Friday, 17 April 2020

Whether application for breach of an injunction under O 39 R 2A of CPC is tenable after disposal of the civil suit?

After final disposal of the said civil suit, on 8.9.2014 an application was filed by the non-applicant No. 1 under Order 39 Rule 2-A of the CPC complaining the breach of injunction on 5.2.2014. Thus, admittedly, the application under Order 39 Rule 2-A of the CPC was filed by the non-applicant No. 1 after final disposal of the civil suit. The Apex Court in the case of Kanwar Singh Saini (supra) has held as under-

"An application under Order 39 Rule 2-A CPC lies only where disobedience/breach of an injunction granted or order complained of the was one that is granted by the court under Order 39 Rule 1 and 2 CPC, which is naturally to ensure during the pendency of the suit. However, once a suit is decreed, the interim order, if any, merges into the final order and the court cannot entertain an application under Order 39 Rule 2-A. An application under Order 39 Rule 2-A is maintainable only during the pendency of the suit in case the interim order passed by the court or undertaking given by the party is violated."
8. Thus, as per the said judgment, an application under Order 39 Rule 2-A is maintainable only during the pendency of the civil suit in case the interim order passed by the court or undertaking given by the party is violated.

IN THE HIGH COURT OF MADHYA PRADESH (INDORE BENCH)

Civil Revision No. 443/2018

Decided On: 22.08.2019

Kanhaiyalal  Vs.   Rameshwar

Hon'ble Judges/Coram:
Vandana Kasrekar, J.

Citation: AIR 2020 MP 7


1. The applicants have filed present Civil Revision under Section 115 of the C.P.C. challenging the order dated 7.5.2018 passed by the Additional District Judge, Khategaon, District-Dewas in Misc. Appeal No. 5/2017, whereby reversing the order dated 30.1.2017 passed by the Civil Judge, Class-II, Khategaon, District-Dewas in MJC No. 20/2014.

2. The non-applicant No. 1 has filed a civil suit for declaration of title and permanent injunction against the applicants with respect to the agricultural land bearing survey No. 632/5 area 1.028 hectare and survey No. 654/1 area 1.320 hectare situated at village Sandalpur, Tehsil Khategaon, District-Dewas. Along with the said suit, the non-applicant No. 1 has also filed an application under Order 39 Rule 1 and 2 praying therein for restraining the applicants from making any interference in the possession of the non-applicant No. 1 over the suit land. The said application was allowed by the trial court vide order dated 29.10.2013. The said civil suit was subsequently, decreed by the trial court on 30.6.2014. Thereafter, the non-applicant No. 1 has moved an application under Order 39 Rule 2-A of the CPC before the trial court stating therein that despite being well aware of the order of temporary injunction issued against the applicants, they tried to disturb the possession of the non-applicant No. 1 over the suit land on 5.9.2014. By way of the said application, a prayer was made by the non-applicant No. 1 to send the present applicants in civil imprisonment for disobeying and committing breach of the order of temporary injunction. The aforesaid prayer made by the non-applicant No. 1 was opposed by the present applicants by filing a reply in the matter. As per the reply, the applicants have not disobeyed the order of temporary injunction. The land of the present applicants and the non-applicant No. 1 is adjacent to each other without there being any boundary mark; therefore, taking shelter of the order of temporary injunction, the non-applicant No. 1 wants to dispossess the present applicants from their own land. The trial court vide order dated 30.1.2017 has dismissed the said application. The non-applicant No. 1 had challenged the said order by filing an appeal under Order 43 Rule 1 of the CPC before the Additional District Judge. The learned Judge vide order dated 7.5.2018 has allowed the said appeal. Being aggrieved with the said order, the applicants have filed the present civil revision.

3. Learned counsel for the applicants submits that in the present case, final decree has been passed by the court below, therefore, the application under Order 39 Rule 2-A of the CPC is not maintainable. He further submits that on the date of alleged disobedience of the order, the order of temporary injunction was not effective. After final disposal of the suit, the order of grant of temporary injunction has come to an end. He further submits that, while considering the application under Order 39 Rule 2-A the allegation made in the application has to be proved beyond doubt because any action under Order 39 Rule 2-A is punitive in nature. He further submits that, the learned appellate court has reversed the findings given by the trial Court without any cogent reason.

4. To bolster his submission, learned counsel for the applicants has relied on the judgment passed by this Court in the case of Seema Dubey vs. Prakash Dhirawani reported in MANU/MP/0565/2009 : 2004 (4) M.P.L.J. 518; and the judgment passed by the Apex Court in the cases of Kanwar Singh Saini vs. High Court of Delhi reported in MANU/SC/1111/2011 : (2012) 4 SCC 307 and Food Corporation of India vs. Sukh Deo Prasad reported in MANU/SC/0444/2009 : (2009) SCC 665.

5. On the other hand, learned senior counsel appearing on behalf of the respondents supports that order passed by the court below. He submits that, the order of temporary injunction was passed in favour of the applicant No. 1 on 29.10.2013 and the interim injunction order was violated on 5.2.2014 and the civil suit was decreed on 30.6.2014 and on the date when the violation of injunction was alleged, the suit was pending and, therefore, the court below has not erred any error in passing the impugned order. Learned senior counsel for the respondents further submits that, theory of beyond reasonable doubt is not applicable in the civil matter. Under such circumstances, he submits that the present civil revision is devoid of merit and it deserves to be dismissed.

6. Heard learned counsel for the parties and also perused the record.

7. In the present case, a civil suit has been filed by the non-applicant No. 1 for declaration of title and permanent injunction. Along with the said suit, the non-applicant No. 1 has also filed an application under Order 39 Rule 2-A of the CPC for temporary injunction. The said application was allowed by the trial court vide order dated 29.10.2013 and temporary injunction has been passed in favour of the non-applicant No. 1 and the applicants were restrained from making any interference in the possession of the suit property. Thereafter, vide order dated 30.6.2014 the suit was decreed by the trial Court. After final disposal of the said civil suit, on 8.9.2014 an application was filed by the non-applicant No. 1 under Order 39 Rule 2-A of the CPC complaining the breach of injunction on 5.2.2014. Thus, admittedly, the application under Order 39 Rule 2-A of the CPC was filed by the non-applicant No. 1 after final disposal of the civil suit. The Apex Court in the case of Kanwar Singh Saini (supra) has held as under-

"An application under Order 39 Rule 2-A CPC lies only where disobedience/breach of an injunction granted or order complained of the was one that is granted by the court under Order 39 Rule 1 and 2 CPC, which is naturally to ensure during the pendency of the suit. However, once a suit is decreed, the interim order, if any, merges into the final order and the court cannot entertain an application under Order 39 Rule 2-A. An application under Order 39 Rule 2-A is maintainable only during the pendency of the suit in case the interim order passed by the court or undertaking given by the party is violated."
8. Thus, as per the said judgment, an application under Order 39 Rule 2-A is maintainable only during the pendency of the civil suit in case the interim order passed by the court or undertaking given by the party is violated.

9. In the present case, the learned Additional District Judge has allowed the appeal on the ground that on the date when violation of the injunction was alleged, the civil suit was pending, which cannot be accepted in the light of the judgment passed by the Apex Court in the case of Kanwar Singh Saini (supra).

10. In the case of Food Corporation of India (supra) the Apex Court has held thus;

"The power exercised by a court under Order 39 Rule 2-A of the CPC 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 made 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 cannot construe the order in regard to which disobedience/breach is alleged, as creating an obligation to do something which is not mentioned in the 'order', on surmises, suspicions and inferences. The power under Rule 2-A should be exercised with great caution and responsibility."
11. As per this judgment, the power under Order 39 Rule 2-A of the CPC is punitive in nature and it should be exercised with great caution and responsibility.

12. In the present case, learned Appellate Court, while considering the appeal in casual manner, has allowed the appeal and set aside order passed by the trial court. Similarly this Court in the case of Seema Dubey (supra) has held that the provisions of Order 39 Rule 2-A of CPC are quasi criminal in nature and since a person violating the injunction order passed by the civil court or otherwise disregarding the same is liable to be detained in the civil prison. Therefore, the provision of disregarding of injunction order has to be proved beyond all reasonable doubts by the persons complaining of such violation.

13. In the present case, the non-applicant No. 1 has failed to prove the breach of injunction against the applicants. Thus, in the light of aforesaid, the order passed by the learned appellate court does not survive.

14. Accordingly, this civil revision is allowed. The impugned order dated 7.5.2018 passed by the Additional District Judge, Khategaon, District-Dewas in Misc. Appeal No. 5/2017 is hereby set aside.




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