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Madhya Pradesh High Court · body

2014 DIGILAW 1685 (MP)

Bacchu v. Beerwal

2014-12-18

SUJOY PAUL

body2014
ORDER 1. This petition filed under Article 227 of the Constitution of India is directed against the order dated 20.3.2007, whereby the Court below has disallowed the application of the petitioners seeking deletion of their names from the proceedings initiated under Order 39 Rule 2A CPC. The necessary facts are as under :- 2. The respondents No.1 and 2 filed an application under Order 39 rule 2A CPC against the petitioners and respondents No.3 and 4. The grievance put-forth in the said application is that the permanent injunction order dated 6.4.1993 is not followed by the non-applicants. The Court below issued notices on the said application preferred under Order 39 rule 2A. In turn, the petitioners preferred an application under section 151 CPC on 14.2.2007 contending that in original injunction order dated 6.4.1993, the petitioners were not party. In execution proceeding or in application under Order 39 rule 2A they cannot be impleaded as party. The other side filed reply and contended that when the civil suit was filed, the present petitioners were ten and seven years of age respectively. Since they were minor at that point of time, they were not impleaded. However, now they have attained majority and creating hindrance in execution of the injunction order dated 6.4.1993. It is further contended that present petitioners are sons of non-applicant No.1. The Court below by impugned order rejected the said application dated 14.2.2007. 3. Shri M.L.Bansal relied on 2002 (I) MPWN 219 (Rajkumar v. Tankhram) and submits that present petitioners were not party in the original suit and, therefore, no injunction order was passed against the petitioners. Since petitioners were not party in civil suit, the Court below has erred in rejecting their application and continued them as a party in the proceedings under Order 39 rule 2A CPC. 4. Per contra, Shri A.V.Bharadwaj, learned counsel for respondents No. 1 and 2 supported the order and relied on AIR 1967 AP 219 (R. Narapa Reddy v. Jagarlamudi Chandramouli and others). 5. I have heard the learned counsel for the parties and perused the record. 6. This is not in dispute between the parties that the petitioners are dependents of defendants of original civil suit. 5. I have heard the learned counsel for the parties and perused the record. 6. This is not in dispute between the parties that the petitioners are dependents of defendants of original civil suit. No doubt, in Rajkumar (supra), this Court opined that under Order 39 rule 2-A CPC, only those persons can be punished for committing breach of injunction order who were party to the suit in which order of injunction was passed. However, the aforesaid aspect was again dealt with by this Court in 2006(4) M.P.L.J. 595 (Chhagan Lal Jaiswal through LRs Pooran Chand Jaiswal and others v. Kamal Chand Jain through LRs Gulab Bai and others. This Court after considering AIR 1968 Rajasthan 212 (Rattu v. Mala and another), 1984 MPWN 28 (Sitaram Sharma (Dr.) v. Kishna) and AIR 1961 SC 221 (State of Bihar v. Rani Sonabati Kumari) opined as under :- A. “It is true that an order of temporary injunction is to be normally issued against the parties to the suit. However, power of Court to issue temporary injunction is not confined merely against the plaintiff or the defendant alone. Such an order may be made against any person who is present before the Court and is, in the opinion of the Court, causes interference/obstruction in the exercise of lawful rights of the plaintiff. Court is well empowered to take cognizance of disobedience or breach 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 is granted which obviously included an order of temporary injunction granted under section 151 of Civil Procedure Code. The insertion of rule 2A is intended to seek provision of disobedience or breach of injunction which was earlier available under Sub-Rules (3) and (4) of Rule 2 of Order 39, Civil Procedure Code. Thus, it is not correct to say that the breach of an order of injunction issued under section 151, Civil Procedure Code cannot be taken into cognizance under Order 39, rule 2-A, Civil Procedure Code. Court has ample power under section 151, Civil Procedure Code to direct restoration of possession which has been taken away from the plaintiff in utter violation of the order of temporary injunction. Court cannot be prevented by the technicalities from doing justice in exercise of its inherent power. Court has ample power under section 151, Civil Procedure Code to direct restoration of possession which has been taken away from the plaintiff in utter violation of the order of temporary injunction. Court cannot be prevented by the technicalities from doing justice in exercise of its inherent power. Under Order 39, rule 2A, Civil Procedure Code, the punitive measure for the purpose of compelling a party to comply with the order of injunction may always be resorted to. The process as contemplated by the said direction may or may not ultimately be effective, but in any event, the Court is not powerless to grant relief of restoration of possession in exercise of its inherent powers. All that the Court is concerned is to prevent abuse of the process of Court which includes deliberate violation of the order of temporary injunction. Thus, there is no bar in invoking inherent powers under section 151, Civil Procedure Code while dealing with the matter under Order 39 rule 2A, Civil Procedure Code. Thus, no illegality is found in the impugned order and the order directing delivery or possession cannot be said to be without jurisdiction.” (Emphasis supplied) 7. A plain reading of the judgment of Kamal Chand Jain (supra) makes it clear that this Court has considered Order 39 rule 2A and inherent powers of the Court under section 151 CPC. In Rajkumar (supra), this Court did not deal with inherent powers of the Court flowing from section 151 CPC. Thus, the judgment of Rajkumar (supra) is distinguishable. In view of Chagan Lal Jaiswal (supra), it is clear that the Court has ample power to take action which is in utter violation of order of temporary injunction. Court cannot be prevented by technicalities. The basic purpose is to grant relief in consonance with injunction order. The anxiety of the Court is to ensure that there is no abuse of process of Court which includes deliberate violation of order of temporary injunction. 8. In the light of this judgment, I find no legal error in the order impugned. The order is not shown to be without jurisdiction, nor it suffers from any manifest procedural impropriety or palpable perversity. Thus, no case is made out for interference under Article 227 of the Constitution of India [See (Shalini Shyam Shetty and another v. Rajendra Shankar Patil)] reported in (2010) 8 SCC 329 ). The order is not shown to be without jurisdiction, nor it suffers from any manifest procedural impropriety or palpable perversity. Thus, no case is made out for interference under Article 227 of the Constitution of India [See (Shalini Shyam Shetty and another v. Rajendra Shankar Patil)] reported in (2010) 8 SCC 329 ). Petition is devoid of merit and is hereby dismissed. M. L. Bansal for petitioners; Anand V. Bhardwaj for respondents No.1 & 2.