Prabhat Kumar and Others vs Anil Kumar and Others

N.K. Mody, J.

This order shall also govern the disposal of MA No. 224/ 2002 as both the appeals are arising against the order dated 22.1.2002 passed by Additional District Judge, Bhanpura District Mandsaur in MJC NO. 21/2000, whereby the application filed by the respondent No. 1 under order 39 Rule-2-A read with Section 151 CPC has been allowed and the appellants in both the appeals are directed for imprisonment for a period of three months, on account of breach of order dated 10-11-1998 passed in Civil Suit No. 11-A/98 in addition to attachment of the suit property.

Short facts of the case are that appellants are members of Undivided Joint Hindu family, Respondent No. 1 filed the suit for partition, possession and mesne profit, which was numbered as Civil Suit No. 11-A/98 in the court of Additional District Judge, Bhanpura, District Mandsaur. In that Civil Suit respondent No. 1 also moved applications under Order 39 Rule 1 and 2 read with Section 151 and also under order 40 Rule 1 CPC wherein various prayer were made to protect the property. The applications filed by respondent No. 1 were disposed of vide order dated 10-11-1998, whereby the application for appointment of Receiver was dismissed and the appellants herein were directed not to alienate the suit property. It was also directed that the appellants should furnish the security for a sum of Rs. 5 lacs and an undertaking to the effect that the appellants shall comply with the judgment and decree which shall be passed by the learned court below, ultimately, It was also directed that appellant shall keep the accounts and shall submit the copy of the balance sheet of profit and loss in the Court and if the accounts are being audited then the audited balance sheet be submitted. Since, the order passed by the learned court below dated 10-11-1998 was not complied with, therefore respondent No. 1 moved an application under Order 39 Rule 2-A CPC for breach of the order which was numbered as MJC 21/2000. This petition was opposed by the appellant. After the trial, by the impugned order the appellants were punished. Being aggrieved, the present appeal has been filed.

Shri B.L. Pavecha, learned senior counsel for the appellants submit that the application filed under Order 39 Rule 2-A CPC itself was not maintainable as the application for breach of the order can be filed against the order of injunction passed under Order 39 Rule 1 and 2 CPC. It is submitted that since no order has been passed under Order 39 Rule 1 and 2 CPC, therefore, no application for breach of the order is maintainable. For this contention the reliance has been made on a decision of Calcutta High Court reported in Vol. XVII Indian Cases, 361 in the matter of Sito Mahton Vs. F.F. Christien, wherein Division Bench of Calcutta High Court has held that.

the order appealed against did not grant a temporary injunction nor did it stay and prevent the wasting of the property, that it was not an order contemplated by Rule 1 of Order XXXIX and that, therefore, it was not appealable under clauses (r) of Rule 1 of Order XLIII.

Learned counsel for the appellants further submit that at the most, it can be said that the order was passed under Clause-(e) of Section 94 of the CPC, therefore, the petition filed by the respondent No. 1 before the court below under order 39 Rule2-A CPC itself was not maintainable and hence deserves to be dismissed.

Learned counsel for the appellants further submit that even if it is assumed that the impugned order was passed under Order 39 Rule 1 and 2 CPC and the application filed under Order 39 Rule 2-A CPC was maintainable, then too the impugned order deserves to be set aside on the ground that the appellants are the near relatives of the respondent No. 1 as all of them are members of one family. It also deserves to be set-aside on the ground that the impugned order was complied with as all the accounts were submitted by the appellants before the learned court below. Learned counsel submits that at the most it can be said that it was a case of delayed compliance and not the case of non-compliance.

For taking a lenient view the learned counsel for the appellants placed reliance on a decision reported in Samee Khan Vs. Bindu Khan, Wherein the High Court in a case where the order to maintain status-quo in respect of suit property was passed held that since obstruction subsequently removed and unconditional apology tendered by defendant before the court, held it was not necessary to put the defendant in civil prison.

Further reliance was placed on a decision reported in K.V. Shivakumar Vs. Kanak Raj Mehta and Another, , wherein the Supreme Court in a case where jail sentence was ordered on account of failure to pay the amount ordered upon tendering unconditional apology by undertaking to pay the entire amount due to Government in installments, accepting the apology jail sentence set-aside by the Apex Court on condition that if he fails to abide by his undertaking even in regard to the monthly instalment he would be liable to serve that remaining period of sentence as per the impugned order.

Learned counsel further placed reliance on a decision reported in Kapildeo Prasad Sah and Others Vs. State of Bihar and Others, , wherein the Apex Court has observed that "respondents to have committed contempt, civil contempt at that, it has to be shown that there has been willful disobedience of the judgment or order of the court. Power to punish for contempt is to be resorted to when there is clear violation of the court''s order. Since notice of contempt and punishment for contempt is of far reaching consequence, these powers should be invoked only when a clear case of willful disobedience of the court''s order has been made out. It was further submitted that in the similarly circumstances this High Court has laid down the law in the matter of Hari Singh Vs. Kedar Singh reported in 1981 JLJ 310, wherein it was held that, "Purpose of Rule-2-A of Order 39 is not to punish a person who disobeys injunction order, but to enforce the order.

Shri V.P. Saraf, learned counsel for respondent No. 1 submits that the order dated 10-11-1998 was passed under Order 39 Rule 1 and 2 CPC. It was further submitted that it is wrong to say that the application filed by the respondent No. 1 for grant of temporary injunction was dismisses. It is only the application for appointment of Receiver was dismissed and so far as application for grant of temporary injunction is concerned, the same was allowed with certain directions. It is further submitted that for passing an order under Order 39 Rule 1 and 2 CPC, it is not necessary for the court to pass an injunction order but for preventing or wasting of the property the court can pass any order and if that order is passed then responded No. 1 was within his rights to move to the court under Rule 2-A of Order 39 CPC and same is rightly been allowed by the court below. Learned counsel for respondent No. 1 further submits that only because of the fact that the application was filed by respondent No. 1 accounts has been submitted by the appellants and till then no compliance was made by the appellants.

Learned counsel for the respondent No. 1. placed reliance on a decision reported in Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal, , wherein it was held that, "In circumstances not covered by Order 39 or by any rules made under the code, the courts have inherent jurisdiction to issue temporary injunction in circumstances which are not covered by the provisions of Order 39 CPC, if the court is or opining that the interest of justice require the issue of such interim injunction.

For the purpose of convenience Order 39 Rule 1 and 2 CPC is reproduced herein below :

Cases in which temporary injunction may be granted :-

Where in any suit it is proved by affidavit or otherwise :

(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree or

(b) that the defendant threatens, or intends, to remove of dispose of his property with a view to (defrauding) his creditors.

(c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the Court may be order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property (or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit) as the court thinks fit, until the disposal of the suit or until further orders.

Injunction to restrain repetition or continuance of breach:

(1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any breach of contract or injury of a like kind arising out of the same contract of relating to the same property or right.

(2) The court may by order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise, as the court thinks fit.

From perusal of Order 39 Rule 1 and 2 CPC it is evident that court may pass order under 39 Rule 1 and 2 CPC for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property. So far as the decision of Calcutta High Court in the case of Sito Mahton supra is concerned, the case is quite distinguishable as in that case the court below neither granted temporary injunction nor did it stay and prevent the wasting of the property.

Since the learned court below by the impugned order has restrained the appellants from alienating the property and has further directed to maintain the accounts and to submit copy of profit and loss balance sheet, therefore, it cannot be said that no order was passed under Order 39 Rule 1 and 2 CPC.

Coming to the second contention raised by learned counsel for the appellants, since it was a family matter and the accounts has already been submitted by the appellants, therefore, it is not a case of non-compliance. At the most it is a case of delayed compliance. In the circumstances, it is a fit case in which the imprisonment is not the proper remedy. In the order dated 10-11-1998 also it was not the direction of the court to submit the accounts in any particular time. The direction was to maintain the accounts and to submit the copy of the account on yearly basis. In view of this the impugned order dated 22-1-2002 passed by Additional District Judge, Bhanpura, District Mandsaur in MJC No. 21/2000 is set-aside subject to depositing a sum of Rs. 10,000/- by the appellants of MA No. 150/2002 (two thousand five hundred each) and Rs. 20,000/- by the appellants of MA No. 224/2002 (five thousand each), as the appellants of this case are having a lucrative business, within a period of two months, failing which the impugned order shall come in force. In case, amount is deposited then the respondent No. 1 shall be at liberty to withdraw the amount after furnishing an undertaking to deposit the requisite court fee within three days with the State Government, which was payable on the suit filed by Respondent No. 1.

With the aforesaid observations, both the appeals stands disposed of.