JOGINDRA PATJOSHI ALIAS PATTAJOSHI v. MANAGING COMMITTEE, PANCHAYAT HIGH SCHOOL, CHILIPA, ODISHA
2018-04-11
D.P.CHOUDHURY
body2018
DigiLaw.ai
JUDGMENT : D. P. CHOUDHURY, J. 1. This is an application under Order 39, Rule 2-A of the Code of Civil Procedure, 1908 (hereinafter called as "the Code") filed by the appellant to punish the respondents for violating the interim order of status quo dated 18.02.2016 passed by this Court in Misc. Case No.64 of 2016. 2. The unshorn details leading to this Misc. case is that the appellant-plaintiff has filed Civil Suit No.66 of 2008 before the learned Civil Judge (Senior Division), Dharamgarh for declaration of gift deed, dated 4.7.1989 as invalid with further declaration of right, title and interest of the plaintiff thereon with consequential relief for confirmation of the possession over the suit land. In short, the story of the plaintiff is that he being owner of the suit land and some villagers executed the gift deed donating the suit land and other land in favour of the respondent No.1-school. Since the school has not utilized the suit land, the plaintiff issued notice to the school to cancel the gift deed executed by him. Since the respondents did not consider the quest of the plaintiff, the suit has been filed. 3. Learned trial Court, after learning both parties, dismissed the suit against which the present appellant filed RFA No.22/81 of 2011 before the first appellate-Court, i.e., learned Additional District Judge, Dharamgarh and the first appellate Court, after hearing both parties, has dismissed the RFA No.22/81 of 2011, against which the plaintiff has filed this second appeal before this Court, which has been admitted vide order dated 15.10.2015 after framing substantial question of law. 4. It is submitted by Mr.G.Mishra, learned counsel for the appellant-plaintiff that during pendency of the second appeal before this Court, Misc. Case No.64 of 2016 has been filed by the appellant to injunct the respondents from disturbing his possession on the suit land and this Court, vide its order dated 18.02.2016, directed both parties to maintain satus quo as on that date in respect of the suit land till the next date of listing. 5. Mr.
Case No.64 of 2016 has been filed by the appellant to injunct the respondents from disturbing his possession on the suit land and this Court, vide its order dated 18.02.2016, directed both parties to maintain satus quo as on that date in respect of the suit land till the next date of listing. 5. Mr. Mishra, leaned counsel for the appellant further submitted that in spite of interim order of status quo passed by this Court, the respondents have violated the said order by doing plastering work of the building, removing the poles after slab casting, fixed doors and windows and have also constructed a concrete road and a tube well on the suit land. Not only this but also the opposite parties made white washing of the building. 6. Mr.Mishra, learned counsel for the appellant submitted that the original order in Misc. Case No.64 of 2016 was passed in a petition filed to restrain the respondents from making any further construction or changes over the suit land till disposal of the second appeal and at the time of issuing the process, this Court, after hearing the appellants, passed an interim order directing both parties to maintain status quo over the suit land. Since the interim order of status quo has been violated by making development of the building and constructing of the road along with installation of tube well, the same are utterly changing the status of the case land. There lies disobedience to the order of this Court by the respondents. According to him Order 39, Rule 2-A of the Code is clear to show that any wrong doer must be punished either by civil imprisonment or attachment of the property. Since the respondents have clearly violated the order of status quo passed by this Court, they should be punished by attaching the property of respondent No.1-school and the bank account of the school and the Secretary of the Managing Committee of the school should be sent to civil imprisonment for flouting the order of this Court. 7. Mr.B.S.Rayaguru,. learned counsel for the respondents, relying upon the objection/reply affidavit dated 8.10.2017, submitted that they have received the status quo order passed by this Court in Misc. Case No.64 of 2016 on 5.3.2016.
7. Mr.B.S.Rayaguru,. learned counsel for the respondents, relying upon the objection/reply affidavit dated 8.10.2017, submitted that they have received the status quo order passed by this Court in Misc. Case No.64 of 2016 on 5.3.2016. Before receipt of the notice, the respondents have already fitted the doors and windows of the rooms and white washing of the building which has already been completed for running of usual classes. In such circumstances, the management of the school was constrained to shift the class room to the new building for the safety of the lives of the student. The respondents have never flouted the order of status quo passed by this Court and fully obedient to the order of this Court. Under such circumstance, the interim order of status quo passed by this Court is well honoured and question of violation of the same does not arise. 8. Considered the submissions of the learned counsels for the respective parties and perused the material available on record. This Court has passed the order of status quo on 18.2.2016 in Misc. Case No.64 of 2016, which is placed in the following manner: Misc.Case No. 64 of 2016 4. 18.02.2016 Heard the learned counsel for the appellant. Issue notice to the respondents by registered post with A.D. Requisites be filed within a week. List this matter on 28.3.2016. As an interim, parties are directed to maintain status quo as on today in respect of the suit land till the next date of listing. Xx xx xx xx" 9. After the aforesaid ex parte interim order was passed by this Court, the same is continuing till now. The concurrent findings of the learned Courts below show that the respondents are in possession of the suit land and the respondents-school is continuing there and the appellant is not in possession of the same. 10. It is only stated in this Misc. Case that the respondents, violating the interim order of status quo passed by this Court, did the plastering work, casted the roof, installed the tube-well, removed the poles and fitted the doors and windows etc., but it is not mentioned when all these things happened.
10. It is only stated in this Misc. Case that the respondents, violating the interim order of status quo passed by this Court, did the plastering work, casted the roof, installed the tube-well, removed the poles and fitted the doors and windows etc., but it is not mentioned when all these things happened. The status quo order of this Court is passed under Order 39, Rule-2(l) and (2) of the Code is only to restrain both parties from disturbing the suit property because the property should be preserved till final disposal of the lis, No doubt, Order 39, Rule 2-A speaks in the following manner; "Consequence of disobedience or breach of injunction: (1) In case of disobedience of any injunction granted or other order made under Rule 1 or Rule 2 or breach of any of terms in 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; and (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." 11. The aforesaid provisions clearly shows that proceeding under Rule 2-A of Rule 39 of the Code is serious concern and the Court is empowered to pass order to take away the liberty of an individual and direct the person in fault for detention in civil prison. An order under Rule 2-A cannot be passed under suspicion or as a matter of course, it must be proved that order to be obeyed was clear, unambiguous and, is full knowledge of the content of the order it was disobeyed.
An order under Rule 2-A cannot be passed under suspicion or as a matter of course, it must be proved that order to be obeyed was clear, unambiguous and, is full knowledge of the content of the order it was disobeyed. The Hon'ble Supreme Court, in the case of Kapildeo Prasad Sah v. State of Bihar, (1999) 7 SCC 569 : ( AIR 1999 SC 3215 ), at paragraph-9 have observed in the following manner: "9. For holding the respondents to have committed contempt, civil contempt at that, it has to be shown that there has been wilful disobedience of the judgment or order of the court. Power to punish for contempt is to be resorted to when there is clear violation of the court's order. Since notice of contempt and punishment for contempt is of far reaching consequence, these powers should be invoked only when; a clear case of wilful disobedience of the court's order has been made out. Whether disobedience is wilful in a particular case depends on the facts and circumstances of that case. Judicial orders are to be properly understood and complied. Even negligence and carelessness can amount to disobedience particularly when attention of the person is drawn to the court's orders and its implication. Disobedience of court's order strikes at the very root of rule of law on which our system of governance is based. Power to punish for contempt is necessary for the maintenance of effective legal system. It is exercised to prevent perversion of the course of justice. The aforesaid judgment of he Hon'ble Supreme Court has also followed in the case of C.EIumalai and Others v. A.G.L.Iruayaraj and another, (2009) 4 SCC 213 : ( AIR 2009 SC 2214 ) 12. With due respect to the above decision, it appears that if there is deliberate and wilful violation of the order, then the contemnor would be guilty. Apart from this, for punishment to be imposed for breach of injunction, the party who complained of the breach has to establish that the order of injunction is not open to two interpretations and is unambiguous and the act complained about is not in good faith. So, it is for the plaintiff-appellant to prove that the status quo order passed by this Court has been violated by the respondents wilfully and deliberately.
So, it is for the plaintiff-appellant to prove that the status quo order passed by this Court has been violated by the respondents wilfully and deliberately. As observed above, there is nothing mentioned as to when the respondents did the plastering work, casted the roof, installed the tube-well, removed the poles and fitted the doors and windows etc. It must be made clear that proceeding under Rule 2A for disobeying of a temporary injunction is not a criminal proceeding and prove beyond all reasonable doubts is not required but at the same time, it is a quasi criminal proceeding. 13. When there is clear assertion in the objection/reply affidavit of the respondents that all the repair work of the school, as stated above, have been done before receipt of the interim order of status quo passed by this Court and there is no clear pleadings of the appellant as to when the respondents have violated the interim order of status quo passed by this Court, it must be held that the respondents, being in possession of the suit land, have already completed the repairing works of the school by the time the order of status quo of this Court is received. So, the plaintiff has failed to establish that there is wilful and deliberate violation of the status quo order by the respondents to warrant the liability under Order 39, Rule 2-A of the Code. 14. The school is meant for the children. When the respondents have already taken a plea that they have started the class in a new building for the safety of the children, said development cannot be said to be a criminal act. Every child has got a right of survival, right of protection, right of participation and right of development. Not only this but also the Constitution mandates the enforcement of fundamental right to education of every child. Since the respondents-school authority, being in possession of the suit land, have taken proper care for the safety of the children, at no stretch of imagination, it can be assumed that the respondents-opposite parties have violated the order of status quo, dated 18.02.2016 passed by this Court in Misc. Case No.64 of 2016 wilfully and deliberately. 15. In terms of the above discussion, this Misc. Case deserves no consideration and the same is dismissed accordingly.