K JAGDISH PONRAJ & OTHERS V/S A. MUNIRAJU & OTHERS DT:04/12/2008

IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 4TH DAY OF DECEMBER, 2008

P R E S E N T

THE HON’BLE MR. JUSTICE S.R. BANNURMATH
&
THE HON’BLE MR. JUSTICE A.N. VENUGOPALA GOWDA

CONTEMPT OF COURT CASE No.114/2007 (CIVIL)

BETWEEN:

K  JAGDISH PONRAJ AND OTHERS … COMPLAINANTS

(BY SRI. M.G. KUMAR FOR M/S. M.G. KUMAR LAW FIRM, ADVS.)

AND

A. MUNIRAJU & OTHERS … ACCUSED

(BY SRI. M.H. SAWKAR, ADV. FOR A1 TO A3
SRI.H.T. JAGANATHA, ADV FOR A4)
ORDER

In this contempt petition filed under Section 10 read with Section 12 of the Contempt of Courts Act, 1971 (for short, the Act), the complainants have sought to initiate contempt proceedings against the accused and to punish them for disobedience of an order of temporary injunction made by the subordinate court.

2. Brief facts of the case necessary for the disposal of this petition are as follows:

The complainants are the plaintiffs in the suit for specific performance in O.S. No. 1504/06 on the file of the II Addl. Civil Judge (Sr.Dn.), Bangalore Rural District, Bangalore, filed against defendants / accused 1 to 3 herein. In the suit which is still pending, the Trial Court by its order dated 27.06.06, has ordered the issue of temporary injunction restraining the defendants from alienating the suit ‘C’ schedule property till the next date of hearing. The Trial Court had directed to issue the order of temporary injunction to the defendants, on compliance of the stipulation under Order 39 Rule 3(a) of the Code of Civil Procedure, 1908 (for short, ‘Code’). Complainants claim that, they have complied with the condition, namely, compliance of the requirement under Order 39 Rule 3(a) (i) to (iii) of the Code, by sending copies detailed therein, to the defendants by registered post and filing a compliance affidavit in terms of Order 39 Rule 3(b) on 28.06.06. The complainants contend that, the defendants/accused 1 to 3 became aware of the said temporary injunction order on 29.06.06; that the defendants refused to receive the suit summons and the notices, in view of which, the Court Amin affixed the same on the residential premises of the defendants, who did not appear in the Trial Court on 05.08.06, the date fixed for their appearance and they were placed ex-parte and the suit was posted for evidence of the plaintiffs by 17.10.06. The defendants got the suit advanced from 17.10.06 to 19.08.06, filed an application to set aside the order placing them ex-parte and to permit them to contest the suit. The said application having been allowed, the defendants have filed their written statement on 20.01.07, wherein it was stated that, they have already sold and conveyed the property in dispute in favour of one Ramakrishnappa i.e., accused No.4 herein. The
plaintiffs contend that, they made enquiries and learnt that the defendants have made a fraudulent transfer of the property in dispute under a sale deed dated 21.07.06, in wilful violation of the injunction
order passed on 27.06.06 and are guilty of contempt of court and are liable to be punished under Section 2 read with Section 10 of the Act. Contending that the accused are guilty of violating the said injunction order and alleging that the accused are guilty of interfering with administration of justice and hampering the authority of the Court and are liable to be punished as provided under the Act, this contempt petition has been filed with a prayer to punish the accused and to direct accused 1 to 3 to cancel the said sale deed dated 21.07.07 (Annexure-M), in favour of accused No.4.

2.1 The accused 1 to 3 have filed their statements of objections, inter alia contending that, the petition is not maintainable; the remedy for the complainants is to invoke the jurisdiction of the Trial Court under Order 39 Rule 2A of Code and not the provisions of the Act, in view of the decision in the case of HANAMAVVA Vs. B.ALLA BAKSH AND OTHERS, reported in 2002 (2) KLJ 164. They have stated that, they were not aware of the ex-parte order of temporary injunction ordered by the Trial Court and there is no wilful disobedience on their part and hence, they have not committed any contempt of court.

2.2 The fourth accused in his statement of objections has contended that, he has not committed any breach or violation of the order dated 27.06.06 passed by the Trial Court and the proceedings initiated against him is without any just cause or reason; lacks bona fides; that he was not a party to the proceedings in the Trial Court; that no order was communicated to him; that he is a bona fide purchaser in possession of the land and hence the petition is not maintainable.

3. We have heard Sri.M.G.Kumar learned counsel for the complainants, Sri. M.H.Sawkar, learned counsel for accused 1 to 3 and Sri. H.T.Jagannatha, learned counsel for the accused No.4.

4. Sri. M.G.Kumar, contended that, regard being had to the provisions of Section 10 of the Act, this Court has the authority to take cognizance of the contempt complained of and to initiate proceedings against the accused, to punish them in accordance with law and to secure justice to the complainants. He contended that, the procedure / technical objections, should be over-ruled to ensure justice between the parties, since the Act has been specially designed to punish the violators of the Court orders. According to the learned counsel, for the act of contempt committed by the accused, this Court should allow the complainants to prosecute the proceedings, under the provisions of the Act. He contended that, Order 39 Rule 2A of the Code is not efficacious, speedy and because of delay that may take place in the matter of conclusion of the proceedings in the Trial Court and in an appeal thereafter, the accused who are the violators of court order, will be enjoying the fruits of violation, which should not be permitted.

4.1 Sri. M.G. Kumar, relying upon the decision in the case of DELHI DEVELOPMENT AUTHORITY Vs. SKIPPER CONSTRUCTION COMPANY (P) LTD. AND ANOTHER, reported in AIR 1986 SC 2005, contended that, the petition for breach of the injunction order is maintainable under the provisions of the Act. Facts in the said case are that, the respondent (Skipper Construction Company) purchased a plot of land in an auction held by the appellant-Delhi Development Authority (DDA for short). The respondent did not deposit the bid amount and the DDA cancelled the allotment. The respondent approached the High Court which stayed the cancellation. On 29.01.91, an interim order was granted by the Hon’ble Supreme Court subject to the respondent depositing the sums before 08.04.91 and respondent was expressly prohibited from inducting any person interest he building and from creating any rights in favour of third parties. In spite of such prohibitory order, the respondent repeatedly published advertisements in newspapers inviting persons to purchase the plots in the proposed building. The Special Leave Petition was dismissed by the Hon’ble Supreme Court on 25.01.93 and the DDA thereafter, re-entered the building and took physical possession of the property on 10.02.93, free from all encumbrances and as provided in the order of the Delhi High Court. Skipper Construction Company, in spite of the order of the Hon’ble Supreme Court dated 29.01.91, filed a suit in the Delhi High Court seeking injunction against the DDA and obtained interim order staying re-auction of the plot. Noticing the conduct of the respondents, the Hon’ble Supreme Court initiated suo-motu contempt proceedings in exercise of the power under Article 129 read with Article 142 of the Constitution. In the said factual background, the contempt petition was proceeded with.

4.2 Sri. M.G.Kumar, next placed reliance upon the decision in the case of ALL BENGAL EXCISE LICENSEES ASSOCIATION Vs. RAGHAVENDRA SINGH & OTHERS, reported in AIR 2007 SC 1386 wherein, the background facts of the case were; by order dated 04.01.05, a learned Single Judge of the High Court passed an interim order to the effect that, the respondent – authority will be at liberty to process the applications in respect of grant of licences for excise shops but no final selection in respect of such shops shall be made without obtaining specific leave of the Court. The High Court made it clear that, the respondent – authority will not hold any lottery for the purpose of final selection of the excise shops in question without obtaining further orders. The said order was extended on 19.01.05, until further orders. Thereafter, on 28.01.05, a direction for filing the affidavit was made and the interim order was extended. Though said orders were communicated and in spite of full knowledge, the respondents in deliberate and wilful disregard of the orders, caused an advertisement to be published in newspapers for holding lottery for final selection of excise shops and a lottery was also held for the purpose of final selection of the excise shops. The said act was complained as deliberate and wilful disregard of the orders of the High Court and contempt proceedings were initiated, under the provisions of the Act and was proceeded with.

4.3 Both the said decisions related to the matters, wherein the orders had been passed by the High Courts and not the disobedience or breach of the temporary injunction order passed by a subordinate Court and hence, have no application to decide the maintainability of the petition under the provisions of the Act.

5. Per contra, the specific stand taken by the learned counsel for the accused is that, the jurisdiction of this Court under Section 10 of the Act cannot be exercised, to take cognizance of the contempt complained of i.e, for disobedience of an order of temporary injunction of the subordinate court, in as much as the Code itself has necessary provision under Order 39 Rule 2A to punish the persons found guilty in case of breach of any order of injunction. Learned counsel contended that, this Court in similar circumstances has held that, the provisions of the Act cannot be invoked in case of breach of an injunction order passed by a subordinate Court.

6. We have considered the rival contentions and perused the record. The point that arises for consideration is:

“Whether for breach or violation of an order passed by a subordinate Court under Rule 1 or Rule 2 of Order 39 of the Code, contempt petition under Section 10 of the Act is maintainable?”
7. In the case of RUDRAIAH Vs. STATE of KARNATAKA AND OTHERS reported IN 1981 (1) KLJ 33, a contempt petition had been filed in this Court, alleging disobedience of an injunction order passed by a Civil Court, which had been confirmed by an Appellate Court. It was held that, in cases of disobedience or breach of injunctions order issued Temporarily during the  pendency  of a suit either under Rule 1 or Rule 2 of Order 39 of Code of Civil Procedure, it is inexpedient to invoke and exercise contempt jurisdiction under the Act and in such cases, action is contemplated by the very Court which issues the injunction order under Rule 2A of Order 39 Code of Civil Procedure , which contemplates forfeiture of property as also putting the person who commits breach into civil prison for a term not exceeding three months. It was held that, the provision thereunder is obviously based on the principles of contempt of Court and hence, the Act cannot be invoked to force the party to obey the injunction order.

7.1 In case of SHAIK MOHIDDIN Vs.SECTION OFICER, KARNATAKA ELECTRICITY BOARD, KAIWARA  reported in (1994) 4 KLJ 147, agreeing with the ultimate view taken in Rudraiah’s case (Supra) and also noticing the procedural aspects provided for in Rule 13 of High Court (Contempt of Courts) proceedings Rules, 1981, it was held as follows:

20. To conclude, we are clearly of the opinion that so far as the complaint of disobedience of the orders of the Courts below and remedial measures sought for by invoking Section 10 of the Act are concerned, it is not necessary for this Court to take cognizance of the complaints of this kind, inasmuch as the very Court itself whose orders are alleged to have been disobeyed, being competent to make use of the machinery available at its disposal under Rule 2A of O 39 C.P.C., can pass appropriate orders giving reliefs to the aggrieved in accordance with law. It is only when the citizen fails to avail himself of that remedy or when it becomes impossible for him to get the remedy at the hands of the Court passing the order alleged to have been disobeyed, he may think of approaching this Court under Section 10 of the Act and not otherwise.

(Emphasis supplied)

7.2 In the case of H.GOVINDARAJU Vs SHRI.SHANKARALINGE GOWDA, COMMISSIONER, BANGALORE DEVELOPMENT AUTHORITY AND ANOTHER reported in ILR 2007 KAR 3534, the facts were that, the complainant as Plaintiff had filed a suit in the City Civil Court, wherein, the Trial Court passed an interim order directing the parties to maintain the status-quo. Alleging that, despite the status-quo order passed, the respondents demolished the house of the plaintiffs. which is a clear act of disobedience of the order passed by the Trial Court, contempt petition under Section 10 read with Section 12 of the Act, was filed in this Court. It was noticed that, the complainant had also filed an application under order 39 Rule 2A of Code of Civil Procedure to take action against the respondents. The decision in the case of Shaik Mohiddin (Supra) was also brought to the notice of the Court and agreeing with the view taken therein, it was held that, Order 39 Rule 2A CPC provides an appropriate and adequate remedy to the complainant.

7.3 In the case of Hanamawwa (supra), it has been held that, if there is nay violation of the injunction or breach of the order, one can approach the competent Court under Order 39 Rule 2A of Code of Civil Procedure and the Court is competent to take the action.

7.4 In case of KARNATAKA BANK LTD. Vs. A.B. DATAR AND OTHERS, reported in (1993) 2 KLJ 230, while considering the question whether there was any contempt committed by the appellant -bank  by holding the meeting on Oct.29, 1982 in breach of the order passed by the learned Munisiff, it was held as follows:

30. The contention on behalf of the respondent- plaintiffs is that the appellant-bank has disobeyed the order of the Court. The respondents contend that the appellant-bank held that annual General Meeting in contravention of the order of the Munsiff’s Court at Holenarsipur. It is, therefore, obvious that the contempt complained is of the order of the Court of the Munsiff at Holenarsipur. The suit filed by Iyanna in Original Suit No. 204 of 1992, on the file of the Munsiff’s Court at Holenarasipur is a separate suit and the question of consideration of contempt of the order of that Court does not arise in the appeals before this Court, as there is no allegation of disobedience of any order made in the two suits out of which the two appeals arise.
If there is any breach of the order committed by the appellant as alleged, the remedy is available to the respondents – plaintiffs to invoke the provisions under Order 39, Rule 2A of the Civil Procedure Code, that too before the Court in which the alleged breach of the order has taken place and not before this court. With this observation the contention that the appellant is guilty of contempt and that it should be prevent from prosecuting the appeals is rejected.

8. Section 10 of the Contempt of Courts Act, 1971 reads as follows:
Power of High Court to punish contempts of subordinate Courts.-  Every High Court shall have and exercise the same jurisdiction, powers and authority, in accordance with the same procedure and practice, in respect of contempts of courts subordinate to it as it has and exercises in respect of contempts of itself.

Provided that no High Court shall take cognizance of a contempt alleged to have been committed in respect of a Court subordinate to it where such contempt is an offence punishable under the Indian Penal Code (45 of 1860).

From a reading of the provision, it is clear that Section 10 of the Act enables the High Court to exercise the same jurisdiction, power and authority, which it can exercise in respect of contempt of itself, even in respect of contempts of courts subordinate to it.

8.1 Sub-rule (1) of Rule 2A of Order 39 of the code reads as follows:
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 2 or breach of any of the terms on which the injunction was granted or the order made, the Court granting the injunction or marking 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.

(underlining is by us)

An appeal shall lie from an order passed under Order 39 Rule 2A of the Code, in terms of the procedure under Order 43 Rule 1(r )  and under the provision of section 104 of the Code.

8.2 Thus, it is clear that, the Code itself provides for a just procedure and efficacious remedy. It is settled law, that, if the statute provides for a thing to be done in a particular manner, then, it has to be done in that manner alone. The Code itself contains elaborate and exhaustive provision for dealing with the disobedience or breach of injunction order granted or other order made under Order 39 Rule 1 or Rule 2. The reason for conferring such power on a Court is obvious, in that, the Court which granted the order should be able to see that its order is obeyed and if breached, it shall deal with the matter in the manner      provide under law, to see that its order is obeyed and given effect to.

The provision of the Act is not intended to supercede the mode of obtaining relief from the Civil Court as provided under Order 39 Rule 2A or to deny the defences legitimately open in such actions, including the right t0 have or taken away the valuable right of appeal under Section 104 read with Order 43 Rule 1 (r) of the Code. In our considered view, in an exceptional case, where the provision under Rule 2A of order 39 of the Code is rendered incapable of giving relief to an aggrieved party in adequate measure and in proper time, the provisions of the Act can be invoked and a contempt petition filed in this Court. We do not find any exceptional case having been made out by the complainant, pointing out that, the jurisdiction conferred on the Civil Court under Order 39 Rule 2-A of the Code is not adequate to deal with the situation, to grant relief to him in adequate measure and within reasonable time. Under the said provision, Court has been empowered to order the property of the person guilty of disobedience or breach of injunction order to be attached and in addition, may also order such person to be detained in the civil person for a term not exceeding three months and in the meantime, if the Court is satisfied that the order which it made or the injunction which it has granted under Order 39 Rule 1 or 2 has been obeyed, to direct release of the person detained in the civil prison. Further inherent of the powers of the Court under Section 151 of the Code are wide and are not subject to any limitation. In exercise of the power under Order 39 Rule 2-A read with Section 151, the Court can undo a wrong done in violation or disobedience of its injunction order made against a party. Section 10 of the Act can be invoked where there is an act of scandalising, lowering the authority and dignity or coming in the way of administration of justice, by a subordinate Court.

8.3 In the case of R.N. DEY AND OTHERS Vs. BHAGYABATI PRAMANIK AND OTHERS reported in (2000) 4 SCC 400, it has been observed as follows:

7. We may reiterate that the weapon of contempt is not to be used in abundance or misused. Normally, it cannot be used for execution of the decree or implementation of an order for which alternative remedy in law is provided for. Discretion given to the court is to be exercised for maintenance of the court’s dignity and majesty of law. Further, an aggrieved party has no right to insist that the Court should exercise such jurisdiction as contempt is between a contemner and the court.

(Emphasis supplied)
Further it has been held that, a person who does not take steps to execute the decree/order in accordance with the procedure prescribed by law, should not be encouraged to invoke the contempt jurisdiction of the Court for non-satisfaction of the decree or order.
9. The provision under Order 39 Rule 2A(1) relates to the consequence of disobedience or breach of injunction. The remedy available in case of disobedience or breach of injunction is provided therein itself, which in our view, has been made to provide a speedy inexpensive and effective forum and to avoid multiplicity of litigation before different forums. The Legislative policies and intendment should necessarily weigh with us in giving meaningful interpretation to the provision. We do not find any extraordinary case having been made out by the complainants, who are insisting for initiation and prosecution of the proceedings under the Act, than by availing the remedy provided under the Code. From the said perspective, taking into consideration the remedy provided under the Code, the Complaint filed under the Act, for taking action for breach or disobedience of an order of temporary injunction made or granted by the subordinate Court, is not permissible. In our view, when the subordinate court itself has been sufficiently empowered to deal with the situation, where there is disobedience or breach of the injunction order granted by it, the same forum should be approached for relief and to see that its orders are honoured and given effect to rather than seeking punishment under Section 12 of the Act.

For the foregoing reasons, we hold that the petition is not maintainable and is liable to be rejected. However, we make it clear that the rejection of this petition only on the ground of maintainability, will not come in the way of the complainants invoking the jurisdiction of the Civil Court under Order 39 Rule 2A of the Code of necessary relief, which shall be considered expeditiously and on its merit. Ordered accordingly.
No costs.

Sd/-
Judge

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