Gurumurthy Reddy vs A.K.N. Nayak and Others

S.A. Hakeem, J.-The complainant has sought for action to be taken against the respondents for alleged disobedience of a decree of perpetual injunction passed in O.S. No. 6249 of 1989 on the file of the XIV City Civil Judge, Bangalore.

The specific complaint is that, on 23-9-1993, the respondents herein entered into the land, and with the help of the 1st respondent, demolished the compound wall on the eastern side. This allegation is however, denied by the other side. It is stated that, what is demolished is certain unauthorised construction put up by certain persons which was prevented by the B.D.A. Apart from that, there is no allegation, as such, regarding the alleged disobedience.

In view of the conflicting versions, the matter was referred to the Trial Court for holding a summary enquiry and to report, which has been submitted. However, in the view we propose to take, it appears to be unnecessary to go into the merits of the case. The moot question that arises for consideration is whether in view of the special provisions to deal with disobedience of a decree for injunction under Order 21, Rule 32 of the C.P.C., it is appropriate for this Court to initiate any action under the Contempt of Courts Act, 1971 (for short, the ''Act''). This question, in our opinion, is no more res integra in view of the decision of a Division Bench of this Court in Rudriah v State of Karnataka and Others, 1981(1) Kar. L.J. 33. That was a case wherein disobedience of an interim injunction was alleged and this Court was similarly called upon to take action under the Act. In that context, the Court has after referring the provisions of Order 39, Rules 1, 2 and 2-A of the C.P.C. has stated thus:

"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 is contained in the C.P.C. itself under Order 39, Rule 2-A 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 is encouraged holding that it amount 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 decree passed by a subordinate Court is not obeyed. That is not the purpose of the Contempt of Courts Act". We are in respectful agreement with this view.

In determining the question involved, the Court has relied upon the ruling of the Supreme Court in Perspective Publications (P.) Ltd. and Another v State of Maharashtra, AIR 1971 SC 221, in which it is stated thus:

"The summary jurisdiction by way of contempt must be exercised with great care and caution and only when its exercise is necessary for the proper administration of law and justice".

While the power to punish for wilful disobedience of a decree or order of any Court is undoubtedly vested in this Court under the Act, in our opinion, it is a question of expediency not to encourage the parties to invoke that jurisdiction when alternative effective remedy is provided under the law.

In that view of the matter, this complaint is dismissed reserving liberty to the complainant to seek appropriate remedy in accordance with law. Before parting with this matter, we make it clear that in considering the question whether there was any disobedience of the decree, the Executing Court shall not rely upon any of the observations in the report of the Civil Court submitted to this case, but to consider and dispose of the matter independently.