Ram Murat and Another vs State of U.P. and Others

Amitava Lala, J.—This writ petition has been filed with a prayer to issue mandamus commanding the Respondent Nos. 1 to 4 to take action and to maintain law and order in accordance with law in compliance of the judicial orders passed by Civil Court from time to time and to restore possession of the Petitioner over the land in question by demolishing construction raised by Respondent Nos. 5 to 8 and his associates.

The admitted position is that there is a civil suit pending before the appropriate Civil Court for injunction, wherein the Petitioners have obtained an order of injunction. It is also an admitted fact that they have filed an application under Order XXXIX, Rule 2A of the CPC for disobedience or the breach of the order of injunction. Having all sorts of remedies available to them and in spite of filing civil suit as well as application for injunction, the writ petition has been filed before this Court to obtain similar order as would be passed by Civil Court.

Learned Counsel appearing for the Petitioners has relied upon two orders passed by two Division Benches of this Court in Writ C. No. 3551 of 2010 (Savitri Devi v. State of U.P. and Ors.) decided on 10.2.2010 and a consequential order dated 19.2.2010. Such writ petition is pending and the Court had directed the concerned Deputy Superintendent of Police to ensure that the injunction order, which has been passed by the Civil Court, be complied with.

According to us, the CPC is a complete Code to the extent to deal with the matters under Order XXXIX, Rule 2-A of the Code of Civil Procedure. One plea has been taken by the Petitioners that the alleged defaulters are not receiving any notice. In such cases provision of further order of advertisement and to pass appropriate order by the Civil Court is not restricted. Even in such case if any violation of the order is there, the Civil Court has liberty to proceed for contempt and the High Court, for the purpose of apprising the same, may pass appropriate order. Remedy of Article 226 is not permit- , ted to interfere with the jurisdiction of the Civil Court when the suit and interim application are pending there for orders.

Learned Counsel for the Petitioner has relied upon two judgments, one of the Supreme Court in Samee Khan v. Bindu Khan and Anr. 1998 (89) RD 716 (SC) of Full Bench of the Madras High Court reported in Century Flour Mills Ltd. Vs. S. Suppiah and Others, However, we find that both the matters are not arising out of any writ jurisdiction but arising out of civil suit and have reached upto the High Court and the Supreme Court.

In Samee Khan (supra) the Supreme Court has held that; "it is open to the Court to attach property of disobeying party and at the same time the Court can order him to be detained in civil prison also if the Court deems it necessary. Similarly the Court which orders the person to be detained in civil prison can also attach the property of that person. Both steps can be resorted to or of them alone need be chosen. It is left to the Court to decide on consideration of the fact situation in each case."

Similarly, in the Full Bench judgment of Madras High Court'' in Century Flour Mills Ltd. (supra) it has been held that "the power of the Court u/s 151 of the CPC are wide and are not subject to any limitation. Where in violation of a stay order or injunction against a party, something has been done in disobedience, it will be the duty of the Court as a policy to set the wrong right and not allow the perpetuation of the wrong doing. The inherent power will not only be available in such a case, but it is bound to be exercised in that manner in the interest of justice. Even apart from Section 151, we should observe that as a matter of judicial policy, the Court should guard against itself being stultified in circumstances like this by holding that it is powerless to undo a wrong done in disobedience of the Court''s orders."

But in this case it is not necessary to go to that extent as the Court has held that the power is available u/s 151 of the Code of Civil Procedure. Moreover, it has already been held by the Supreme Court that it should be left to the Court to decide on consideration of the fact situation in every case and the Full Bench of Madras High Court has also held that Court is not powerless u/s 151 of the Code of Civil Procedure, which clearly indicates about the power of the Civil Court. Nowhere it has been held that in writ jurisdiction such disobedience will be interfered with by the Court and perpetuate the litigation unnecessarily without leaving it open to the litigating parties to come to an appropriate finding. This type of observation, if any, even at an interim stage is uncalled for. However, we are totally guided to say that CPC is a comprehensive Code to protect the interest of any party against the party disobeying to carry out the orders passed by the Civil Court.

Having so, we do not find any reason to interfere with the matter at all. Therefore, the writ petition is dismissed without imposing any cost.

In any event, passing of this order will in no way affect the right of the Petitioner to proceed in accordance with law. It is expected that if the Petitioner proceeds in accordance with law, the matter will be expedited.

Ashok Arivastava, J.- I agree.