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2014 DIGILAW 274 (KER)

Babu T. S. v. Sree Dharma Paripalana Yogam

2014-03-24

K.ABRAHAM MATHEW

body2014
ORDER : K. Abraham Mathew, J. The respondents in I.A. No. 2092 of 2012 in O.S.No.71 of 2012 on the file of the Munsiff Court, Kochi challenges the order by which the lower court directed to proceed with the application filed by the petitioner to prosecute the respondents under 39, Rule 2A of the Code of Civil Procedure. 2. The suit was for a perpetual injunction. On the application filed by the plaintiff the court passed an interim injunction order prohibiting the defendants from taking out a parallel religious procession in connection with the festival of a temple. Later, when the case was taken up for consideration the plaintiff submitted that the suit was not pressed. Acting upon it the court dismissed the suit. On the same day the plaintiff had filed I.A.No.559 of 2012 to prosecute the defendants under 39, Rule 2A of the Code of Civil Procedure on the allegation that they had violated the injunction order. This I.A. had not come up before the court when the suit was dismissed. After the disposal of the suit as mentioned above, the court passed an order directing prosecution of the defendants. The correctness of this order is assailed in this Civil Revision Petition. 3. Heard the learned counsel on both sides. 4. The submission of the learned counsel for the petitioner is that an application under 39, Rule 2A is not maintainable after the disposal of the suit. Reliance is placed on Kanwar Singh Saini v. High Court of Delhi ( (2012) 4 SCC 307 ) in which the Supreme Court held that after the disposal of the suit an application under 39, Rule 2A is not maintainable. But that was a case in which the alleged violation took place after the disposal of the suit. In this proceedings the allegation is that the defendants violated the order during the pendency of the suit. So the decision in Kanwar Singh Saini is not applicable to the facts of the case. 5. The learned counsel for the petitioner placed reliance on State of Bihar v. Rani Sonabati Kumari ( AIR 1961 SC 221 ) also in support of his argument that the petition under 39, Rule 2A is not maintainable. On the other hand the learned counsel for the defendants relies on T.M. Bagasarwalla v. H.R. Industries ( AIR 1997 SC 1240 ). On the other hand the learned counsel for the defendants relies on T.M. Bagasarwalla v. H.R. Industries ( AIR 1997 SC 1240 ). The main question that arose for consideration in Rani Sonabati Kumari's case, which was considered before the amendment of Code of Civil Procedure in 1976, is whether the State can be prosecuted for violation of an order of injunction. It is a decision rendered by a five Judge Bench of the Supreme Court. 6. In paragraph 23 of the judgment it is observed thus: "Though undoubtedly proceedings under 39, Rule 2(3) Civil Procedure Code have a punitive aspect as is evident from the contemner being liable to be ordered to be detained in civil prison, they are in substance designed to effect the enforcement of or to execute the order. This is clearly brought out by their identity with the procedure prescribed by the Civil Procedure Code for the execution of a decree for a permanent injunction. 21, Rule 32 sets out the method by which such decrees could be executed and Clause (1) enacts-"where the party against whom a decree...for an injunction has been passed, has had an opportunity for obeying the decree and has wilfully failed to obey it, the decree may be enforced, in the case of a decree......for an injunction by his detention in the civil prison, or by the attachment of his property or by both." Clauses 2 and 3 of this rule partically reproduce the terms of Cls.4 and 3 respectively of 39, Rule 2, and the provisions leave no room for doubt that 39, Rule 2(3) is in essence only the mode for the enforcement or effectuation of an order of injunction". According to the learned counsel for the revision petitioner since the object of the prosecution is only to enforce the decree or order there is no question of maintaining an application under 39, Rule 2A after the disposal of the suit. It is true that the Supreme Court has held that the object of prosecution under 39, Rule 2A is to effect the enforcement or execution of the order. But it does not mean that once the suit is disposed of, the party who violates the order cannot be prosecuted. It is true that the Supreme Court has held that the object of prosecution under 39, Rule 2A is to effect the enforcement or execution of the order. But it does not mean that once the suit is disposed of, the party who violates the order cannot be prosecuted. In Bagasarwalla's case (supra) the Apex Court has held that if a party violates the order of injunction passed in a suit and later the court finds that it has no jurisdiction to entertain the suit, still the violator is liable. There is no conflict between the two decisions of the Supreme Court. In C. Aravindaksha Menon and others v. Raghava Menon ( 2007 (2) KLT 427 ) the decision in Bagasarwalla's case was followed and this court held that the party who violates the order of injunction is liable to be proceeded against under 39, Rule 2A even after the disposal of the suit. So I am of the view that the submission of the learned counsel for the revision petition cannot be upheld. 7. It is also submitted by the learned counsel for the revision petitioner that the submission that the suit was not pressed was made after the filing of the petition under 39, Rule 2A and so it should be understood that application also was not pressed. I think there is some force in the submission. When the plaintiff withdrew the suit it had already filed the prosecution petition though it had not come up before the court for consideration. But the court was not aware of the filing of the petition. That is why the court happened to direct to proceed with the prosecution petition. It is taking advantage of this situation the plaintiff now wants the court to prosecute the defendants. Law cannot be allowed to be an instrument of oppression. So in my view when the plaintiff withdrew the suit the prosecution petition, namely I.A. No. 559 of 2012, also was withdrawn. The lower court should not have proceeded with the petition. The order is liable to be set aside. In the result, the Civil Revision Petition is allowed. The order of the lower court is set aside. No costs.