Lakshmamma @ Lakshmi and Dalappa vs G. Govindaraj

A.N. Venugopala Gowda, J.—The Respondent/Plaintiff has filed O.S. No. 520/1998 in the Court of Civil Judge (Sr. Divn.,) Bangalore Rural District, Bangalore, for the relief of declaration of his title to suit property and for perpetual injunction restraining the Petitioners/Defendants from interfering with his possession and enjoyment of suit property. The Petitioners filed written statement and have contested the suit. Plaintiff filed LA No. 1, seeking an order of temporary injunction against the Defendants, with reference to the suit property, to which the Defendants flied a counter affidavit. The trial court allowed I.A. No. 1 by an order dated 24.05.2000 and passed an order of temporary injunction with reference to the suit property in favour of the Plaintiff and against the Defendants. The said order was questioned by the Defendants in M.A. No. 27/2000 in the District Court, Bangalore Rural District, Bangalore. The said appeal was dismissed by a judgment dated 30.07.2005.

The Plaintiff filed I.A. No. 5 under Order 39 Rule 2A read with Section 151 CPC seeking detention of the Defendants in civil prison for committing breach of the order passed on LA No. 1 dated 24.05.2000. An additional affidavit in support of the said application was filed on 21.09.2005. The 2nd Defendant filed objections on 21.03.2006 to I.A. No. 5 by way of counter affidavit.

After establishment of Civil Judge (Sr. Divn.,) Court at Devanahalli, the suit was transferred and was renumbered as O.S. No. 63/2006 on the file of Court of Civil Judge (Sr. Divn.,) at Devanahalli. Enquiry having been conducted with regard to the disobedience of order of temporary injunction as alleged in I.A. No. 5, the Plaintiff deposed as PW-1 and Ex.P-1 to Ex.P-13 were marked. For the Defendants, DW-1 to DW-5 deposed and Ex.D-1 to Ex.D-6 were marked. Upon consideration of the rival contentions and the record, finding merit in I.A. No. 5, the trial court allowed the same by its order dated 16.12.2009 and punished the 1st Defendant with fine of Rs. 10,000/- and in default, her other properties to be attached for recovery of fine amount and further punished the 2nd Defendant with a detention for two months in civil prison and a fine of Rs. .10,000/- and in default, his other properties to be attached for recovery of said fine amount. The said order was questioned by the Defendants by filing appeal in M.A. No. 4/2010 on the file of District Court, Bangalore Rural District, Bangalore. the said appeal having been found to be devoid of merit, was dismissed by an order dated 03.02.2010. However, the order with regard to sending the Defendants to civil prison was modified and the Defendants were ordered to be sent to civil prison for 30 days. Aggrieved, the Defendants have filed these writ petitions.

Sri S.K. Venkata Reddy, learned Counsel appearing for the Petitioners, firstly contended that, the impugned orders are opposed to facts on record and the law. Secondly, there being no evidence with regard to purposeful disobedience or breach of injunction by the Defendants, the impugned orders are irrational and illegal. Thirdly, the order passed on I.A. No. 1 dated 24.05.2000 being only an interim order pending disposal of the suit, after full fledged trial in the suit, if the trial court comes to the conclusion that, the Plaintiff has not been in possession of the property, then the suit is to be dismissed with reference to prayer for perpetual injunction and in such an event, the order passed on LA No. 1 will have no currency and if the impugned orders are to be implemented, the Petitioners have to suffer civil prison and there cannot be any restitution and cannot be compensated by any means, much less by monetary compensation.

Sri Amaresh A. Angadi, learned Counsel appearing for the Respondent, by taking me through the impugned orders and placing reliance on catena of decisions contended that, the impugned orders in the facts and circumstances of the case are justified.

Though the learned Counsel made submissions, briefly noticed supra, in my view, it is unnecessary to answer the rival contentions, since appellate court, which is a court of both fact and law, has not re-appreciated the evidence. The appeal is a valuable right and unless restricted by law, the whole case is open for re-hearing both on questions of fact and law. It is the duty of the Court to deal with all the aspects and record findings supported by reasons. In view of the deficiency in the order passed by the appellate court, it is just and proper that, the appellate court re-considers the matter.

The order passed by the trial court on I.A. No. 1 was questioned unsuccessfully and has attained finality. The order of temporary injunction passed by the trial court in favour of the Plaintiff and against the Defendants is in force from 24.05.2000. I.A. No. 5 under Order 39 Rule 2-A CPC is maintainable, if there is disobedience of the order passed on I.A. No. 1 or the breach of terms on which temporary injunction was granted or the order was made. The trial court has found merit in I.A. No. 5 and has allowed the same.

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 against 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 should exercise the power with great caution and responsibility.

The appellate court while considering the third ground, by making reference to the decision of the Apex Court in the case of Samee Khan v. Bindu Khan has held, detention and attachment both cannot be done at a stretch and one of them should be adopted. Having arrived at such a conclusion and having made enquiries with the learned Counsel for the Defendants as to the possession or otherwise of property by the Defendants and despite having been told that the 2nd Defendant possesses property measuring 26 guntas and even after holding that the sentence imposed by the trial court is not in accordance with law, without ordering attachment of the property, has directed the Defendants to undergo civil imprisonment for 30 days. There is no proper application of mind and consideration of the matter by the appellate court, which has not kept in view of the fact that, power under Rule 2-A of Order 39 should be exercised with great caution and responsibility. The order passed by the appellate court suffer? from deficiencies, briefly stated supra. Since the appellate court can re-appreciate the record, in my opinion, it is in the interest of justice that, the matter be remanded to the appellate court for consideration afresh.

The impugned order was kept in abeyance by this Court on 31.03.2010 and the stay order has been in force till date. By an order dated 16.11.2010, the Petitioners were directed to deposit Rs. 50,000/- in the Registry. The Petitioners have deposited the said sum and have filed the memo dated 19.11.2010. The Registry to transfer the said amount to the trial court for being regulated in terms of the order that may be passed in the appeal by the District Court.

In the result, the writ petitions are allowed in part.

The order dated 03.02.2010 passed in M.A. No. 4/2010 by the learned Prl. District & Sessions Judge, Bangalore Rural District, Bangalore, is hereby set-aside.

The court below to take on board M.A. No. 4/2010 and decide the same keeping in view the observations made supra and in accordance with law, with utmost expedition.

The appellate court is requested to decide the appeal within a period of two months from the date of first appearance of the parties.

The parties are directed to appear before the court below on 06.12.2010 and receive further orders.

Contentions of both parties are kept open for consideration.

No costs.