Dudhanath Prasad (Shaw) vs Krishna Kishore Mukhopadhyat

Mookerjee, J.—The Plaintiffs Respondents had filed a suit, asking for certain reliefs against the Defendant including a prayer for permanent injunction restraining the Defendant from proceeding with certain constructions on the property in suit.

The prayer for the issue of a temporary injunction as made before the trial court was refused. An appeal was filed by the Plaintiffs on January 31, 1947, before the Court of the District Judge, Alipore. On that day, the appeal was admitted and an order was obtained by the Plaintiffs from the learned District Judge which was in the following terms:

Appellant puts in a petition supported by an affidavit praying for issuing an ad interim injunction restraining the Respondent from making any further construction on the land pending the disposal of the appeal. Heard Pleader.

Issue Rule fixing February 22, 1947, for hearing. Issue also an ad interim injunction as prayed for. Requisites to be filed at once.

Immediately after the order had been passed another petition was filed by the Plaintiffs praying for the service of the order of temporary injunction by a process-server of that court. This prayer also was allowed. It is alleged on behalf of the Plaintiffs that the notice was taken to Naihati the same afternoon and was served the same evening at about 5-30 p.m. The next day, the Plaintiffs put in another petition supported by an affidavit before the same learned District Judge, alleging that the Defendant had violated the terms of the ad interim injunction issued the previous day and that proceedings in contempt might be started. The Defendant was, accordingly, ordered to show cause. A pleader commissioner was, thereafter, appointed on February 5, 1947, for holding a local inspection and submitting a report as to whether construction work was still going on. A report was submitted subsequently. The Defendant entered appearance on February 22, 1947, to show cause in the contempt matter. The appeal had also by that time become ready. The Rule which had been issued as to why there should not be ad interim, injunction restraining the Defendant from making any further construction as also the Rule for contempt were directed to be put up for being heard together on March 5, 1947. On this latter date, the learned District Judge transferred all the cases to the court of the Additional Judge, Third Court, for disposal. The appeal and the Rule relating to the ad interim injunction were taken up for hearing immediately thereafter by the Additional District Judge. The appeal was allowed and the Defendant was restrained during the pendency of the suit in the lower court from making any further construction on the suit land. The proceedings in connection with the contempt of court matter were directed to be put up separately. The hearing of the contempt proceedings began before the Additional District Judge and by an order, dated September 9, 1947, the Defendant was found guilty of breaches of the injunction order and was directed to be detained in civil prison for three months on the Plaintiffs putting in all requisites. It is against this order in the proceedings for contempt that the present appeal is directed.

On behalf of the Defendant it is contended, in the first place, that the Additional District Judge had no jurisdiction to pass any order in the proceedings for contempt.

The prayer which had been made for the issue of a restraint order pending the hearing of the suit was an application under Rule 2 of Order XXXIX of the Code of Civil Procedure. The court is entitled to issue a temporary injunction pending the disposal of the suit. Sub-rule (3) of Rule 2 of Order XXXIX of the CPC is in the following terms:

In case of disobedience, or of breach of any such terms, the court granting an injunction 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 six months, unless in the meantime the court directs his release.

In the case of disobedience by a party of a temporary restraint order, it is "the court granting an injunction" that can either attach the property belonging to such person guilty of such disobedience or to detain him in the civil prison. Sub-rule (3) doubtless refers to an order issued under Rule 2 of Order XXXIX. In Sheikh Jaharuddi v. Hari Charan Podder (1913) 18 C.W.N. 470, a Division Bench of this Court held that, in case of breach or disobedience of a temporary injunction, it is only the court which actually grants the injunction that may punish the contempt. In that case, an order for injunction had been issued by a munsif before whom the case was pending. The proceedings including the suit were transferred to the file of the District Judge after the issue of the injunction order. The jurisdiction of the District Judge to punish for breach of the temporary injunction was questioned. and such objection was upheld by this Court. Similar views. have recently been expressed by McNair J. in Dagunath Saha Roy v. Biswambar Saha Roy (1935) 61 C.L.J. 543. Mr. Mukherjee appearing in support of the order by the lower court; contends, in the first place, that the court of the District Judge and that of the Additional District Judge are not two separate and distinct courts. Both of them exercise concurrent jurisdiction. If, therefore, the District Judge transferred a particular case from his own file to that of the Additional Court, it did not mean any change of the court itself, but only of the person who was in charge of different sections of the same court. Secondly, that, although there is a provision in Sub-rule (3) of Rule 2 of Order XXXIX of the Code of Civil Procedure, the procedure to be followed for breaches of injunction is not limited to the one mentioned in that sub-rule.

The first objection may be shortly disposed of. u/s 3 of the Bengal and Assam Civil Courts Act, XII of 1887, there are--

the following classes of civil courts--

(1) the court of the District Judge;

(2) the court of the Additional Judge;

(3) the court of the Subordinate Judge; and

(4) the court of the Munsif.

There is no room for argument that the court of the District Judge is not a different class of civil court from that of the Additional Judge. The powers of the District Judge are certainly much wider than those which are vested in the Additional District Judge. It is not possible to urge that the courts of the District Judge and of the Additional District Judge must be deemed to be the same court for the purpose of interpreting Sub-rule (3) of Rule 2 of Order XXXIX of the Code of Civil Procedure.

It is not necessary for me, on the facts of the present case, to consider what would be the effect if, after the issue of an order of injunction, the local jurisdiction of that court is transferred from that court to that of another. The facts in the present case are altogether different and there is no question of the territorial jurisdiction of one court being transferred to that of another.

With regard to the next branch of the argument raised by Mr. Mukherjee, an attempt was made to apply, on the facts of this case, the provisions contained, in Section 36 of the CPC read with Rule 32 of Order XXI of the Code. Mr. Mukherjee contended that it was competent for a court to enforce an order for injunction u/s 36 of the CPC and if he be correct then Rule 32 of Order XXI provides for the forum where such orders can be enforced wherein there is no such restriction as in Order XXXIX, Order 2(3) of the Code.

Reliance was placed upon two decisions--one of the Allahabad and the other of the Nagpur court.--Dulhin Janak Kunwari v. Kedar Narain Singh ILR (1941) All 295, Pannalal Base v. Seth Shreeram ILR (1945) Nag. 336. In both these cases the order for injunction had been issued, not under Rule 2 of Order XXXIX but under Rule 1. Both the courts expressed the view that Sub-rule (3) of Rule 2 of Order XXXIX, could not be attracted, if the order for injunction was one issued under Rule 1. It was pointed out that, if Sub-rule (3) of Rule 2 were intended by the Legislature to be applicable both in cases of orders under Rule 2 and Rule 1, Sub-rule (3) of Rule (2) would not have been included as a part of Rule 2, but would have been mentioned separately so as to attract orders either under Rule 1 or Rule 2. In these cases there was no occasion to consider whether an order passed under Rule 2 could be enforced for disobedience or breach of such an order, dealt with following a procedure other than those mentioned in Sub-rule (3). On the other hand, there are observations in the judgments of both the courts that Sub-rule (3) of Rule 2 is attracted in the case of orders passed under Rule 2.

With, reference to these two decisions, another important fact may be noticed. The difference between the law applicable to cases in Bengal and those under the Allahabad and Nagpur courts should not be lost sight of. To obviate any possible objection to attract the provisions contained in Sub-rule (3) of Rule 2 to orders passed under Rule 1, certain amendments had been made by the Calcutta High Court in 1933. Sub-rules (2) and (3) to Rule 1 were introduced, making it abundantly clear that the procedure to be followed for breaches of orders passed under Rule 1 was to be as provided for in Sub-rules (2) and (3) as added to Rule 1. So far as the Allahabad Court is also concerned, immediately after the decision in Janak Kunwari v. Kedar Narain Singh (supra) in December, 1940, a new rule was introduced as Rule 2A immediately after Rule 2 of Order XXXIX. Sub-rules (3) and (4) in in Rule 2, as appearing in the original Code, were consequently deleted. This new Sub-rule 2A makes it clear that, in the case of disobedience to an injunction issued under Rule 1 or Rule 2 or breach of any terms of any such injunction, the court, in which the suit is proceeding, may pass orders similar to what had originally been contained in Sub-rule (3) of Rule 2 of the Code of Civil Procedure.

There is no scope for any argument relying upon these two decisions mentioned above that an interlocutory order passed under Sub-rule (2) of Rule 2 of Order XXXIX of the Code of Civil Procedure, can be dealt with under any provision other than those contained in Sub-rule (3) of Rule 2, so far as the Calcutta High Court is concerned or Rule 2A, so far as the Allahabad High Court is concerned.

It may be further pointed out that the attempt to attract the provisions contained in Section 36 of the Code, which appears under a chapter on execution or of Order XXI, Rule 32, which also appears under "Execution of Decrees and Orders" cannot be attracted for imposing penalty for breaches of orders for injunction. This contention also, therefore, fails.

It has lastly been contended that, even if it be found that the learned Additional District Judge had no jurisdiction to passman order which is now under appeal, under the provisions contained in Section 3(1) of the Contempt of Courts Act of 1926, it is competent for this Court, when the appeal is being heard, to consider whether any contempt had actually been committed or not. It is argued that the Appellant can succeed only if he has a good case on the merits. Section 3 of this Act makes no such provision as contended for. Even if it were so, on the fact, it would have been very difficult to support the case as made by the Petitioner.

It is well-settled that the procedure laid down for contempt of court is to be availed of not for the benefit of particular parties but principally for vindicating the jurisdiction of the court and also for giving effect to orders passed by the court. As I have already stated, the order for injunction was issued on January 31, 1947. Notice of this order was purported to have been served the same afternoon and an application was filed very next morning alleging acts in violation of the order for injunction. The evidence, as led before the court below, gives no indication of any act done by the Defendant after the issue of the notices even if such notices are proved to have been served on January 31, 1947 and before the application was moved before the Additional District Judge the next day. It is now also well-settled that for attracting the provisions contained for commitment of contempt of Court, service of notice has to be clearly and unequivocally proved. The foundation of the charge depends on the proof of such service--on proof that the party has knowledge of the order passed by the court. The importance of giving full opportunity to the parties for proving or disproving the service of notice on which the contempt action is based was emphasised by this Court in Basanta Kumar Das v. Nagendra Nath Pal (1932) 137 Ind. Cas. 425.

In view of the decision reached by me that the Additional District Judge had no jurisdiction, it is not necessary to pursue this matter further. But even if it were necessary to go into the question of actual commitment of acts amounting to contempt of court, the whole matter would have required fuller enquiry and a clearer finding on the adequate evidence in the case.

This appeal is, accordingly, allowed with costs in this Court and in the court below. The orders complained of dated September 9 and September 16, 1947, by the Additional District Judge are set aside.