Diamond Infrastructure Partnership Firm vs Chandaprabhu Homes (Pvt) Limited And Others

Pranay Verma, J

This petition under Article 227 of the Constitution of India has been preferred by the petitioner being aggrieved by the order dated 15.06.2023 passed in MJC No.68/2023 by the Fourth District Judge, Indore whereby his application under Section 151 read with Order 1 Rule 10(2) of the CPC for deletion of his name from the proceedings has been rejected.

The plaintiff/respondent No.1 instituted a civil suit for declaration and permanent injunction before the trial Court. Along with the plaint he also filed an application under Order 39 Rule 1 and 2 of the CPC for issuance of temporary injunction which was allowed by order dated 19.11.2022 and defendant/respondent No.2 was restrained from alienating the suit property. The plaintiff thereafter filed an application under Order 39 Rule 2-A of the CPC before the trial Court contending that in violation of the temporary injunction order dated 19.11.2022 sale deed has been executed by the defendant in favour of the petitioner. Upon being noticed of the proceedings the petitioner filed an application therein for deletion of his name on the ground that since he was not a party to the suit at the time of passing of the temporary injunction order, he cannot be impleaded as a party. The application was contested by the plaintiff by filing his reply to the same and has been rejected by the trial Court by observing that the application preferred by the petitioner can only be decided after recording of evidence.

Learned counsel for the petitioner has contended that since petitioner was not a party to the civil suit, the temporary injunction order dated 19.11.2010 was not binding upon him. In any case he cannot be proceeded with against under the provisions of Order 39 Rule 2-A of the CPC and could not have been impleaded as a party by the plaintiff. Reliance has been placed by him on the decision of this Court in Rajkumar V/s. Tankharam Civil Revision No.883/1995 decided on 07.11.2001 reported in 2002 (1) M.P. Weekly Notes 118.

Per contra, learned counsel for the plaintiff has supported the impugned order and has submitted that the petitioner was very well aware of the injunction order and deliberately violated the same in view of which he has rightly been impleaded as a party in the proceedings under Order 39 Rule 2-A of the CPC. The sale deed executed in his favour was in violation of the injunction order which was binding equally upon the defendant as well as him. The sale deed executed in spite of that order is a clear case of breach of the order punishable under Order 39 Rule 2-A of the CPC in which petitioner is a necessary and a proper party. Reliance has been placed by him on the decision of the Apex Court in State of Bihar V/s. Rani Sonabati Kumari AIR 1961 SC 221, Robust Hotels Private Limited and Others V/s. EIH Limited and Others (2017) 1 SCC 622, of this Court in Sumer Singh S/o Mewaldas and Another V/s. Sanman Singh S/o Khushilal and Others (2011) 1 M.P.L.J. 387 and of the Bombay High Court in Prahlad S/o Nagorao Bodkhe V/s. Sulochna Ramchandra Kawarkhe and Others 2021 (4) Mh.L.J. 419.

I have considered the submissions of the learned counsel for the parties and have perused the record.

In Rajkumar (supra) it has categorically been held by this Court that only those persons can be punished for committing breach of injunction order who are parties to the suit in which the order of injunction was passed. No third person not a party to the suit or against whom no order of injunction is passed under Order 39 Rule 1 and 2 of the CPC can be impleaded as a party in an application filed under Order

39 Rule 2-A of the CPC. That is the factual position in the present case also where the petitioner was not a party to the civil suit when the injunction order was passed on 19.11.2020. He thus cannot be impleaded as party by the plaintiff in the application under Order 39 Rule 2-A of the CPC and his impleadment is not proper.

In Rani Sonabati Kumari (supra) relied upon by the learned counsel for plaintiff the issue was only as to upon whom the injunction order would be applicable and it was held that it would be applicable upon the defendant, his agents, servants and workmen. It was however not held that it would be binding on a person not a party to the suit or that in case of its violation he can be impleaded or punished in proceedings under Order 39 Rule 2-A of the CPC. In Robust Hotels Private Limited (supra) it was held that sale in violation of the injunction order is liable to be set aside. The same has no co-relation with the facts of the present case so also is the case of Sumer Singh (supra) in which the issue as raised in this petition was not involved. In Prahlad (supra) also the issue was not as regards impleadment of a party in proceedings under Order 39 Rule 2-A of the CPC.

Thus in view of the aforesaid discussion, the impugned order dated 15.06.2023 passed by the trial Court cannot be sustained and is hereby set aside. Consequently the application under Section 151 read with Order 1 Rule 10 (2) of the CPC filed by the petitioner stands allowed.

The petition is accordingly allowed and disposed off.