Research › Search › Judgment

Kerala High Court · body

2017 DIGILAW 1086 (KER)

Sudarsana Pillai v. Thulaseedharan Nair

2017-07-27

SATHISH NINAN, V.CHITAMBARESH

body2017
ORDER : V. Chitambaresh, J. Which is the appropriate forum to move an application alleging violation of injunction under R.2A of Order 39 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC' only)? The issue arises on a reference made by the learned single Judge noticing a conflict between Dinesh v. Pioneer Shopping Complex (P) Ltd. ( 2002 (1) KLT 35 ) and Indiradevi v. Prasannan (2009 (1) KLT 961). 2. The plaintiffs sought an order of temporary injunction in I.A. No.333/2016 restraining the defendants from altering the traditional route of the temple procession (Parakku Ezhunnullathu) pending disposal of O.S. No. 51/2014. The trial court dismissed the application for temporary injunction whereas the lower appellate court in C.M.A. No. 31/2014 allowed the same. This Court in O.P.(Civil) No.232/2016 filed by the defendants set aside the judgment of the lower appellate court and modified the interim arrangement to be maintained pending suit. The operative portion of the judgment is as follows: "If a procession is taken out by the first petitioner temple outside the properties which form part of its premises, it shall go to the houses in the order in which they are situated, which shall continue till the disposal of the suit." 3. The plaintiffs thereafter filed I.A. No.333/2016 alleging violation of injunction under Rule 2A of Order 39 of the C.P.C. to which the defendants have filed a counter affidavit and the trial court is in seizin of the matter. The defendants in the meanwhile have filed the present Original Petition under Article 227 of the Constitution of India questioning the maintainability of I.A. No. 333/2016. It is the case of the defendants that an application of that nature would lie only to this Court since what is complained of is the violation of the judgment in O.P.(Civil) No. 232/2016. The learned single Judge before whom the Original Petition came up for hearing felt that an authoritative pronouncement on the issue is warranted in the circumstances. 4. We heard Mr. R.D. Shenoy, Senior Advocate on behalf of the petitioners/defendants and Mr. N.N. Sugunapalan, Senior Advocate on behalf of the respondents/plaintiffs. 5. An order of temporary injunction under Rule 1 of Order 39 of the C.P.C. is for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or causing injury to the plaintiff in relation to the property. R.D. Shenoy, Senior Advocate on behalf of the petitioners/defendants and Mr. N.N. Sugunapalan, Senior Advocate on behalf of the respondents/plaintiffs. 5. An order of temporary injunction under Rule 1 of Order 39 of the C.P.C. is for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or causing injury to the plaintiff in relation to the property. The order of injunction may be discharged, varied or set aside either by recourse to Rule 4 of Order 39 or in an appeal under Rule 1 (r) of Order 43 of the C.P.C. or in an Original Petition therefrom. The final order so passed would hold the field until the disposal of the suit which would merge with the decree to be eventually passed and the same will bind the parties thereafter. The judgment in O.P.(Civil) No.232/2016 is one such order which would govern the parties until the final disposal of the suit which is still pending on the file of the trial court. 6. The defendants contended that only 'the court granting the injunction or making the order, or any court to which the suit or proceeding is transferred' can deal with an application under Rule 2A of Order 39 of the C.P.C. We wish to emphasise that a procedural statute like the C.P.C. should not be construed in a literal sense without understanding the scheme of the statute. The judgment in O.P.(Civil) No.232/2016 modifying the order passed in an application for temporary injunction should be deemed to have been made by the trial court itself. Such deeming effect is given solely for the purpose of disposal of the application filed alleging violation of injunction under R.2A of Order 39 of the C.P.C. Expediency warrants that the court where the main proceeding is pending (which in the instant case is the court of the Munsiff where the suit is pending) deals with an application of that nature. Similarly the appellate court (if the appeal suit is pending on its file) shall deal with an application alleging violation of injunction in respect of an interim order passed in the appeal suit. This will obviate the necessity to pursue two independent proceedings in two different forums parallely between the same parties in respect of the same subject matter of the lis. 7. This will obviate the necessity to pursue two independent proceedings in two different forums parallely between the same parties in respect of the same subject matter of the lis. 7. The dictum in Dinesh's case (supra) is to the effect that this Court can also entertain an application under Rule 2A of Order 39 of the C.P.C. when the order on an application for injunction has merged in an appeal here. The said decision nowhere says that only this Court has the jurisdiction to entertain an application alleging violation of injunction granted in the disposal of the appeal. The jurisdiction is concurrent and it is always advisable for the parties to approach the court lowest in hierarchy to enable them to pursue appropriate remedies in appeal. 8. We are in perfect agreement with the dictum in Indiradevi's case (supra) that the appropriate remedy in such circumstances is to move under Rule 2A of Order 39 of the CP.C. and not to initiate proceedings in contempt. Such a view finds favour in Kanwar Singh Saini v. High Court of Delhi (2011 (4) KLT SN 32 (C.No.31) SC : (2012) 4 SCC 307 ) since attachment of property or detention in civil prison can be sought. The view in Dinesh's case (supra) as regards contempt proceedings has already been declared as obiter dicta in Indiradevi's case (supra) and we endorse the same. Indiradevi's case (supra) essentially dealt with the propriety of initiating proceedings in contempt when there is an efficacious remedy under Rule 2A of Order 39 of the CP.C. The dictum in Indiradevi's case (supra) is silent about the forum to entertain an application for violation of injunction and does not militate against the dictum in Dinesh's case (supra). 9. Reference answered accordingly. Post the Original Petition for final hearing before the single Bench as per roster.