Dismissed

Brij Mohan Gupta v. Ratna Shau

Allahabad HC23 Mar 2021CAPL/5319/2020

Case brief

AI extract

What is this about?

The court dismissed a contempt petition filed for violation of a status quo order. It held that where disputed facts regarding breach of injunction exist and an effective alternative remedy under Order 39 Rule 2-A CPC is available, the contempt jurisdiction cannot be invoked to punish disobedience.

What did the court decide?

Contempt petition dismissed with liberty to approach competent court under Order 39 Rule 2-A CPC.

Brij Mohan Gupta Vs Ratna Shau — Contempt of Court | Allahabad HC (2021)

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Court No. - 2 Case :- CONTEMPT APPLICATION (CIVIL) No. - 5319 of 2020 Applicant :- Brij Mohan Gupta Opposite Party :- Ratna Shau Counsel for Applicant :- Pranab Kumar Ganguli

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Hon'ble Suneet Kumar,J.

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Heard learned counsel for the parties.

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The instant contempt petition has been filed for violation of the order dated 14.11.2019 passed the Hon'ble Court in Second Appeal No.854 of 2016 (Brij Mohan Gupta Vs. Ratna Sahu and others), whereby, parties were directed to maintain status quo with regard to the property in dispute.

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Since disputed questions of fact are involved, which cannot be gone into in contempt jurisdiction. Applicant has remedy under Order 39 Rule 2(A) of the Code of Civil Procedure. This Court in contempt jurisdiction would decline to return finding on disputed questions of fact.

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Reference may be made in this regard to a decision of this Court dated 18.09.2013 passed in Contempt Application (Civil) No. 4384 of 2013, wherein similar issue fell for consideration. The order dated 18.09.2013 reads thus:

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"Heard learned counsel for the applicant.

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This application under Section 12 of the Contempt of Courts Act, 1971 (for short the 'Act') has been filed to punish the opposite parties for alleged willful disobedience of temporary injunction order dated 27.2.2006 passed by the Civil Judge (Junior Division), Jaunpur in O.S. No. 1589 of 2003.

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It has been alleged that opposite parties have violated the order of statusquo passed by the Civil Judge by making construction forcibly on the suit property on which temporary injunction was operating.

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Section 10 of the Act vests every High Court with the same jurisdiction, powers and authority in respect of courts sub-ordinate to it as it has and exercises in respect of of contempt of itself, only exception being a contempt in respect of sub-ordinate court where such contempt is an offence punishable under the Indian Penal Code.

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The question which arises for consideration is whether an application under Section 12 of the Act is liable to be maintained for an alleged violation of temporary injunction order passed by a court in exercise of powers conferred by Order XXXIX Rule 2A C.P.C. Order XXXIX Rule 2A C.P.C reads as under :

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"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 rule 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

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prison for a term not exceeding three months, unless in the meantime the Court directs his release."

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The issue came up for consideration before a learned single Judge of this Court in the case of Smt. Indu Tiwari vs. Ram Bahadur Chaudhari and others, AIR 1981 Allahabad 309 wherein it was observed :

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"It is well settled that the matter of contempt is always an issue between the court and the contemner. No right vests in a private party to get any person punished for contempt. He can only inform the Court of the contempt committed by any person and thereafter it is for the Court to deal with the contemner. The party which informs the Court about the alleged contempt can only assist the Court in coming to the conclusion whether any contempt has been committed or not. As opposed to this, if a person obtains in interim injunction or a final decree for injunction, he gets a right to enforce it. The provision for enforcement of an interim injunction is contained in Order XXXIX Rule2-A, Civil P.C. and the provision for enforcement of a decree for injunction is contained in Order XXI, Rule 32, Civil P.C. According to the said provision, a person who disobeys an injunction order can be put into prison and his property can also be attached. The attachment can continue for one year and if the party against whom the order or decree is passed refused to comply, the property can even be sold.The orders passed in proceedings under Order XXXIX Rule 2-A as well as the orders passed in execution proceedings under Order XXI. Rule 32 of the Code of Civil Procedure are appealable orders. Further the proceedings under Order Order XXXIX Rule 2-A as well as execution proceedings under Order XXI, Rule 32 are elaborate proceedings in which the parties can adduce their evidence and they can examine and cross-examine the witnesses. As opposed to this this, the proceedings under the Contempt of Courts Act are of summary nature. In my opinion, a person who has got an effective alternative remedy of the nature specified under Order XXXIX, Rule 2-A or under Order XXI, Rule 32, Civil P.C.should not be permitted to skip over that remedy and take resort to initiate proceedings under the Contempt of Courts Act. The least that can be said is that it would not be a proper exercise of discretion on the part of this Court to exercise its jurisdiction under the Contempt of Courts Act when such an effective and alternative remedy is available to any person. I am fortified in taking this view by the observations made in Ram Rup Pandey v. R.K. Bhargava, (AIR 1971 All 231) and Calcutta Medical Stores v. Stadmed Private Ltd., ((1977) 81 Cal WN 209). Relying on these two decisions I myself took the same view recently in Abdul Sattar v. Hira Lal (Civil Misc. Contempt Case No. 96 of 1979 decided on 20-2-1981)."

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Again in the case of of S.G. Pagaree vs. Zonal Manager, Food Corporation of India, New Delhi and others, reported in 1987 Vol. I AWC 506, it has been observed in paragraph 9 as under :

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"The contempt petition, therefore, deserves to be dismissed on facts for the reasons given above, but before taking leave of the matter I would like to observe that the petitioner had effective alternative remedy of the nature specified under Order 39 Rule 2-A of the CPC and should not be permitted to skip over that remedy and take resort to initiate the proceedings under the Contempt of Courts Act. In Smt. Indu Tewari v. Ram Bahadur Choudhary, 1981 AWC 521 it has been held that under such circumstances it would not be a proper exercise of discretion on the part

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of the High Court to exercise its jurisdiction under the Contempt of Courts Act when such an effective and alternative remedy is available to any person. Same view has been taken in Anis Ahmad Khan v. State of U.P., 1985 AWC 25."

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In the case of Savitri Devi (Smt.) v. Civil Judge (Junior Division), Gorakhpur and others, reported in 2003 Vol. I ARC 545, while considering the scope of Order XXXIX Rule 1 & 2 C.P.C. vis-a-vis Section 10 of the Contempt of Courts Act, it has been held as under :

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"Thus, it is evident froOpposite party no.2 is present. m the above discussion that the proceedings are analogous to the proceedings under the Act, 1972. The only distinction is that as the Legislature, in its wisdom, has enacted a special provision enacting the provisions of Order XXXIX, Rule 2A, it would prevail over the provisions of the Contempt of Courts Act. Though the High Court, by virtue of the provisions of Section 10 of the Act, 1972 can initiate the contempt proceeding even for disobedience of the injunction order granted by the Civil Court, but the exercise of such power is discretionary and generally does not require to be exercised in view of the special power conferred upon the Civil Court itself as held by the Division Bench of the Delhi High Court in Dr. Bimal Chandra Sen v. Mrs. Kamla Mathur, 1983 Cri.L.J. 494."

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In the above report, it has also been held in paragraph 25 as under :

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"25. In view of the above discussion, once reaches the inescapable conclusion that proceedings under Order XXXIX, Rule 2A are quasicriminal in nature and are meant to maintain the dignity of the Court in the eyes of the people so that the supremacy of law may prevail and to deter the people for mustering the courage to disobey the interim injunction passed by the Court."

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Similar view has also beeOpposite party no.2 is present. n taken by various other High Courts. The reference may be made to the decision of the Karnataka High Court in the case of Rudraiah, Complainant v. State of Karnataka and others, AIR 1982 Karnataka 182. A Division Bench of the said Court held as under :

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"In cases of disobedience or breach of injunction order issued temporarily during the pendency of a suit, either under Rule 1 or 2 of Order 39, C.P.C. action is contemplated by the very court which issues the injunction order under Rule 2A of Order 39, C.P.C. It contemplates the forfeiture of property as also putting of the person who commits breach into civil prison for a period not exceeding three months. The provision thereunder is obviously based on the principle of contempt of Court. That being so, the general provisions made under the Contempt of Courts Act cannot be invoked by the decree holder, for forcing the party to obey the injunction order. It is a well settled principle of law that when there is special law and general law, the provisions of the special law prevail over the general law and when special procedure and special provision are contained in the C.P.C. itself under Order 39 Rule 2A for taking action for the disobedience of an order of injunction, the general law of contempt of Court cannot be invoked. If such a course encouraged holding that it amounts to contempt of court, when an order of subordinate court is not obeyed, it is sure to throw open a floodgate of litigation under contempt jurisdiction. Every decree-holder can rush to this court stating that the

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decree passed by a subordinate court is not obeyed. That is not the purpose of Contempt of Courts Act.

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In the case of Food Corporation of India Vs. Sukh Deo Prasad 2009(3) SC 2330 and Kanwar Singh Saini v. High Court of Delhi, (2012) 4 SCC 307 the Hon'ble Supreme Court held that the power exercised by a Court under Order 39 Rule 2-A of the Code is punitive in nature, akin to the power to punish for civil contempt under the Contempt of Courts Act, 1971 and such powers are to be exercised with great caution and responsibility and in case a final order order the decree lies in execution and not in an action of contempt or disobedience and in case of breach of temporary injunction, the remedy is available under Order XXXIX Rule 2A which is punitive nature, akin to the power to punish for civil contempt under 1971 Act.

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Contempt of court is essentially a matter which concerns the administration of justice and the dignity and authority of courts and judicial tribunals. It is not a right of a party to be invoked for the redress of his grievances. It is also not a mode by which the rights of a party, adjudicated upon by a Court or Tribunal can be enforced against another party. Moreover, if the matter, as in the present case, requires a detailed enquiry, it must be left to the court which passed the order and which presumably is fully acquainted with the subject-matter of its own order. When the matter relates to mere infringement of an order, as between parties, it is clearly inexpedient to invoke and exercise contempt jurisdiction as a mode of executing the order, merely because other remedies may take time or are more circumlocutory in character. Contempt jurisdiction should be reserved for what essentially brings the administration of justice into contempt or unduly weakens it.

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A perusal of the facts of the case in hand goes to show that the applicant has already invoked the jurisdiction of the trial court by making an application under Order XXXIX Rule 2-A C.P.C. alleging breach of temporary injunction which is pending. The dispute requires a detailed inquiry with regard to allegation having made construction forcibly on the suit land in violation of the temporary injunction which can be gone into more effectively and properly under the provision of Rule 2-A Order XXXIX of the C.P.C.

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For the aforesaid facts and reasons, an application under Section 12 of the Contempt of Courts Act, 1971 for alleged violation of a temporary injunction granted by the civil court is not liable to be entertained under the contempt jurisdiction and accordingly stands dismissed."

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In view thereof, remedy for the applicant is to approach the competent court under Order 39 Rule 2A.

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The contempt petition is, accordingly, dismissed with the liberty aforesaid.

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Order Date :- 23.3.2021//SK Goswami

Brij Mohan Gupta v. Ratna Shau

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Brij Mohan Gupta v. Ratna Shau

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