. The courts, however, considered some irrelevant facts to hold that the petitioners had knowledge of the order and allowed the application filed by the respondent no.2 under Order 39 Rule 2A of the Code of Civil Procedure. The impugned orders cannot be sustained. Hence, for the reasons aforesaid, the writ petition is allowed. The courts, however, considered some irrelevant facts to hold that the petitioners had knowledge of the order and allowed the application filed by the respondent no.2 under Order 39 Rule 2A of the Code of Civil Procedure. The impugned orders cannot be sustained. Hence, for the reasons aforesaid, the writ petition is allowed. The impugned orders are quashed and set aside. Misc. Judicial Case No. 28/2008 filed by the respondent no.2 under order 39 Rule 2A of the Code of Civil Procedure stands dismissed. Rule is made absolute in the aforesaid terms with no order as to costs.