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Madhya Pradesh High Court · body

2017 DIGILAW 143 (MP)

ASHOK KUMAR GOENKA v. M. P. GRIH NIRMAN MANDAL

2017-01-30

SANJAY YADAV

body2017
ORDER : SANJAY YADAV, J. 1. With consent of learned counsel for the parties the matter is finally heard. 2. Orders dated 27.09.2006 and 24.11.2010 are challenged vide this petition under Article 227 of the Constitution of India. 3. Vide order passed on 27.09.2006, the trial Court dismissed the application under Order 39, Rule 2A Code of Civil Procedure, 1908, for initiating action against the respondents. That by order dated 24.11.2010; Appeal preferred by the petitioner has been dismissed. 4. The application under Order 39, Rule 2A CPC was filed by the petitioner, a plaintiff, for alleged disobedience of the order passed on 05.04.2002 and 16.05.2003. 5. These orders emanates from the proceedings in Civil Suit filed by the petitioner for mandatory injunction in respect of immovable property situated at village Bargawan, Patwari Halka No.45/1, NB 29 Tahsil Katni Khasra No.1, 2, 3, 4, 5, 6, 7, 8, 9, 10/1, 10/2, 12, 13, 14, 15 part, 16, 17 and 18 total area 26.90 acres. (The suit has since been dismissed by Judgment and Decree dated 30.08.2011: Civil Suit 68-A/2002). 6. On 05.04.2002 on petitioner's application for urgent hearing of the suit, the matter was taken up by another Court, as the regular Court was on leave on 05.04.2002; wherein, pending consideration of an application under Order 39, Rule 1 and 2 CPC, following order of an interlocutory nature was passed- Qyr% mifLFkr izfroknhx.k dzekad 1] 2 rFkk 4 ,o 6 ds fo:) nkos ,oa mlds lkFk layXu uD'ks esa of.kZr oknxzLr Hkwfe ds laca/k esa fu;fer U;k;ky; }kjk vLFkkbZ fu"ks/kkKk vkosnu dh lquokbZ ,oa fujkdj.k rd ;Fkk fLFkfr dk vkns'k fn;k tkrk gSA 7. The said order was reiterated by order dated 16.05.2003 which was on an application under section 151 CPC. The trial Court observed and ordered. oknh }kjk pkgk x;k vuqrks"k vkns'k fnukad 05-04-2002 esa lekfgr gS mDr vkns'k ds ifjis{; esa oknh dk vkosnu i= vUrxZr /kkjk 151 lh0ih0lh0 Lohdkj fd;k tkrk gS izfr0 x.kdks fodz; fuekZ.k vLi"V 0-39 fu0 1] 2 ds fujkdj.k rd lsok ls jksdk tkrk gSA 8. Alleging disobedience of these two orders, petitioner filed an application under Order 39, Rule 2A CPC for an action against respondents. Alleging disobedience of these two orders, petitioner filed an application under Order 39, Rule 2A CPC for an action against respondents. However, on an objection raised on behalf of the respondents as to maintainability of the application on the ground that as the orders on 05.04.2002 and 16.05.2003 were not passed on an application under Order 39, Rule 1 and 2, and that the proceedings against the company will not lie and the person who allegedly disobeyed the order is not made party; the application is liable to be dismissed. 9. The objection raised on behalf of the respondent found favour with the trial Court, which dismissed the petitioner's application under Order 39, Rule 2A CPC by its order dated 27.09.2006. The trial Court held: 5- bl ekeys esa iwoZ esa ftu i{kdkjksa ds fo:) O;ogkjokn dz0 73v@02 is'k fd;k x;k gS] mUgh i{kdkjksa ds fo:) ;g izdj.k U;k;ky; esa yafcr gSA bl izdj.k esa fnukad 05-04-2002 o vU; vkns'k ds voyksdu ls ;g Li"V gS] fd vLFkk;h fu"ks/kkKk dk vkns'k ikfjr ugha fd;k x;k gS] oju~ /kkjk 151 lh0ih0lh0 ds vkosnu i= esa vkns'k ikfjr fd;k x;k gS] ftlds lanHkZ esa vkifRrdrkZ@vukosndx.k dk dFku gS] fd mDr vkns'k vLFkk;h fu"ks/kkKk ds vkns'k dh ifjf/k esa ugha vkrk gS] ftlls vkns'k&39] fu;e&2( v) lh0ih0lh0 ds v/khu dk;Zokgh vukosndx.k ds fo:) ugha dh tk ldrh gSA 10. This order has been affirmed in appeal which was dismissed on 24.11.2010. 11. The challenge to these orders are on the ground that both the Courts misconstrued the provisions of Order 39, Rule 2A CPC which would also include within its fold any order passed in a proceedings having effect of granting temporary injunction. It is urged that even if an order is passed on an application for urgent hearing on an application under section 151 CPC by the Court exercising its inherent power, the breach of such order would give rise to the proceedings under Order 39, Rule 2A CPC. Reliance is placed on the decision by a coordinate Bench of this Court in Chhagan Lal Jaiswal through LRs Pooran Chand Jaiswal and others v. Kamal Chand Jain through LRs Gulab Bai and others: 2006 (4) MPLJ 595; wherein it is held- "12. Reliance is placed on the decision by a coordinate Bench of this Court in Chhagan Lal Jaiswal through LRs Pooran Chand Jaiswal and others v. Kamal Chand Jain through LRs Gulab Bai and others: 2006 (4) MPLJ 595; wherein it is held- "12. From the perusal of the aforesaid, it is clear that the 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. My this view finds support from the decision of Rajasthan High Court in the case of Rattu v. Mana and another, reported as AIR 1968 Rajasthan 212 wherein it has been held that- "It is settled law that disobedience of an order of injunction is under Rule 2(3) of Order 39 whether injunction is granted under Rule 1 or Rule 2 of Order 39 or under Section 151, Civil Procedure Code." 12. Sub-rules (3) and (4) of Rule 2 of Order 39, Civil Procedure Code have been omitted by Amendment Act, 1976. The insertion of Rule 2- A is intended to seek provision of disobedience or breach of injunction which were 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." 13. Countering the contention it is urged on behalf of the respondents that, unless a breach of an order or an application under Order 39, Rule 1 and 2 is reported, the provisions contained under Order 39, Rule 2A CPC would not be attracted. Decisions in Shri Narhari v. Smt. Shantabai: 2001 (11) MPACJ 141, Food Corporation of India v. Sukh Deo Prasad: (2009) 5 SCC 665 and Kanwar Singh Saini v. High Court of Delhi: (2012) 4 SCC 307 , have been relied on. Considered the rival submissions. Rule 2A of Order 39 CPC envisages that- "2-A. Consequence of disobedience or breach of injunction. Considered the rival submissions. Rule 2A of Order 39 CPC envisages that- "2-A. 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 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 tone 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." 13. The issue as to whether an order on an application other than an application under Order 39, Rule 1 and 2 CPC could be construed to be an injunction order the breach whereof could maintain an application under Order 39, Rule 2A CPC came up for consideration before the Supreme Court in Food Corporation of India v. Sukh Deo Prasad (supra), wherein the questions arose for consideration were: "16. On the contentions urged, the following questions arise for consideration : (i) What is the purport and effect of the order dated 27.5.1996 described by the trial court and the High Court as the 'injunction order'. (ii) Whether the respondent, who was the first defendant in the mortgage suit filed by the bank, could maintain an application under Order 39, Rule 2A of the Code for the alleged disobedience by FCI (a co-defendant), of the order dated 27.5.1996 made in an application filed by the plaintiff bank? (iii) Whether the trial court was justified in allowing such application under Order 39, Rule 2A of the Code, holding that FCI was liable to pay the rents for three godown's from December, 1983 to 31.3.1996 and interest thereon and direct attachment of the assets of FCI to an extent of Rs. 1,12,24,792.99? (iii) Whether the trial court was justified in allowing such application under Order 39, Rule 2A of the Code, holding that FCI was liable to pay the rents for three godown's from December, 1983 to 31.3.1996 and interest thereon and direct attachment of the assets of FCI to an extent of Rs. 1,12,24,792.99? (iv) Whether the High Court was justified in disposing of FCI's appeal in a summary manner? 14. In the case at hand, question Nos. (i) and (ii) has the relevance. In respect whereof it was held by their Lordships: Re. Question (i): "17. At the outset it should be made clear that we are considering only the purport and effect of the interim order dated 27.5.1996 and not the correctness or validity of the said order, as what is under challenge is not the order dated 27.5.1996, but the order dated 15.12.2004 under Order 39, Rule 2A of the Code holding that FCI had disobeyed the order dated 27.5.1996. 18. The order dated 27.5.1996 was passed on an application dated 12.1.1996 filed by the plaintiff bank. It was not filed either under Rule 1 or 2 of Order 39 of the Code. In fact, the application did not mention the provision of law under which it was filed. ..." 21. ... In a general sense, though every order of a court which commands or forbids is an injunction, but in its accepted legal sense, an injunction is a judicial mandate operating in personam by which, upon certain established principles of equity, a party is required to do or refrain from doing a particular thing [see Howard C. Joyce - A Treatise on the Law relating to injunctions (1909) Section 1 at 2-3]. A direction to pay money either by way of final or interim order, is not considered to be an 'injunction' as assumed by the courts below. 22. Admittedly the application dated 12.1.1996, on which the order dated 27.5.1996 was passed, did not fall under Rule 1 of Order 39 as the prayer therein did not relate to any of the three matters mentioned in clauses (a), (b) and (c) of the said rule. It did not also fall under Rule 2 of Order 39 as admittedly there was no contract between the bank and FCI nor any allegation that FCI was committing any injury of any kind to the bank. It did not also fall under Rule 2 of Order 39 as admittedly there was no contract between the bank and FCI nor any allegation that FCI was committing any injury of any kind to the bank. Therefore, the order dated 27.5.1996 was not an order under either Rule 1 or Rule 2 of Order 39 of the Code. ..." 23. .... The order dated 27.5.1996 was not an injunction order, but an interim prohibitory (garnishee) order by way of attachment before judgment, in regard to the rents payable for one godown taken by it on lease in June, 1994. Re. Question (ii)- 24. An application under Order 39, Rule 2A of the Code is maintainable only when there is disobedience of any 'injunction' granted or other order made under Rule 1 or Rule 2 of Order 39 or breach of any of the terms on which the injunction was granted or the order was made. 25. We have already noticed that the application by the bank, on which the said order dated 27.5.1996 was passed, was neither under Rule 1 nor under Rule 2 of Order 39 CPC and none of the ingredients required for an application under either Rule 1 or Rule 2 of Order 39 existed was found in the application by the bank. As the order dated 27.5.1996 was neither under Rule 1 or 2 of Order 39, the application under Rule 2A of Order 39 was not maintainable." 15. Similarly, in Kanwar Singh Saini (supra) it is held- "17. Application under Order 39, Rule 2A CPC lies only where disobedience/breach of an injunction granted or order complained of was one, that is granted by the court under Order 39 Rules 1 & 2 CPC, which is naturally to enure during the pendency of the suit. However, once a suit is decreed, the interim order, if any, merges into the final order. No litigant can derive any benefit from mere pendency of case in a Court of Law, as the interim order always merges in the final order to be passed in the case and if the case is ultimately dismissed, the interim order stands nullified automatically. 19. No litigant can derive any benefit from mere pendency of case in a Court of Law, as the interim order always merges in the final order to be passed in the case and if the case is ultimately dismissed, the interim order stands nullified automatically. 19. In Food Corporation of India v. Sukha Deo Prasad, AIR 2009 SC 2330 , this Court held that the power exercised by a court under Order 39, Rule 2A is punitive in nature, akin to the power to punish for civil contempt under the Act 1971. Therefore, such powers should be exercised with great caution and responsibility. Unless there has been an order under Order 39, Rule 1 or 2 CPC in a case, the question of entertaining an application under Order 39, Rule 2A does not arise. In case there is a final order, the remedy lies in execution and not in an action for contempt or disobedience or breach under Order 39, Rule 2A. The contempt jurisdiction cannot be used for enforcement of decree passed in a civil suit." 16. In view of the law laid down by the Supreme Court in Food Corporation of India (supra) and Kanwar Singh Saini (supra), the legal position having come to take a rest that unless there is an order under Order 39, Rule 1 and 2 CPC in a case, the question of entertaining an application under Order 39, Rule 2A CPC does not arise. A contrary view by a learned Single Judge in Smt. Kasturba Devi (supra) is impliedly overruled in view of law laid down by the Supreme Court in Food Corporation of India (supra) and Kanwar Singh Saini (supra). 17. The impugned order when is adjudged on the anvil of above analysis cannot be faulted with. 18. As the application under Order 39, Rule 2A CPC is not found to be tenable and the impugned order is upheld, another issue as to whether it is the person or the company which is a necessary party in a proceedings under Order 39, Rule 2A CPC is not gone into and is kept open. 19. In the result, petition fails and is dismissed. No costs.