Research › Search › Judgment

Madhya Pradesh High Court · body

2015 DIGILAW 352 (MP)

Gendalal v. Chagganlal

2015-03-26

S.C.SHARMA

body2015
ORDER 1. The present appeal has been filed by the appellants being aggrieved by the order dated 28.3.2014 passed by 16th Additional District Judge, Indore. 2. Facts of the case reveal that an application was preferred in Civil Suit under Order 39 rules 1 and 2 read with section 151 of the CPC and an interim order was passed on 8.11.2006 directing the parties not to alienate the property in question, i.e. land bearing Survey No.96 situated in village Betma, Tahsil Depalpur. The dispute was between the family members and during the pendency of the injunction order, the land was sold and therefore, an application was preferred under Order 39 rule 2A of the CPC. The trial Court has held the respondents guilty of committing a breach and a fine of Rs.5,000/- has been imposed. 3. Learned counsel appearing for the appellants has vehemently argued before this Court that the fine of Rs.5,000/- is too meager and the defendant should have been sent to jail. 4. This Court has carefully gone through the Order 39 rule 2A of the CPC which provides a punishment for disobedience or breach of injunction. Order 39 rule 2 reads as under :- “2. Injunction to restrain repetition or continuance of breach.-(1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained, of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right. (2) The Court may by order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise as the Court thinks fit. 2A. (2) The Court may by order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise as the Court thinks fit. 2A. Consequence of disobedience or breach of injunction.-(1) 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. (2) No attachment made under this rule shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues, the property attached may be sold and out of the proceeds, the Court may award such compensation as it thinks fit to the injured party and shall pay the balance, if any, to the party entitled thereto.” 5. The aforesaid statutory provision of law empowers the Court to pass an order of detention of disobeying party or to attach his property. Not only this, it also empowers the Court to take both the steps or to take one of the steps depending upon the facts of the case. In the present case after holding the respondents guilty of committing breach of order dated 8.11.2006, fine of Rs.5,000/- has been imposed. Order 39 rule 2A CPC does not provide for imposition of fine and no judgment of the apex Court has been brought to the notice of this Court by learned counsel appearing for the respondents which empowers the trial Court to impose the fine as has been done by the learned 16th Additional District Judge, Indore. In the case of Samee Khan v. Bindu Khan, reported in AIR 1998 SC 2765 , the apex Court in Paragraphs 11, 12 and 15 has held as under :- “11. At the first blush the above interpretation appeared attractive. But on a closer scrutiny we feel that such interpretation is not sound and it may lead to tenuous results. In the case of Samee Khan v. Bindu Khan, reported in AIR 1998 SC 2765 , the apex Court in Paragraphs 11, 12 and 15 has held as under :- “11. At the first blush the above interpretation appeared attractive. But on a closer scrutiny we feel that such interpretation is not sound and it may lead to tenuous results. No doubt the wording as framed in Order 21 rule 32(1) would indicate that in enforcement of the decree for injunction a judgment-debtor can either be put in civil prison or his property can be attached or both the said courses can be resorted to. But sub-rule (5) of rule 32 shows that the Court need not resort to either of the above two courses and instead the Court can direct the judgement-debtor to perform, the act required in the decree or the Court can get the said act done through some other person appointed by the Court at the cost of the judgement-debtor. Thus, in execution of a decree the Court can resort to a three fold operation against disobedience of the judgment-debtor in order to compel him to perform the act. But once the decree is enforced the judgment-debtor is free from the tentacles of rule 32. A reading of that Rule shows that the whole operation is for enforcement of the decree. If the injunction or direction was subsequently set aside or if it is satisfied the utility or rule 32 gets dissolved. 12. But the position under rule 2A of Order 39 is different. Even if the injunction order was subsequently set aside the disobedience does not get erased. It may be a different matter that the rigour of such disobedience may be toned down if the order is subsequently set aside. For what purpose the property is to be attached in the case of disobedience of the order of injunction? Sub-rule (2) provides that if the disobedience or breach continues beyond one year from the date of attachment the Court is empowered to sell the property under attachment and compensate the affected party from such sale proceeds. In other words, attachment will continue only till the breach continues or the disobedience persists subject to a limit of one year period. If the disobedience ceases to continue in the meanwhile the attachment also would cease. In other words, attachment will continue only till the breach continues or the disobedience persists subject to a limit of one year period. If the disobedience ceases to continue in the meanwhile the attachment also would cease. Thus even under Order 39 rule 2A the attachment is a mode to compel the opposite party to obey the order of injunction. But detaining the disobedient party in civil prison is a mode of punishment for his being guilty of such disobedience. 15. Hence the words “and may also” in rule 2A cannot be interpreted in the context as denoting to a step which is permissible only as additional to attachment of property of the opposite party. If those words are interpreted like that it may lead to an anomalous situation. If the person who defies the injunction order has no property at all the Court becomes totally powerless to deal with such a disobedient party. He would be immuned from all consequences even for any open defiance of a Court order. No interpretation shall be allowed to bring about such a sterile or anomalous situation (vide Constitution Bench in Vidya Charan Shukla v. Khubchand Baghel, [ AIR 1964 SC 1099 ]. The pragmatic interpretation, therefore, must be this; it is open to the Court to attach the property of the disobeying party and at the same time the Court can order him to be detained in civil prison also if the Court deems it necessary. Similarly the Court which orders the person to be detained in civil prison can also attach the property of that person. Both steps can be resorted to or one of them alone need be chosen. It is left to the Court to decide on consideration of the fact situation in each case.” 6. In the light of judgment delivered by the apex Court and in the light of the statutory provision, the order dated 28.3.2014 is set aside only to the extent of punishment of Rs.5,000/- as has been awarded by the trial Court and the matter is remanded back to the trial Court to pass necessary order that too after granting an opportunity of hearing to the respondents, keeping in view Order 39 rule 2A of the CPC and also keeping in view the judgment delivered by the apex Court in the case of Samee Khan (supra). The exercise of passing necessary order be concluded within a period of 60 days from the date of receipt of certified copy of this order. 7. The parties are directed to appear before the trial Court on 6.4.2015. 8. The petition accordingly stands disposed of.