JUDGMENT/ORDER IN - CONTEMPT No. 1428 of 2009 at Lucknow Dated-25.2.2...

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HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

(Reserved)
Court No. 11
Case :- CONTEMPT No. - 1428 of 2009
Petitioner :- Mohd.Usman
Respondent :- Dr.Satyawan
Petitioner Counsel :- Syed Mohd. Nasir
Respondent Counsel :- G.C.Verma,Sunil Kumar Singh

Hon'ble Anil Kumar,J.

Heard Sri S.M.Nasir, learned counsel for the applicant and Sri Sunil Kumar Singh and Sri G.C. Verma,
learned counsel for the respondent.
Facts in brief in the present case are that initially applicant-plaintiff filed a Suit for permanent injunction in
respect to Plot No. 1145 area 12 Vishwa 30 Viswansi situated in the District Barabanki, Fatehpur registered
as Suit No. 482 of 1992(Mohd. Usman Vs. Dr. Satyavan) in the court of IIIrd Additional Civil Judge, Barabanki.

In the said Suit, an application for grant of temporary injunction under Order XXXIX Rule 1 C.P.C. has been
moved by the applicant-plaintiff, granted on 12.09.1993 but vacated on 30.11.1998.
Aggrieved by the said order, the applicant filed, interim injunction granted on 23.12.1998 by appellate
authority. Subsequently, appeal dismissed by order dated 21.08.2009. Thereafter, the applicant approached
this Court by filing the Writ Petition No. 3157(MS) of 1999 and on 24.11.1999, an interim order was passed in
favour of the petitioner-applicant, till the Suit is decided, the opposite parties are directed to maintain status
quo as exists today.
Further, the Suit No. 482 of 1992 filed by the applicant for permanent injunction was dismissed. He filed a
Regular Civil Misc. Appeal No. 35 of 2001(Mohd. Usman Vs. Dr. Satyavan), dismissed vide judgment and
decree dated 11.08.2003 passed by Additional District Judge, Court no. 10, Barabanki.
Applicant for redressal of his grievances approached this Court by filing second appeal under Section 100
C.P.C. registered as Second Appeal No. 246 of 2003 in which initially on 08.09.2003 an interim injunction
order has been passed, the operative portion of the same is as under :-
"During the pendency of the appeal the parties shall maintain stautus quo as of today with regard to the
disputed land."

Again, a Civil Misc. Application No. 3017 of 2005 was moved on 08.03.2006, an injunction/interim order has
been granted, the relevant portion is as under :-
"In the circumstances, the order dated 27.05.2004 , is hereby recalled. The possession of the appellant from
over the property in question shall not be disturbed."

As per the version of the learned counsel for the applicant, the injunction/interim order dated 08.03.2006
passed by this Court in pending Second Appeal has been violated by the respondent on 25.06.2009 inspite of
the order to maintain status quo and willfully and deliberately disturbed the possession of the applicant, so the
present contempt petition has been filed under Section 12 of the Contempt Court Act, 1971(hereinafter
referred to as ' the Act') for punish the respondent for violation of the injunction/interim order dated 08.03.2006
passed by this Court in second appeal.
Sri G.C. Verma, appearing on behalf of respondent no. 2 submits that it is totally incorrect on the part of the
applicant to submit that his client has disobeyed the order passed by the Writ Court rather present contempt
petition is not maintainable on the other ground that as a specific remedy is available under Order XXXIX Rule
2-A of the Code of Civil Procedure, so the present contempt petition is liable to be dismissed in view of the law
as laid down by the Hon'ble Apex Court in the case of Food Corporation of India Vs. Sukh Deo Prasad 2009
(5) SCC 665 para 38 in which it has been held that Order XXXIX Rule 2-A of the Code of Civil Procedure is
punitive in nature, akin to the power to punish for civil contempt under the Contempt Courts Act, 1971.
I have heard learned counsel for the parties and gone through the record.
First and foremost question which is to be decided in the instant case is whether the present contempt petition
filed by the applicant is maintainable for violation of the interim/injunction order dated 08.03.2006 passed by
this Court in pending second appeal under the provisions of Order XXXIX Rule 1 C.P.C.
In order to resolve the controversy which is involved in the present case, it is necessary to have a glance over
the relevant portion of the provisions of law which governs the field.
Order XXXIX Rule 2-A.

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"Consequences of disobedience of breach of injunction (1) In the case of disobedience of any injunction
granted or other order dame 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 prison for a term not exceeding
three month, unless in the meantime the Court directs his release."

Section 12 of the Contempt Court Act, 1971:-

Section 12. Punishment for contempt of court :- (1) Save as otherwise expressly provided in this Act or in any
other law, a contempt of court may be punished with simple imprisonment for a term which may extend to six
months, or with find which may extend to two thousand rupees, or with both:
Provided that the accused may be discharged or the punishment awarded may be remitted on apology being
made to the satisfaction of the court.
(2) Notwithstanding anything contained in any other law for the time being in force, no court shall impose a
sentence in excess of that specified in sub section (1) for any contempt either in respect of itself or of a court
subordinate to it.
(3) Notwithstanding anything contained in this section, where a person is found guilty of a civil contempt, the
court, if it considers that a fine will not meet the ends of justice and that a sentence of imprisonment is
necessary shall, instead of sentencing him to simple imprisonment, direct that he be detained in a civil prison
for such period not exceeding six months as it may think fit.
(4) Where the person found guilty of contempt of court in respect of any undertaking given to a court is a
company, every person who at the time the contempt was committed, was in charge of, and was responsible
to, the company for the conduct of business of the company, as well as the company, shall be deemed to be
guilty of the contempt and the punishment may be enforced, with the leave of the court, by the detention in
civil prison of each such person.
Provided that nothing contained in this sub section shall render any such person liable to such punishment if
he proves that ht contempt was committed without his knowledge or that he exercised all due diligence to
prevent its commission.
(5)Notwithstanding anything contained in sub-section (4), where the contempt of court referred to therein has
been committed by a company and it is proved that the contempt has been committed with the consent or
connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer
of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of the
contempt and the punishment may be enforced, with the leave of the court, by the detention in civil prison of
such director, manager, secretary or other officer."

From the perusal of the above said provision, it is clear that the proceedings under Order XXXIX Rule 2-A
C.P.C. 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 initiated 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. (See:-Dr. Bimal
Chandra Sent Vs. Mrs. Kamla Mathur, 1983 Crl. L.J. 494)
In the case of S.G. Pagaree Vs. Zonal Manager, Food Coropration of India, New Delhi and others reported in
1987, AWC, 506, it is held by this Court that where alternative remedy under Order XXXIX Rule 2-A C.P.C. is
available, proceeding under the contempt Courts Act should not be taken.
In the case of Pratap Narain Vs. Smt. Nomita Roy and others, reported in 1984, AWC, 567, the similar view
was also expressed and it was held that remedy under Order XXXIX Rule 2-A C.P.C. is far more adequate
and satisfactory remedy as disobedience of an injunction order of the Court below is involved.
In the case of Savitri Devi(Smt.) Vs. Civil Judge(J.D.), Gorakhpur and others, 2003(1) ARC 545, it is held that
in view of the above discussion, once reaches the inescapable conclusion that proceedings under Order
XXXIX Rule 2-A are quashi-criminal 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.
In the case of Food Corporation of India Vs. Sukh Deo Prasad 2009(5) SCC 665 para 38, the Hon'ble
Supreme Court held as under :-
"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. 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 again 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 2-A, 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 2-A should be exercised with great caution and responsibility."

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For the foregoing reasons, the present contempt petition filed by the applicants under Section 12 of the
Contempt Court's Act for alleged non-compliance of the interim order/injunction order granted by this Court in
pending second appeal is not maintainable in view of alternative remedy available under Order XXXIX Rule 2-
A of the Code of Civil procedure to applicant, accordingly same is dismissed.
No order as to costs.

Order Date :- 25/02/2011

krishna/*

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