Research › Search › Judgment

Allahabad High Court · body

2013 DIGILAW 531 (ALL)

MOHD. RAFEEQ v. MOHD. HAFEEZ @ ABDUL HAFEEZ

2013-02-13

ANIL KUMAR

body2013
JUDGMENT Hon’ble Anil Kumar, J.—Heard Sri Shahroze Khan, learned counsel for the petitioner, Sri R.P. Dubey learned counsel for contesting respondents as well as learned State Counsel and perused the record. Facts, in brief, of the present case are that plaintiff-respondent field a suit for permanent injunction, registered as Regular Suit No. 425 of 1996 in the Court of Civil Judge (Junior Division), Siddarth Nagar. In the said suit, Mohd. Hafeez is plaintiff and Sami Mohammad and Vais Mohammad are defendants. 2. An application under Order 39 Rule 1 and 2 CPC has been moved by plaintiff for grant of temporary injunction. By order dated 17.8.1996, trial Court granted temporary injunction directing the parties to maintain status quo in respect of property in dispute. Thereafter plaintiff move an application under Order 39 Rule 2A CPC on the ground that temporary injunction has been violated by the defendants in in collusion with the present petitioners, namely, Mohd Rafeeq, Guddu alias Ishtiaq and Meraj, registered as Misc Case No. 5 of 2001, the trial Court by order dated 1.2.2003, rejected the same with a finding that the order of temporary injunction dated 17.8.1995 was neither served upon the petitioners nor they were parties in the suit. 3. Aggrieved by the order dated 1.2.2003 plaintiff filed an appeal before the appellate authority/District Judge, Siddarthnagar, registered as Misc. Civil Appeal No. 10 of 2003(Abdul Hafiz v. Shami Mohammad and others). By order dated 27.5.2006 (Annexure 6), the appellate authority set-aside the order dated 1.2.2003 and awarded one month further civil imprisonment and also ordered for attached the property of the petitioners. Order dated 27.5.2006 passed by appellate authority has been challenged in the present writ petition by the petitioners (Mohd Rafeeq, Guddu alias Ishtiaq and Meraj). On 8.12.2006, this Court has passed an interim order, the relevant portion is quoted as under : “Until further orders, the effect and operation of order dated 27.5.2006 passed by the District Judge, Siddarth Nagar in Misc. Civil Appeal No. 10 of 2003 shall remain stayed.” 4. I have heard learned counsel for the parties and perused the record. On 8.12.2006, this Court has passed an interim order, the relevant portion is quoted as under : “Until further orders, the effect and operation of order dated 27.5.2006 passed by the District Judge, Siddarth Nagar in Misc. Civil Appeal No. 10 of 2003 shall remain stayed.” 4. I have heard learned counsel for the parties and perused the record. In view of the said facts, the main question which has to be adjudicated in the present case is that if the petitioners are not defendants in suit in which a temporary injunction has been granted in favour of the plaintiff than in that circumstances on an application moved under Order 39 Rule 2-A CPC for alleged violation/disobedience of the said injunction order they can be punished under the provisions of Order 39 Rule 2-A CPC. 5. A proceeding under Rule 2A of Order 39 is a serious matter. The Court is empowered to order to take away the liberty of an individual and order detention of the person who violates the order, in civil prison. The power is penal in nature. If so, the burden is heavily on the person who alleges disobedience to prove the ingredients of the offense beyond reasonable doubt. An order under Rule 2A cannot be passed on suspicion or as a matter of course. These should be clear proof that the order to be obeyed was clear, unambiguous and, with full knowledge of the content of the order it was disobeyed. The purpose of Rule 2A of Order 39 is not to punish a person who has disobeyed the injunction order, but to enforce it. Only wilful disobedience invites the wrath of penal action as envisaged in the said provision. Unless knowledge of the order of Court is proved, the breach thereof cannot be said to be willful. 6. In the case of Margo Municipal Council v. Pandurag Kusta Alve, AIR 2000 Bom 78 , it has been held that a person who is neither impleaded in the suit nor any order of injunction is passed against him cannot be held guilty for breach of any order passed in such proceedings. 7. 6. In the case of Margo Municipal Council v. Pandurag Kusta Alve, AIR 2000 Bom 78 , it has been held that a person who is neither impleaded in the suit nor any order of injunction is passed against him cannot be held guilty for breach of any order passed in such proceedings. 7. In the case of Bhupinder Singh v. Parmodh Singh, AIR 2008 HP 3, it has been held that if the respondents are neither a party in the suit nor they had enjoyed knowledge of the injunction order of which breach was alleged, no case of willful disobedience can be made against them under Order 39 Rule 2-A CPC.. Thus, Order 39 Rule 2A is not intended to give power to visit (for contempt) against those persons who are not a party in a suit in which the injunction order has been passed and not served on them. For the foregoing reasons, the writ petition is allowed. The impugned order dated 27.5.2006 (Annexure 6) passed by District Judge, Siddarth Nagar passed in Misc. Civil Appeal NO. 10 of 2003(Abdul Hafij v. Shami Mohammad and others) is set aside. —————