JUDGMENT Cav No.1419/2020 & Cav. No.1420/2020 Learned counsel appears for the caveators. Caveats stands discharged. Application for furnishing court fee, affidavit and vekalatnama is allowed and time to do the needful is extended by four weeks. Application is disposed of. CR 52/2020 1. Respondent Nos. 1 to 5 [„plaintiffs ] hold licences in form JKEL-2 for retail vending of IMFL and Beer etc. issued to them by the Excise Commissioner, J&K Jammu [“petitioner No.2 herein”] under J&K Liquor Licence and Sales Rules, 1984 [“Rules of 1984”] framed under the J&K Excise Act, Svt. 1958 (hereinafter referred to as „the Act ). JKEL-2 is a licence authorizing the holder retail sale of IMFL and Beer in terms of the Act and the rules framed thereunder. It is ordinarily issued for a financial year and is renewed for the next financial year and so on. As is claimed that as per the Excise Policy issued for the year 2018-19, the renewal to the licences issued in form JKEL-2 has been accorded for a period of five years i.e, w.e.f the financial year 2018-2019 to the financial year 2022-23. 2. It appears that petitioner No.2, who, in terms of Section 22 of the Act, is the competent authority to cancel or suspend the liquor licence, came to know that the licences held by the plaintiffs had been transferred to persons other than legal heirs/family in violation of the Rules of 1984. Petitioner No.2, with a view to take action against the illegal transfer of licences, put the plaintiffs to show cause notices as to why the licences held by them be not cancelled for violation of the rules aforesaid. The plaintiffs, instead of replying the show cause notices, for which four weeks time had been granted to them, jointly filed a suit before the Court of 2nd Additional District Judge, Jammu (hereinafter referred to as the „trial Court ) seeking, inter alia, a decree of declaration to declare the impugned show cause notices as null and void ab initio, inoperative and ultra vires the authority and jurisdiction of the defendants. As a consequential relief, the plaintiffs also prayed for a decree of permanent prohibitory injunction restraining the defendants i.e the petitioners and proforma respondents, jointly and severally from undertaking any act calculated to affect/infringe or disturb the working of plaintiffs respective licences. 3. As a consequential relief, the plaintiffs also prayed for a decree of permanent prohibitory injunction restraining the defendants i.e the petitioners and proforma respondents, jointly and severally from undertaking any act calculated to affect/infringe or disturb the working of plaintiffs respective licences. 3. The trial Court entertained the suit and vide order dated 04.07.2020, while issuing the notice to the defendants also provided for interim measure by issuing a temporary injunction thereby keeping the impugned show cause notices in abeyance and directing the parties to maintain status quo with respect to the respective licences of the plaintiffs till next date of haring. It further transpires that the defendants appeared before the trial Court and filed an application under Order 7 Rule 11 of CPC for rejection of the plaint. 4. During the course of hearing of this petition, it was reported to this Court that the arguments on the application filed under Order 7 Rule 11 CPC have been concluded and the order from the trial Court is awaited. While the aforesaid interim order dated 04.07.2020 was in operation, the plaintiffs, alleging violation thereof, filed a petition under Order 39, Rule 2-A of CPC seeking action against six Sub- Inspectors of the Excise Department. In the said petition, the plaintiffs also arrayed some whole sale dealers of the liquor as party respondents. The allegation made in the said petition was that, though in compliance to the interims directions passed by the trial Court, the liquor licences of the plaintiffs have not been cancelled, nor have they been asked to down their shutters, yet the Field Officers i.e Sub Inspectors of Excise Department working in their respective areas have refused to issue transport permits [“TPs”] to facilitate the stock of liquor to be transferred from the whole sale dealer to their licensed premises. 5. It is interesting to note that action for disobedience of interim injunction was sought to be initiated only against the Sub-Inspectors of the Excise Department and not against the authorities, who under the Act and the rules framed thereunder, are competent to issue the TPs. Be that as it may, the alleged contemnors responded to the contempt notice issued by the trial Court and filed their reply. Be that as it may, the alleged contemnors responded to the contempt notice issued by the trial Court and filed their reply. In the reply filed, the alleged contemnors informed the Court that since the matter was sub-judice in the trial Court and that they had not received any interim order from the Court, they are awaiting a formal order/clarification from the higher ups for issuance of TPs in favour of the plaintiffs. It was also the stand of the alleged contemnors that under the Act and the rules framed thereunder, they are not the competent authorities to issue TPs. It was pleaded that the moment the requisition for issuance of TPs was received from the plaintiffs, the matter was taken up with the higher ups for instructions, but no instructions were received by them. 6. The plaintiffs, instead of arraying the competent authorities in the petition as party respondents, contested the objections filed by the six Sub Inspectors against whom action had been sought to be initiated under Order 39 Rule 2-A of CPC. The reply submitted by the alleged contemnors came to be considered by the trial Court on 5th August 2020 when the trial Court, after taking note of the stand of the alleged contemnors that they were not the party in the suit or nor were they responsible for issuance of TPs, came to the conclusion that the order passed by the trial Court so long as it is in operation must be respected and complied with by all, irrespective of hierarchy. Without holding the alleged contemnors guilty of disobedience of the order or otherwise, the trial Court, by way of interpretation/amplification of the interim order directed the Deputy Excise Commissioner (Executive), Jammu to ensure that TPs for supply orders placed by the plaintiffs with the proforma respondents (whole sale vendors) for supply of liquor stock are signed and issued by the contemnors for the areas of their respective jurisdiction within a period of two days from the passing of the order. The Deputy Excise Commissioner (Executive), Jammu was also asked to submit a compliance report. 7. Reacting to the aforesaid order dated 05.08.2020, the Deputy Excise Commissioner (Executive), Jammu moved an application seeking recall/review of the said order on the ground that the competent authority under the Act and the rules framed thereunder was the Excise Commissioner, J&K, Jammu and not him. 7. Reacting to the aforesaid order dated 05.08.2020, the Deputy Excise Commissioner (Executive), Jammu moved an application seeking recall/review of the said order on the ground that the competent authority under the Act and the rules framed thereunder was the Excise Commissioner, J&K, Jammu and not him. Reliance was placed on SRO 617 of 1971 dated 23.12.1971 issued by the Government in the exercise of powers conferred by clause (a) of Sub-section (2) of Section 3 of the Act. The said application came to be considered by the trial Court and vide order dated 17.08.2020, impugned in this petition, the trial Court directed the Deputy Excise Commissioner (Executive), Jammu to file reply as to why the proceedings for willful defiance of the order dated 05.08.2020 passed by this Court be not initiated against him. The trial Court also directed the Excise Commissioner, J&K, Jammu to ensure compliance of order dated 05.08.2020 passed in the contempt petition read with order dated 4th July 2020 passed in the interim application by issuing requisite directions to the Sub-Inspectors of the concerned areas for ensuring issuance of TPs to the plaintiffs. It is this order as also the order dated 05.08.2020 passed in the contempt proceedings initiated under Order 39 Rule 2-A of CPC which are subject matter of challenge in this petition. 8. The challenge to the impugned orders by the petitioners is mounted primarily and fundamentally on the ground that the Civil Court trying the petition under Order 39, Rule 2-A of CPC cannot go beyond the interim directions passed in the suit. It is contended that the jurisdiction of the civil Court hearing a petition under Order 39, Rule 2-A of CPC is limited to the extent of attachment of the property of the contemnor or putting him in jail for non-compliance of the order passed under Order 39 Rule 1 and 2 of CPC and that the trial Court has no jurisdiction or competence to pass fresh directions, either by way of interpretation or amplification. 9. Per contra, Mr. Rahul Bharti, learned counsel, appearing for respondents 1 to 5 submits that the impugned orders have been passed by the trial Court only to ensure compliance of interim order passed on 4th July 2020. 9. Per contra, Mr. Rahul Bharti, learned counsel, appearing for respondents 1 to 5 submits that the impugned orders have been passed by the trial Court only to ensure compliance of interim order passed on 4th July 2020. It is argued that the clear mandate of interim order dated 4th July 2020 is to maintain status quo with regard to the licences of the plaintiffs and there would be clear violation of order of status quo with regard to the licences, if the defendants are permitted to act in a manner which would choke the plaintiffs of the supplies of liquor to be sold in their licenced premises. It is further argued that in case the action of the respondents in not issuing the TPs in favour of the plaintiffs is countenanced, the plaintiffs would be left with their licenced premises without there being any liquor stock, to be offered for sale. It is, thus, submitted that, what the defendants could not do directly in view of the order dated 04.07.2020, is being done by them indirectly by refusing to issue the TPs. By doing so, the defendants have succeeded in stalling the purchase and transit of liquor stock from the whole sale dealer to their licenced premises. 10. Having heard learned counsel for the parties and perused the record, it is necessary to bear in mind that the orders impugned in this petition are not revisable under Section 115 of the CPC being orders interlocutory in nature. The jurisdiction vested in this Court by virtue of Article 227 of the Constitution of India is limited and circumscribed. Unless a case of “exercise of jurisdiction not vested in the trial Court” is made out or it is demonstratively shown that the impugned orders, if allowed to stay, would result in serious miscarriage of justice, this Court would be loath to interfere with the orders of moment passed by the trial Court in civil proceedings before it. Reference in this regard is invited to a judgment rendered by the Hon ble Supreme Court in case titled ‘Punjab National Bank v. O.C Krishnan and others, (2001) 6 SCC 569 .11. In the light of the legal position well settled by the Hon ble Supreme Court, the rival contentions of the parties are required to be analyzed. 12. Reference in this regard is invited to a judgment rendered by the Hon ble Supreme Court in case titled ‘Punjab National Bank v. O.C Krishnan and others, (2001) 6 SCC 569 .11. In the light of the legal position well settled by the Hon ble Supreme Court, the rival contentions of the parties are required to be analyzed. 12. Before determining, as to whether the impugned orders are an outcome of transgression of jurisdictional limits by the Civil Court or not, it is necessary to understand the nature of the order passed by the trial Court on 05.08.2020 in the contempt petition. The order dated 04.07.2020 of which the plaintiffs allege violation is an ex parte order passed in the suit on the date of its presentation. The order dated 4th July, 2020 is a lengthy order running into about fifteen pages. The trial Court has discussed in detail all the aspects of the matter which it was likely to confront in the suit. Usually, the interim orders passed in ex parte on the date of presentation of the suit are very precise and concise, but the trial Court in the instant case has gone into excruciating details of the merits of the controversy. Be that as it is, an order of the Court, whatever be its worth, is required to be complied with by all the parties to the suit and in case of violation, the Civil Court has jurisdiction to proceed under Order 39 Rule 2-A of CPC. 13. A plain reading of Rule 2-A of Order 39 CPC shows that it can be invoked in a case where there is 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. Under Rule 1 or Rule 2 of Order 39 of CPC, temporary injunction can only be granted against the defendants. A conjoint reading of Rule 1 and 2 and Rule 2-A of Order 39 of CPC makes it abundantly clear that an action for disobedience of the interim injunction can be initiated only against the defendants. Under Rule 1 or Rule 2 of Order 39 of CPC, temporary injunction can only be granted against the defendants. A conjoint reading of Rule 1 and 2 and Rule 2-A of Order 39 of CPC makes it abundantly clear that an action for disobedience of the interim injunction can be initiated only against the defendants. It needs to be reminded that the jurisdiction vested in Civil Court under Rule 2-A of Order 39 of CPC, though punitive in nature, is different from the contempt jurisdiction vested in the High Court under the Contempt of Courts Act, 1977. 14. Viewed thus, the initiation of proceedings under Order 39 Rule 2-A of CPC against the six Sub-Inspectors of Excise Department, who were not party defendants in the suit, was perhaps not permissible. Further more, it may be pointed out that, incase it is established before the Civil Court that the order of interim injunction passed by it has been disobeyed by a party, the Court may order the property of such person attached and may even detain such person in civil prison for a term not exceeding three months. The attachment ordered under Rule 2-A of Order 39 of CPC would remain in force only for one year and, at the end of which, if the disobedience of the order continues, the property attached would be sold and out its proceeds, the Court may award such compensation as it thinks fit to the injured party. 15. Rule 5 of Order 39 of CPC is also noteworthy and is reproduced here- in-below: “5. Injunction to corporation binding on its officer An injunction directed to a corporation is binding not only on the corporation itself, but also on all members and officers of the corporation whose personal action it seeks to restrain”. 16. The aforesaid Rule provides that if an injunction is directed to a corporation, it shall be binding not only on the corporation itself, but also on all the members and officers of the corporation whose personal action it seeks to restrain. 17. It may be noted that in the suit filed by the plaintiffs, the Union Territory of Jammu and Kashmir is not a party defendant. 17. It may be noted that in the suit filed by the plaintiffs, the Union Territory of Jammu and Kashmir is not a party defendant. Whether or not, the Union Territory of Jammu and Kashmir is a necessary party in an action against public officers, though performing statutory functions, may be an issue which is required to be debated by the parties before the trial Court. But the fact remains that six Sub-Inspectors of Excise Department against whom an action was sought to be initiated under Rule 2-A of Order 39 of CPC are not party defendants in the suit and this exactly was their stand in the contempt petition. 18. The trial Court, instead of deciding the stand taken by the alleged contemnors in the contempt proceedings, passed another order on 05.08.2020 issuing fresh directions to the Deputy Excise Commissioner (Executive), Jammu to issue TPs in favour of the plaintiffs. This order, as is claimed by learned counsel for the plaintiffs, was issued in-aid of implementation of interim order dated 04.07.2020. 19. A careful perusal of order dated 05.08.2020 passed by the trial Court makes it clear that the trial Court when confronted with the stand of the alleged contemnors (Sub-Inspectors) that they were not the competent authorities to issue TPs, nor were they party defendants in the suit, the trial Court, in its wisdom, thought of directing Deputy Excise Commissioner (Executive) to do the needful. The Deputy Excise Commissioner also responded to the order dated 05.08.2020 by filing an application for recall/review of the said order. It was contended that under the Act and the rules framed thereunder, it is the Excise Commissioner, J&K, Jammu, who alone is competent to issue TPs in favour of the plaintiffs. 20. One fails to understand as to why the trial Court, instead of arraying the Excise Commissioner, J&K as party respondents in the contempt proceedings, passed another order on 17.08.2020, this time asking the Excise Commissioner, J&K to issue TPs. This Court well appreciates the anxiety of the trial Court to ensure compliance of the temporary injunction passed by it on 04.07.2020, but the manner in which it has been done leaves much to be desired. 21. This Court well appreciates the anxiety of the trial Court to ensure compliance of the temporary injunction passed by it on 04.07.2020, but the manner in which it has been done leaves much to be desired. 21. The order dated 17.08.2020 could have been passed by way of clarification of the interim order or an amplification thereof in the suit, but such orders which may be tantamount to interpretation of interim order passed in the suit are best avoided in the exercise of jurisdiction under Order 39 Rule 2-A of CPC and must not be passed without affording an opportunity of being heard to the concerned party. It may be noted that the impugned order dated 05.08.2020 was passed and direction was issued to the Deputy Excise Commissioner to issue TPs without even arraying him as party respondent in the contempt petition and without affording him an opportunity of being heard. Similarly, the impugned order dated 17.08.2020 was passed without first arraying the Excise Commissioner as party respondent in the contempt petition and affording him an opportunity of being heard. 22. The impugned orders have been passed in clear breach of principles of natural justice. The impugned orders passed under Order 39 Rule 2-A of CPC are, thus, not sustainable being passed in the exercise of jurisdiction not vested in the Civil Court. The view I have taken herein is supported by a judgment of the Hon’ble Supreme Court rendered in the case of Food Corporation of India v. Sukh Deo Parshad, (2009) 5 SCC 665 . Paragraph Nos. 18, 19 and 24 are relevant in the context of controversy involved in this petition and are, therefore, reproduced here-in-below with advantage: “18. 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. 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. 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. 19. Even otherwise, the respondent had no locus to file an application under Order 39 Rule 2A alleging disobedience of the order dated 27.5.1996. The plaintiff bank which filed the application dated 12.1.1996 on which the said order dated 27.5.1996 was passed, did not complain of any disobedience or breach of the order dated 27.5.1996, nor sought any action or relief against FCI alleging non- compliance or disobedience of the order dated 27.5.1996. As the interim order dated 27.5.1996 was not made on an application made by the respondent and as the interim order was not intended for the benefit to the respondent who was the first defendant in the suit, he could not be said to be a person aggrieved by the alleged disobedience or breach of the order dated 27.5.1996. 24. The power exercised by a court under order 39, Rule 2A of the Code is punitive in nature, akin to the power to punish for civil contempt under the Contempt of Courts Act, 1971. The person who complains of disobedience or breach has to clearly make out beyond any doubt that there was an injunction or order directing the person against whom the application is made, to do or desist from doing some specific thing or act and that there was disobedience or breach of such order. While considering an application under order 39 Rule 2A, the court cannot construe the order in regard to which disobedience/breach is alleged, as creating an obligation to do something which is not mentioned in the ‘order’, on surmises suspicions and inferences. The power under Rule 2A should be exercised with great caution and responsibility. While considering an application under order 39 Rule 2A, the court cannot construe the order in regard to which disobedience/breach is alleged, as creating an obligation to do something which is not mentioned in the ‘order’, on surmises suspicions and inferences. The power under Rule 2A should be exercised with great caution and responsibility. It is shocking that the trial court had entertained an application under Order 39 Rule 2A from a person who was not entitled to file the application, has accepted an interpretation of the order which does not flow from the order, and has created a liability where none existed, resulting in attachments of the assets of FCI to an extent of more than Rs.1.12 crores. The order dated 15.12.2004 cannot be supported or sustained under any circumstances”. 23. In view of the foregoing discussion, I am of the view that the assumption of jurisdiction by the trial Court under Order 39 Rule 2-A of CPC and passing of the impugned orders in the exercise thereof is bad in the eyes of law and cannot be countenanced. The impugned orders, therefore, deserves to be quashed and set aside. Ordered accordingly. 24. Notwithstanding the fact that this Court has not found favour with the impugned orders and has quashed them, the defendants (appellants herein) are, in no way, absolved of their duty to comply with the order dated 04th July,2020 in letter and spirit. Needless to say that, in terms of the interim injunction issued by the trial Court on 4th July, 2020, the defendants are under an obligation to maintain status quo with regard to the licences of the plaintiffs. Any act or omission on the part of the defendants, which adversely affects the operation of liquor licences held by the plaintiffs, would be disobedience of the interim injunction. Should there be any breach or violation of the interim order dated 4th July,2020, the trial court shall be competent to proceed against a person guilty of such breach or disobedience by invoking Rule 2-A of Order 39 of CPC. Least that is required is to array such alleged contemnors as party respondents and afford them an opportunity of being heard before passing an appropriate order as may be required in the facts and circumstances of the case. Least that is required is to array such alleged contemnors as party respondents and afford them an opportunity of being heard before passing an appropriate order as may be required in the facts and circumstances of the case. In case the defendants or any of them is found acting in breach of interim injunction dated 4th July,2020, the trial Court shall proceed in terms of the Order 39 rule 2-A of CPC and inflict penalty as envisaged under the aforesaid Rule and seek enforcement of the order either by attachment of the property of the violator or sending such violator to jail. 25. Needless to remind that under Rule 2-A of Order 39 of CPC, the Civil Court, if comes to the conclusion that there has been breach or violation of the interim injunction passed by the trial Court, is empowered to either attach the property of a person guilty of breach or send him to jail or both. Other than what is envisaged under Rule 2- of Order 39 of CPC, there is no other power vested in the Civil Court for enforcement of its orders. The Court must bear distinction in mind that the power to punish for disobedience is purely punitive and different from the power of the Court to execute its orders. 26. With these observations, the petition is allowed to the extent aforesaid. Connected CMs stand disposed of accordingly.