The learned Senior Counsel would submit that after bringing the legal representatives on record, it incumbent on the part of the respondents again to obtain a fresh order of status quo against the legal representatives so as to bind them and till no such order was obtained against the appellants, the appellants cannot be found fault with. Thus, the learned Single Judge has committed an error of law.
33. But, this contention cannot be accepted for the reason that though status quo order was granted against the father, yet the sons cannot be allowed to flout the status quo order which was granted against their father after they were brought on record as legal representatives. It is not the case of the appellants that they have parted with the property by executing sale deed prior to their bringing on record as legal representatives, but it is only after they were brought on record, they have parted with the property. Thus, it is clearly established that the appellants having full knowledge of the status quo order which was passed against their father, executed the sale deeds on the premise that the status quo orders would not in any way bind them. But, this contention has no legs to stand inasmuch as the status-quo order passed against Sharfuddin is required to be respected by the legal representatives who succeeded to the property in question. It is not a case of third party alleging that he is not bound by the injunction order passed against the defendants. But the appellants are none else than the legal representatives and they have the full knowledge of the status quo order passed against their father. Therefore, a person knowing fully well that an injunction order was passed against the defendant and still violates the injunction order irrespective of the fact whether he is a party to the injunction or not and commits violation of the order, is required to face the consequences under Rule 2-A of Order 39. Thus, we are not in a position to agree with the contention raised by the learned Counsel for the appellants that the appellants have not committed any contempt of the orders of the lower Court.
IN THE HIGH COURT OF ANDHRA PRADESH AT HYDERABAD
LPA No. 94 of 1998
Decided On: 19.02.2003
Mohd. Sharfuddin (died) by LRs.
Vs.
Mohd. Jamal and Ors.
Vs.
Mohd. Jamal and Ors.
Hon'ble Judges/Coram:
G. Bikshapathy and R. Subhash Reddy, JJ.
G. Bikshapathy and R. Subhash Reddy, JJ.
Citation: 2003(3) Civil court cases695 AP
1. An important question that arises for consideration in this appeal is the binding nature of the temporary injunction Order granted by the lower Court on the LRs. of the party, who suffered the Order as also the interpretation of Order 39 Rule 2(A) of Code of Civil Procedure.
2. The LPA arises against the Orders passed by the learned Single Judge in C.C. No. 1412 of 1987 in A.S. No.2301 of 1987 dated 3.4.1998.
3. Before going into the contentions raised in the LPA, it is necessary to refer to the factual matrix which lead to the filing of the appeal. Plaintiffs filed suit in O.S. No. 11 of 1981 before the learned Additional District Judge, Sangareddy for partition of the three schedule properties namely Plaint 'A', 'B' and 'C' properties. One Mr. Sharfuddin was Defendant No.1 in the said suit. It is the contention of the Defendant No.1 Sharfuddin that 'B' schedule property is his self acquired property. Except claiming the interest in 'B' schedule property, he did not contest the matter. After the trial, the suit was dismissed in respect of the 'B' schedule property holding they were self-acquired properties of Sharfuddin. 'B' schedule properly consists of agricultural lands in S.No. 205/1 and 206/1 having an total extent of Ac.20-31 gts.
4. Against the said judgment and decree passed by the lower Court insofar as it relates to the dismissal of the suit as far as 'B' schedule property was concerned, the Plaintiff filed an appeal in A.S. No. 2370 of 1987. However, the appeal was dismissed by the learned Single Judge on 27.8.1998. Against the said judgment and decree the matter was carried further in L.P.A. No. 282 of 1998 and the same was also dismissed on 21.6.2001. Thus, the judgment of the Trial Court became final. However, the present proceedings arises out of the interlocutory Orders passed by the appellate Court during the pendency of the appeal in A.S. No. 2301 of 1987.
5. The Appellants in A.S. No. 2301 of 1987 filed an application in C.M.P. No. 13578 of 1999 for injunction restraining Sharfuddin, Defendant No. 1 in the suit from alienating the 'B' schedule property. However, the Court granted Orders of status quo and the status quo Orders were made absolute on 15.10.1987. The Appellants filed C.M.P. No. 16874 of 1987 in the appeal against Sharfuddin under Section 94 and Order 39, Rule 2-A Code of Civil Procedure to detain him in civil prison, since he had alienated the 'B' schedule property and making constructions on the land during the subsistence of status quo Orders. In the said petition, Sharfuddin filed a counter-stating that he gifted the property to his sons in 1981 and his sons were making constructions and therefore, the Court passed an Order finding that there was no violation of the injunction Orders and further Directed that Sharfuddin should not make any further constructions. However, Sharfuddin died on 22.10.1991 and his sons were added L.Rs. as respondents No. 3 to 6 in A.S. No. 2301 of 1987. After the L.Rs. were brought on record, they filed CMP Nos. 15501 and 15511 of 1997 under Order 39 Rules 1 and 2 of Civil Procedure Code to grant interirm injunction restraining the Sub-Inspector of Police and the Appellants from interfering with the possession and enjoyment of the 'B' schedule property. After the matter was contested, Court held that the L.Rs. of Sharfuddin were in possession and enjoyment and therefore, granted the injunction Order and the same was in force.
6. While so, C.C. No. 1412 of 1997 was filed by the Appellants alleging contempt of the Orders dated: 15.5.1997 on the ground that on 11.4.1997 the respondent No. 6 and on 30.5.1997, the respondent No. 7 alienated 'B' schedule property by executing registered sale deeds. It is the contention of the petitioners that they were also bound by the status quo Orders passed by the Court against their father Sharfuddin. The petition was contested by the respondents on the ground that they are the LRs. of Sharfuddin that the property in question was already gifted to them by their father in 1981 and they sold the same to third parties in 1997. However, this Court observed that no contempt case would lie under Sections 10 and 12 of the Contempt of Courts Act and left it open to the petitioners to convert the contempt application to that of application under Order 39 Rule 2-A of Code of Civil Procedure. Thereafter, petition in C.M.P. No. 19697 of 1997 purported to be under Order 39 Rules 1 and 2, Code of Civil Procedure filed for punishing the respondents for alienating the scheduled properties and to detain them in civil prison for disobeying the Orders of the Appellate Court dated 15.10.1987 in C.M.P. No. 15518 of 1987 and C.M.P. No. 13575 of 1987 in A.S. No. 2301 of 1987. It was resisted by the L.Rs. stating that the property was gifted to them in January, 1981 prior to the suit was instituted and that the Order passed against their father is not binding and that there is no injunction Orders against them subsequent to their bringing on record as L.Rs. The learned Single Judge after hearing the parties held that the respondents disobeyed the Orders and accordingly, directed the issuance of warrant for attachment of the property of the respondent Nos.3 to 7 for a period of six months or until such time the respondents deposit the sum of Rs.20,000/-. It is further directed that the petitioners were permitted to withdraw the same. Against the said Order, the present L.P.A. has been filed.
7. While admitting the L.P.A., the Order the learned Single Judge was suspended subject to the condition that the Appellants deposit Rs. 20,000/- in the Court. Accordingly, the amount was deposited. Thus, the present appeal arises against the said Order passed by the learned Single Judge dated: 3.4.1998.
8. The issue that arises for consideration is whether the injunction order granted against the late Sharfuddin survives and makes the L.Rs. binding thereby making the L.Rs. liable for violation of the order passed by the lower Court and whether the compensation awarded under Order 39, Rule 2-A(2) is in accordance with the provisions contained in Order 39, Rule 2-A ?
9. For proper appreciation of the case, it is necessary to refer to Order 39, Rule 2-A, which reads thus:
"Consequence of disobedience or breach of injunction :--(1) In the case of disobedience of any injunction granted or other order made under Rule 1 or Rule 2 or breach of any of the terms on which the injunction was granted or the order made, the Court granting the injunction or making the order, or any Court to which the suit or proceeding is transferred, 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 three months, unless in the meantime the Court directs his release.
(2) No attachment made under this rule shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues, the property attached may be sold and out of the proceeds, the Court may award such compensation as it thinks fit to the injured party and shall pay the balance, if any, to the party entitled thereto."
10. The learned Senior Counsel Mr. Challa Seetharamaiah appearing for the appellants submits that the remedy of injunction is a remedy in persona and not in rem. Therefore, as long as there was no injunction against the appellants, the question of subjecting them to suffer consequences of disobedience of injunction Order would not arise. He relies on the decision of the Gauhati High Court in Sudhir Namasudra v. Purnendu Kumar Das and others MANU/GH/0001/1980, wherein it has been stated that "there cannot be any violation of the order of injunction by a person unless he is pointedly injuncted not to do or to do certain tilings by a Court of Law."
11. It is also not in dispute that even though ultimately the 'B' Schedule property was held to be the property of Sharfuddin, but yet when once a person violates the interim orders of the Court irrespective of their result in the main proceedings, he is liable for contempt. (See Tayabbai M. Bagasarwatta v. Hind Rubber Industries (P) Limited, MANU/SC/0280/1997 : [1997]2SCR152 ).
12. In the said decision, the Supreme Court followed the decision of Hadkinson v. Hadkinson (1952) 2 All ER 567, and the Supreme Court held thus:
"In the instant case the Plaintiff asked the temporary injunction. An ad interim injunction was granted. Then the Defendants came forward objecting to the grant of injunction and also raising an objection to the jurisdiction of the Court, The Court overruled the objection as to jurisdiction and made the interim injunction absolute. The Defendants filed an appeal against the decision on the question of jurisdiction. While that appeal was pending, several other interim Orders were passed both by the Civil Court as well as by the High Court. Ultimately, no doubt, High Court has found that the Civil Court had no jurisdiction to entertain the suit but all this took about six years. In such circumstances holding that by virtue of the said decision of the High Court (on the question of jurisdiction) no one can be punished thereafter for disobedience or violation of the interim Orders committed prior to the said decision of the High Court, would indeed be subversive of rule of law and would seriously erode the dignity and the authority of the Courts. This is not even a case where a suit was filed in wrong Court knowingly or only with a view to snatch an interim Order. The suit was filed in the Civil Court bona fide. In such a case the Defendants cannot escape the consequences of their disobedience and violation of the interim injunction committed by them prior to the High Court's decision on the question of jurisdiction.
The correct principle, therefore, is the one recognised and reiterated in Section 9-A to witness, where an objection to jurisdiction of a Civil Court is raised to entertain a suit and to pass any interim Orders therein, the Court should decide the question of jurisdiction in the first instance but that does not mean that pending the decision on the question of jurisdiction, the Court has no jurisdiction to pass interim Orders as may be called for in the facts and circumstances of the case. A mere objection to jurisdiction does not instantly disable the Court from passing any interim Order. It can yet, pass appropriate Orders. At the same time, it should also decide the question of jurisdiction at the earliest possible time. The interim Order so passed are Orders within jurisdiction when passed and effective till the Court decides that it has no jurisdiction to entertain the suit. These interim Orders undoubtedly come to an end with the decision that this Court had no jurisdiction. It is open to the Court to modify these Orders while holding that it has no jurisdiction to try the suit. Indeed, in certain situations, it would be its duty to modify such Orders or make appropriate directions. For example, take a case, where a party has been dispossessed from the suit property by appointing a receiver or otherwise; in such a case, the Court should, while holding that it has no jurisdiction to entertain the suit, must put back the party in the position he was on the date of suit. But, this power or obligation has nothing to do with the proposition that while in force, these Orders have to be obeyed and their violation can be punished even after the question of jurisdiction is decided against the Plaintiff provided the violation is committed before the decision of the Court on the question of jurisdiction."
13. The Supreme Court also extracted the decision of English Court in para 23 thus:
In Hadkinson v. Hadkinson the Court of Appeal held:
"IT is the plain and unqualified obligation of every person against, or in respect of whom an order is made by a Court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void. Lord Cottenham, L.C., said in Chuck v. Cremer 'A party, who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it. It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null or valid whether it was regular or irregular. That they should come to the Court and not take upon themselves to determine such a question. That the course of a party knowing of an order, which was null or irregular, and who might be affected by it, was plain. He should apply to the Court that it might be discharged. As long as it existed it must not be disobeyed.'
Such being the nature of this obligation, two consequences will, in general follow from its breach. The first is that anyone who disobeys an order of the Court (and I am not now considering disobedience of orders relating merely to matters of procedure) is in contempt and may be punished by committal or attachment or otherwise. The second is that no application to the Court by such a person will be entertained until he has purged himself of his contempt."
14. He would further submit that ordinary rule is that injunction cannot be disobeyed by a person named in the order. But, other persons cannot be proceeded against in contempt for disobeying the injunction. A Division Bench of this Court in 72. Narapa Reddy v. Jagarlamudi Chandramouli and others, MANU/AP/0064/1967 : AIR1967AP219 , held that "the Court has no doubt jurisdiction to commit for contempt a person not included in an injunction and/or not a party to the action, who knowing of the injunction, aids and abets the defendant in committing a breach of it. Therefore, learned Counsel would submit that the appellants never aided nor abetted their father in committing breach of the order.
15. A somewhat similar issue came up for consideration in Rajappan v. Sankaran Sudhakaran and others, MANU/KE/0067/1997 : AIR1997Ker315 , the Kerala High Court. The question was whether the decree could be executed against the L.Rs. of the deceased judgment debtor and whether the L.Rs. can be proceeded for violation of the decree granted against the judgment debtor. The Division Bench held in this regard thus:
"Section 146 of the Code of Civil Procedure provides that any proceeding that may be taken by or against a person could be taken by or against any person claiming under him. The Supreme Court has held that Section 146 of the Code must be construed liberally. One of us had occasion to deal with the scheme of Section 146 of the Code of Civil Procedure in the Order in C.R.P. 805 of 1995. In the face of Section 146 of the Code the judgment debtor cannot contend that they are not bound to obey the decree for injunction granted against their predecessors-in-interest restraining him from tampering with the boundary of the property or from entering the property of the decree holder or from committing any acts of waste therein. To permit such a plea would be to ignore the principle of public policy embodied in Sections 11 and 146 of the Code of Civil Procedure on the one hand and Section 52 of the Transfer of Property Act on the other. The contention on behalf of the legal representatives of the judgment debtor is that the decree holder is bound to file another suit against them for the identical relief. In such a suit, can the legal representatives of the judgment debtor put forward a claim which has already been concluded by the decree against their predecessors-in-interest? Can they say that the boundary had not been properly fixed in the earlier litigation and they are entitled to show that the boundary between the properties lay elsewhere? According to us they cannot. They would be barred by res judicata from so doing since res judicata bars not only the parties to the suit but also persons who claim under the parties to the suit and are litigating under the same title. When we scrutinise the Order in C.R.P. 2543 of 1984 we find that Section 146 of the Code has not been considered therein and some of the decisions relied on therein were decisions rendered prior to the introduction of Section 146 into the Code of Civil Procedure. This aspect has also been dealt with in the Order in C.R.P.805 of 1995 reported as Chothy Theyyathan v. John Thomas (1997) 1 KER. L.T. 464. As observed by the Supreme Court, there is no justification for whittling down the scope of Section 146 of the Code and to insist that a fresh suit must be filed every time a stranger to the decree succeeds to the property of the judgment debtor in the prior litigation, who has suffered a decree.
It may be true that a decree for injunction compels personal obedience and in appropriate cases would not be enforced against the legal representatives. But, we think that the said proposition must have a qualification and that qualification is that when the injunction relates to doing something or not doing something in a property that was the subject-matter of the earlier suit and the act complained of was on the basis of ownership of an adjacent property or a right claimed in the property of the other side, then such a decree for injunction would be binding not only against the judgment debtor personally but all those who claim through or under him. This we understand is the object of Section 146 of the Code of Civil Procedure. Considering the scope of that section consistent with the principle of public policy as embodied in Section 11 of the Code of Civil Procedure and Section 52 of the Transfer of Property Act, we are of the view that the executing Court was right in holding that the decree could be executed against the legal representatives.
Then the only question is whether the judgment debtor need be arrested as ordered by the Courts below. We think that the judgment debtor must be given an opportunity to avert the Order for their arrest by compensating the Plaintiff in a reasonable manner for their act of violation. While therefore, we maintain the Order of the Court below we Order that the warrant issued by the Court below need not be enforced on condition that the judgment debtors pay into the executing Court towards compensation to the decree holder a sum of Rs.5,000/- within a period of one month from this date. If the said sum of Rs.5,000/- is deposited, the same will be disbursed to the decree holder and further proceedings in the present Execution Petition will be terminated. In case the judgment debtors do not deposit the said amount within the time stipulated, the Court below will enforce its Order and issue the necessary further directions in the present execution petition itself. It is made clear that the decree holder would be entitled to move the executing Court in case of any further violation of the decree by the judgment debtors and if such further violation is made, it will be dealt with by the executing Court very seriously and on the basis of the ratio of this Order that the decree is enforceable as against the additional judgment debtors as well. We therefore, confirm the Order of the executing Court with the modification that the judgment debtors are given an opportunity to compensate the decree holder for their violation and avert the enforcement of the present Order for their arrest and on their failure to do so directing the executing Court to proceed further and implement its Order. Under the circumstances of the case, we make no Order as to costs."
16. Learned Senior Counsel would submit that a Division Bench of this Court in R. Narapa Reddy's case while referring to the decisions reported in Seaward v. Paterson and others (1897) 1 CH, 545, and S.N. Bannerjee S. Kichwar Lime and Stone Co. Ltd. MANU/PR/0060/1938, held that "when a person is restrained by an injunction from doing a particular act, that person commits a breach of the injunction and is liable in contempt, if he, in fact, does the act and it is no answer to say that the act was not contumacious in the sense that in doing it, there was no direct intention to disobey the order. But equity acts in persona, and an injunction is a personal matter. The ordinary rule is that it can only be disobeyed in contempt by persons named in the writ. Persons who were not defendants in the suit in which injunction was granted nor were named in the order cannot be proceeded against in contempt for disobeying the injunction. But it is well settled that the Court has undoubted jurisdiction to commit for contempt a person not included in an injunction and/or not a party to the action who knowing of the injunction, aids and abets a defendant in committing a breach of it"
17. The Supreme Court in The State of Bihar v. Rani Sonabati Kumari and others MANU/SC/0002/1960, held that "the procedure laid down by Order 39, Rule 2(3) of CPC is remedial and essentially one for the enforcement or execution of an order of temporary injunction passed under Order 39, Rule 2(1) and is available against the State although the provision for detention may not apply to it". The word 'person' used in it, properly construed includes defendants against whom order of injunction is primarily issued and also the defendants' agents, servants, workmen. Disobedience of die said order when issued should necessarily attract Order 39, Rule 2(3) of CPC.
18. A Special Bench of Patna High Court in Pratap Udai Nath v. Sara Lal and others MANU/BH/0211/1948, held that "equity acts in personam, and an injunction is a personal matter. The ordinary rule is that it can only be disobeyed in contempt by persons named in the writ. Persons who are not defendants in the suit in which injunction was granted nor were named in the decree cannot be proceeded against in contempt for disobeying the injunction, even if such persons claim through the person against whom the injunction was granted. When there is no principal offender, the defendant against whom the decree was passed having died, there can be no question of aiding and abetting the principal."
19. A learned Single Judge of Karnataka High Court in Shankaralingappa v. Nanje Gowda and others, MANU/KA/0094/1981 : AIR1981Kant78 , held that a judgment in a suit for injunction is not a judgment in rem and binds only the parties to the suit. Broadly, 'privies' are of three kinds viz., (i) 'privies' in blood; (ii) 'privies' in estate and (iii) 'privies' in law. The plaintiff is not a 'privy' in blood and a 'privy' in law. But, the question is whether he is a 'privy' in estate. The learned Judge observed at paras 25 and 26 as follows:
"The suit filed by Kalaiah as also the suit filed by the plaintiff are not for declaration of title or their ownership. Both the suits are simple suits for permanent injunctions. A decree for permanent injunction does not prohibit the defendant from instituting a suit for declaration of his title and for recovery of possession from the very decree holder that has obtained a decree for permanent injunction. On the very first principle stated by Sir William de Grey in Duchess of Kingston's case, as also on the legal principles that distinguish ownership and possession, it is difficult to hold that a transferee is a 'privy' in estate and the decree made against his transferor operates as res judicata against him. A decree for permanent injunction obtained by one person against another person, cannot obviously bind all other persons and ignore the factual changes that take place with regard to possession. If that is not the position, then it ignores all legal and factual changes that take place and stamps that decree as if it is a covenant running with that land. With all the anxiety of law to safeguard possession, acceptance of such a proposition, would even defeat the very safeguards provided by law and would create innumerable problems in safeguarding possession. In this view also, the Court should be loath to accept the extreme proposition that the plaintiff, the transferee is a 'privy' in estate and the decree obtained by Kalaiah against Lingamma operates as res judicata against him. From this it follows, that the decree in O.S. No. 597 of 1942-43 (Exhibit D-12) cannot operate as res judicata against the plaintiff.
An injunction does not run with the land. An injunction only acts in personam or against a person. Both these principles are firmly established legal principles (vide Somnath Honnappa Bennalkar v. Bhimrao Subrao Patil ILR(1974) Kant 1506)."
20. In Ganesh v. Narayan and others AIR 1931 Bom. 484, a Division Bench of the Bombay High Court held that "a decree for permanent injunction obtained against a father in Hindu Joint family can be executed against the son."
21. The learned Senior Counsel also refers to the passage in Text Book by Sir John George Woodroffe on law relating to Injunctions in India and extracted para 17.03 which reads thus:
"INJUNCTION IN RESPECT OF ACTS OF AN INDIVIDUAL :-Insofar as an injunction is in its nature a remedy against an individual, it will be issued only in respect of acts done by him against whom it is sought to be enforced. Thus, an injunction cannot be obtained against executors on account of acts done by their testator. They may be sued for an injunction in respect of a wrong done by themselves, but they cannot be so sued in a representative character. And for the same reason, namely, that an injunction is an order directed to a person, it does not run with the land. By reason of this same operation in personam the Court may exercise jurisdiction quite independently of the act to be done, provided the defendant be within the reach and amenable to the process of the Court."
22. As can be seen from the aforesaid decisions, injunction is a remedy 'in personam' and not in rem. But at the same time, it is also cannot be disputed that a person who aids and abets and violates the order of the Court is also liable for contempt of the Court.
23. The prime question is whether the persons who are not parties to the proceedings when the Order was passed can be made liable for the violation of the Orders of the Court. It is beyond the pale of controversy that the Order binds the parties till such time they are in subsistence and they are liable for consequences for violation of the Orders. It is also basic principle that the person who is not a party to the proceedings cannot be proceeded with against them for the violation of the Order, but yet the third party cannot be said to absolve himself of this situation in certain circumstances. This issue came up for consideration in English Court more than a century ago and it was held that the disobedience of the Order by a person who is not a party to the proceedings held to amount to contempt as it interfere with the administration of justice. In Seaward's case (supra), it was held that the Court has jurisdiction to commit for contempt, a person not a party to the action, who knowing of an injunction, aids and abets the injunction in breaching it. This principle was again reiterated in Acrow (Automation) Limited v. Rex Chambelt Inc. (1971)3 All.ER 1175). Yet, in another famous case 'Spycatcher', the principle has been clearly illustrated, which reads thus:
"An interlocutory injunction was granted against newspaper 'A' prohibiting publication of extracts from the book "Spycatcher" pending the trial of the action. The Attorney General claimed that the book contained confidential matter. Knowing of the injunction, newspaper 'B' went ahead and published. The House of Lords, in A.G. v. Times Newspapers Ltd. (1991) 2 All, E.R.398) held that this was a contempt of Court. Newspaper B was interfering with the administration of justice, not because it was itself breaching, or assisting in the breach of a Court Order. The injunction prohibited publication by newspaper A, not by newspaper B. Newspaper B was in contempt because it had knowingly interfered with the administration of justice in the confidentiality action brought by the Attorney General against newspaper A. Newspaper B was knowingly interfere with the administration of justice in that action because, by granting an interlocutory injunction against newspaper A, the Court had made plain that the trial of the confidentiality action and the Attorney General's claim to an injunction against newspaper A should not be nullified in advance by prior publication of extracts from the book. This principle has been very recently reiterated by the House of Lords (1993 (3) All.E.R. 537). The House has, however, pointed out an essential distinction in that the third party's liability is for criminal contempt and arises not because the contemner is himself affected by the prohibition contained in the Order but because his act constitutes a wilful interference with the administration of justice by the Court in the proceedings in which the Order was made. A Division Bench of the Calcutta High Court in Gopal Ch. Biswas v. Pradip Kumar Ghosh 2000 (1) CHN 396, has held Officer-in-Charge of a Police Station and Block Land and Land Reforms Officer who were not parties to the original proceedings as guilty of contempt for their acts which disturbed the status quo directed to be maintained on the basis that such acts amounted to obstructing the administration of justice."
24. In a recent case in England in Z Limited v. A and others (1982) All.ER 556, an injunction was issued (commonly known in England as the Mareva Injunction) restraining some of the Defendants from removing their assets outside the jurisdiction. Lord Denning MR, said:
"Next take a case, a very usual case, where the Mareva injunction is not served on the Defendant at the outset. He may be out of the jurisdiction or away from home, or simply not available. So, the Plaintiff simply gives notice to the bank of the injunction. Sometimes the Plaintiff deliberately delays serving the Defendant: because the Defendant, on being served himself would whisk the money away before the bank had notice of it. In such cases the Defendant, not having been served, is not guilty of a contempt himself. So the bank cannot be guilty of aiding and abetting. What then is the principle? It seems to me to be this. As soon as the Judge makes his Order for a Mareva injunction restraining the Defendant from disposing of his assets, the Order takes effect at the very moment that it is pronounced: see RSC Order 42, Rule 3 and Holtby v. Hodgson (1889)24 QBD 103). Even though the Order has not then been drawn up, even though it has not then been served on the Defendant, it has immediate effect on every asset of the Defendant covered by the injunction. Every person who has knowledge of it must do what he reasonably can to preserve the assets. He must not assist in any way in the disposal of it. Otherwise he is guilty of a contempt of Court (1982) 1 All.E.R. 556)
In the same case Eveleigh, LJ. said:
"....It was argued that the liability of a third party arose because he was treated as aiding and abetting the Defendant (i.e., he was an accessory) and as the Defendant could himself not be in breach unless he had notice it followed that there was no offence to which the third party could be an accessory. In my opinion this argument misunderstands the true nature of the liability of the third party. He is liable for contempt of Court committed by himself. It is true that his conduct may very often be seen as possessing a dual character of contempt of Court by himself and aiding and abetting the contempt by another, but the conduct will always amount to contempt of Court by himself. It will be conduct which knowingly interferes with the administration of justice by causing the Order of the Court to be thwarted."(1982) 1 All.E.R. 556)
25. A Full Bench of Madras High Court after exhaustive consideration of various cases held thus:
"We can see this clearly that the Courts in India invariably accepted the law applied in England and found (1) a party to the suit if he had notice or knowledge of the Order of the Court; (2) a third party or a stranger, if he had aided or abetted the violation with notice or knowledge of the Order of injunction guilty of civil contempt and otherwise found a third party guilty of criminal contempt if he has been found knowingly obstructing implementation of its Order or direction."
26. The decisions referred to by the learned Senior Counsel in Union of India v. Satish Chandra Sharma, MANU/SC/0482/1979 : [1980]2SCR298 , and Syed Abdul Razack v. Matadin Agarwal, : (1994)4SCC673 , are not relevant in this regard.
27. We have to consider the matter within the framework of Order 39, Rule 2-A and the said provision did not clearly rule out as to a person against whom the injunction was granted alone can be punished for violation. On the other hand, it is clearly stated in the provision "a person guilty of disobedience or breach of injunction Order" is liable for the consequences under Rule 2-A. It cannot be disputed that an order of the Court has to be respected by the parties who are bound by it. But, it does not mean that it should be disrespected by the parties who are not bound by it. Therefore, every effort has to be made to implement the order of the Court and not to disobey the same.
28. The Court has been vested with the power to punish the violators of the Orders passed by it. This provision is engrafted in Order 39, Rule 2-A Code of Civil Procedure dehors the provisions in Contempt of Courts Act. The Supreme Court observed in Reliance Petrochemicals Limited v. Proprietors of Indian Express Newspapers Bombay Limited, MANU/SC/0412/1988 : AIR1989SC190 , thus:
"The question of contempt must be judged in a particular situation. The process of due course of administration of justice must remain unimpaired. Public interest demands that there should be no interference with judicial process and the effect of the judicial decision should not be pre-empted or circumvented by public agitation or publications. It has to be remembered that even at turbulent times through which the developing countries are passing, contempt of Court means interference with the due administration of justice.
The law of contempt secures public respect and confidence in the judicial process and provides the sanction for any act or conduct which is likely to destroy or impair such respect and confidence. Sawant J., brought out the significance of the contempt jurisdiction with passionate overnotes:
"The rule of law is the foundation of a democratic Society. The judiciary is the guardian of the rule of law. Hence, judiciary is not only the third pillar, but the central pillar of the democratic State. In a democracy like ours, where there is a written Constitution which is above all individuals and institutions and where the power of judicial review is vested in the superior Courts, the judiciary has a special and additional duty to perform, viz., to oversee that all individuals and institutions including the executive and the Legislature act within the framework of not only the law but also the fundamental law of the land. The duty is apart from the function of adjudicating the disputes between the parties which is essential to peaceful and orderly development of the Society. If the judiciary is to perform its duties and functions effectively and remain true to the spirit with which they are sacredly entrusted to it, the dignity and authority of the Courts have to be respected and protected at all costs. Otherwise, the very cornerstone of our constitutional scheme will give way and with it will disappear the rule of law and the civilized life in the Society. It is for this purpose that the Courts are entrusted with the extraordinary power of punishing those who indulge in acts whether inside or outside the Courts, which tend to undermine their authority and bring them in disrepute and disrespect by scandalising them and obstructing them from " discharging their duties without fear or favour. When the Court exercises this power, it does not do so to vindicate the dignity and honour of the individual Judge who is personally attacked or scandalised, but to uphold the majesty of the law and of the administration of justice. The foundation of judiciary is the trust and the confidence of the people in its ability to deliver fearless and impartial justice. When the foundation itself is shaken by acts which tend to create disaffection and disrespect for the authority of the Court by creating distrust in its working, the edifice of the judicial system gets eroded."
29. In Kapildeo Prasad v. State of Bihar 1997 (7) SCC 569, the Supreme Court held that disobedience of the Court's Order strikes at the very root of the rule of law on which the system of Indian Government is based.
30. Therefore, it is clear that any person, who interferes with the Court of justice or his acts tend to disturb or detract the administration of justice is liable for consequences. It is not necessary that he should be a party to the proceedings. Hence, a person having knowledge of the Order cannot be allowed to violate with impunity and he cannot be allowed feign ignorance.
31. Admittedly, in the instant case, status quo orders were issued against the father and when an application was filed for punishing the father of the appellants for disobeying the status quo orders, he had stated that he had already gifted the 'B' schedule property to his sons and all the sons are making constructions. After the death of Sharfuddin, the appellants were brought on record. Thereafter application was filed for punishing the appellants for contempt. It was the case of the appellants in the application filed by the petitioners/plaintiffs that the property in question was gifted by their father in 1981 and they have every right to proceed against the property. They further stated that they have also executed certain sale deeds in 1997 much after the status quo order was passed against their father. They further stated that the status quo order was confined to their father only and they are not bound by the status quo orders. It is not their case that they were not aware of the status quo orders passed against their father. At any rate, knowing fully well that there is specific order against their father, they have executed the sale deeds in respect of 'B' Schedule property.
32. The learned Senior Counsel would submit that after bringing the legal representatives on record, it incumbent on the part of the respondents again to obtain a fresh order of status quo against the legal representatives so as to bind them and till no such order was obtained against the appellants, the appellants cannot be found fault with. Thus, the learned Single Judge has committed an error of law.
33. But, this contention cannot be accepted for the reason that though status quo order was granted against the father, yet the sons cannot be allowed to flout the status quo order which was granted against their father after they were brought on record as legal representatives. It is not the case of the appellants that they have parted with the property by executing sale deed prior to their bringing on record as legal representatives, but it is only after they were brought on record, they have parted with the property. Thus, it is clearly established that the appellants having full knowledge of the status quo order which was passed against their father, executed the sale deeds on the premise that the status quo orders would not in any way bind them. But, this contention has no legs to stand inasmuch as the status-quo order passed against Sharfuddin is required to be respected by the legal representatives who succeeded to the property in question. It is not a case of third party alleging that he is not bound by the injunction order passed against the defendants. But the appellants are none else than the legal representatives and they have the full knowledge of the status quo order passed against their father. Therefore, a person knowing fully well that an injunction order was passed against the defendant and still violates the injunction order irrespective of the fact whether he is a party to the injunction or not and commits violation of the order, is required to face the consequences under Rule 2-A of Order 39. Thus, we are not in a position to agree with the contention raised by the learned Counsel for the appellants that the appellants have not committed any contempt of the orders of the lower Court.
34. Thus we are in agreement with the learned Single Judge that the Appellants have violated the Orders of status quo.
35. The learned Counsel alternatively also submits that assuming that a violation has been committed, but yet the direction to deposit Rs.20,000/- is not sustainable. He submits that under Rule 2-A of Order 39, if a person violates the injunction order, he is not only liable to be sent to the Civil Prison but his property will also be attached and the attachment will continue for a period of one year and if the disobedience still persists, it is open of the Court to put the property for sale and direct a portion of the amount to be forfeited and paid to the other side. He submits that the direction to deposit is wholly unsustainable as no such direction could be passed straight away without attaching the property.
36. It is not in dispute that the learned Single Judge has directed issuance of warrant for attachment of the properties of the appellants for a period of six months or until such time the appellants deposit an amount of Rs.20,000/- into the Court. The direction of the learned judge in this regard is not as per the procedure laid down under Rule 2-A. It is only after lapse of one year, he could order the sale of the property. But, there is no provision for deposit of the amounts in the Court and to permit the petitioner to withdraw the same. It cannot be also be disputed that when once the order is violated, it is open for the Court either to commit the contemnor for Civil Prison or to attach the property or to order both. But, however, in the case of attachment of property, the same cannot be auctioned for a period of one year. The learned Counsel would also submit that the amount directed to be remitted should represent the extent of damages suffered by the other side and in the instant case there is no such finding. But, However, the learned Judge has directed the appellants to deposit Rs.20,000/-without there being any proper material. The learned senior Counsel would refer to certain passages from the book of legal maxims by HERBERT BROOM. He submits that although damnum absque injuria, is a matter of frequent occurrence, yet injuria absque damno may be said to be unknown to our law; for a "damage is not merely pecuniary, but an injury imports a damage when a man is thereby hindered of his right."
37. He, therefore, submits that the injury to right imports damage and in the instant case no injury was caused and therefore the question of awarding damages would not arise. Learned Counsel would submit that if the violation is established, the appellants ought to have been subjecting to the consequences under Clause 2-A, but directing them to deposit the amount is illegal and contrary to law.
38. He submits that the case reported in Samee Khan v. Hindu Khan, MANU/SC/0564/1998 : AIR1998SC2765 , fully covers the situation. He refers to the following paragraphs in the said judgment:
"No doubt the wording as framed in Order 21, Rule 32(1) would indicate that in enforcement of the decree for injunction a judgment-debtor can either be put in civil prison or his property can be attached or both the said courses can be resorted to. But once the decree is enforced, the judgment-debtor is free from the tentacles of Rule 32. The whole operation is for enforcement of the decree. If the injunction or direction was subsequently set aside or if it is satisfied, the utility of Rule 22 gets dissolved. But the position under Rule 2-A of Order 39 is different. Even if the injunction order was subsequently set aside, the disobedience does not get erased. It may be a different matter that the rigour of such disobedience may be toned down if the order is subsequently set aside. Sub-rule (2) of Rule 2-A of Order indicates that attachment will continue only till the breach continues or the disobedience persists subject to a limit of a one year period. If the disobedience ceases to continue in the meanwhile, the attachment also would cease. Thus even under Order 39, Rule 2-A, the attachment is a mode to compel the opposite party to obey the order of injunction. But detaining the disobedient party in civil prison is a mode of punishment for his being guilty of such disobedience.
The words "and may also" in Rule 2-A cannot altogether be detached from the other worlds in the sub-rule. The principle of noscitur a sociis can profitably be used to construct the words "and may also" in the sub-rule. The word "also" has different attributes and its meaning is not to be confined to "furthermore". In legalistic use, the word "also" can be employed to denote other meanings such as 'as well' or 'likewise'. The word "and" has generally a cumulative sense, but sometimes it is by force of a context read as "or". It need not necessarily be understood as denoting a conjunctive sense.
Hence the words "and may also" in Rule 2-A cannot be interpreted in context as denoting a step which is permissible only as additional to attachment of property of the opposite party. If those words are interpreted like that, it may lead to an anomalous situation. If the person who defies the injunction order has no property at all, the Court becomes totally powerless to deal with such a disobedient party. He would be immuned from all consequences even for any open defiance of a Court order. No pragmatic interpretation therefore, must be this: it is open to the Court to attach the property of the 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 one of them alone need be chosen. It is left to the Court to decide on consideration of the fact situation in each case."
39. In view of the above, the Civil Court is vested with the power to send the contemnor to the Civil Prison and to attach the property of the contemnor. But, however, we are in agreement with the learned Senior Counsel for the appellants that the conditional attachment of property and deposit of Rs. 20,000/- is unwarranted and runs counter to the statutory provisions. This is not a case where a person is being dealt with under the provisions of the Contempt of the Courts Act. Therefore, the learned Judge ought to have restricted the condition to the provisions contained in Order 39, Rule 2-A. Since the power of punishment has to be strictly construed, the learned Judge ought not have exceeded the powers vested under Order 39, Rule 2-A. Thus, we find that the portion relating to conditional attachment of property subject to deposit a sum of Rs. 20,000/- and permitting the respondents to withdraw the same is not sustainable. Accordingly, it is set aside.
40. Having agreed with the finding of the learned Single Judge that the Appellants have violated the Orders of the Court, we would have normally, ordered the consequences contemplated under Order 39, Rule 2-A Civil Procedure Code. But, in view of the later developments that the appeal and LPA filed by the petitioners were dismissed, we are not inclined to exercise the power under Rule 2-A of Order 39 at this stage.
41. This appeal is accordingly allowed in part to the extent indicated above. No costs.
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