Whether assistant charity commissioner is the court for the purpose of the contempt of Courts Act?

The scheme of the Act, the powers conferred on the Assistant Charity Commissioner and the perusal of the aforesaid provisions of the Act clearly show that the Assistant Charity Commissioner has to be a judicial officer or an officer with a legal background; has to hear parties wherever dispute is raised with regard to existence of a public trust or with regard to a property being trust property or otherwise and then give a definitive judgment after taking evidence having regard to the facts of the case and by application of law. The judgment is final unless interfered with in appeal or thereafter tested in appeal before the High Court. The jurisdiction of the Civil Court has been barred in the matters inquired into and decided by the Assistant Charity Commissioner. {Para 16}

17. The aforesaid provisions make it clear that the Assistant Charity Commissioner has not only the trapping of a judicial tribunal but also has power to give a decision or a definitive judgment which as finality and authoritativeness which are essential tests of a judicial pronouncement. The Assistant Charity Commissioner, therefore, possesses all the attributes of a court. The fact that the Assistant Charity Commissioner has also to perform some administrative functions is not of any relevance for coming to the conclusion that he is not a court, having regard to the provisions of the Act which substantially confer on him the power to give a definite judgment subject to finality in appeal, after hearing all concerned. Functions of the Assistant Charity Commissioner are predominantly adjudicatory. The Assistant Charity Commissioner has almost all the powers which an ordinary Civil Court has including power of summoning witnesses, compelling production of documents, examining witnesses on oath and coming to a definite conclusion on the evidence induced and arguments submitted.

18. For the foregoing reasons, we hold that the Assistant Charity Commissioner is a Court for the purposes of Sections 2 and 3 of the Contempt of Courts Act, 1971.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1534 of 1995

Decided On: 04.03.2003

 K. Shamrao and Ors. Vs. Assistant Charity Commissioner

Hon'ble Judges/Coram:

Y.K. Sabharwal and H.K. Sema, JJ.

Author: Y.K. Sabharwal, J.

Citation: MANU/SC/0175/2003,(2003) 3 SCC 563

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Whether court can punish defendant for breach of injunction if he has not wilfully disobeyed injunction order?

Viewed differently, contempt of a civil nature can be made out

under Order XXXIX Rule 2A CPC not when there has been

mere “disobedience”, but only when there has been “wilful

disobedience”. The allegation of wilful disobedience being in

the nature of criminal liability, the same has to be proved to

the satisfaction of the court that the disobedience was not

mere “disobedience” but “wilful” and “conscious”. This Court

in the case of Ram Kishan v. Tarun Bajaj, (2014) 16 SCC

204, considering the implication of exercise of contempt

jurisdiction, held that the power must be exercised with

caution rather than on mere probabilities. While delineating

the conduct which can be held to be “wilful disobedience”, this

Court held that:

“12. Thus, in order to punish a contemnor, it

has to be established that disobedience of the

order is “wilful”. The word “wilful” introduces a

mental element and hence, requires looking

into the mind of a person/contemnor by

gauging his actions, which is an indication of

one's state of mind. “Wilful” means knowingly

intentional, conscious, calculated and

deliberate with full knowledge of consequences

flowing therefrom. It excludes casual,

accidental, bona fide or unintentional acts or

genuine inability. Wilful acts does not

encompass involuntarily or negligent actions.

The act has to be done with a “bad purpose or

without justifiable excuse or stubbornly,

obstinately or perversely”. Wilful act is to be

distinguished from an act done carelessly,

thoughtlessly, heedlessly or inadvertently. It

does not include any act done negligently or

involuntarily. The deliberate conduct of a

person means that he knows what he is doing

and intends to do the same. Therefore, there

has to be a calculated action with evil

motive on his part. Even if there is a

disobedience of an order, but such

disobedience is the result of some

compelling circumstances under which it

was not possible for the contemnor to

comply with the order, the contemnor

cannot be punished. “Committal or

sequestration will not be ordered unless

contempt involves a degree of default or

misconduct.”

(Emphasis supplied)

REPORTABLE

 IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 859-860 OF 2022

FUTURE COUPONS PRIVATE LIMITED & ORS Vs AMAZON.COM NV INVESTMENT HOLDINGS LLC

Author: N.V. RAMANA, CJI .

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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

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When legal representatives of deceased defendant can be held guilty for violation of injunction order?

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.

Hon'ble Judges/Coram:
G. Bikshapathy and R. Subhash Reddy, JJ.

Citation: 2003(3) Civil court cases695 AP

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Whether a person can be held guilty for violation of interim orders passed by court which has no jurisdiction to try said case?

The learned counsel for the Defendants 1 and 2 submitted that this is not a proceeding for contempt but a proceeding under Rule 2-A of Order 39 of the Civil Procedure Code. Learned counsel submitted that proceedings under Order 39 Rule 2-A are a part of the coercive process to secure obedience to its injunction and that once it is found that the Court has no jurisdiction, question of securing obedience to its orders any further does not arise. Learned counsel also submitted that enforcing the interim order after it is found that the Court had no jurisdiction to try the said suit would not only be unjust and illegal but would also reflect adversely upon the dignity and authority of the Court. It is also suggested that the plaintiff had instituted the present suit in the Civil Court knowing full well that it had no jurisdiction to try it . It is not possible to agree with any of these submission not only on principle but also in the light of the specific provision contained in Section 9-A of Code of Civil Procedure (Maharashtra Amendment). In the light of the said provision, it would not be right to say that the Civil Court had no jurisdiction to pass interim order or interim injunction, as the case may be, pending decision on the question of jurisdiction. The orders made were within the jurisdiction of the Court and once this is so, they have to be obeyed and implemented. It is not as if the defendants are being sought to be punished for violations committed after the decision of the High Court on the question of jurisdiction of the Civil Court. Here the defendants are sought to be punished for the disobedience and violation of the order of injunction committed before the decision of the High Court in Vishanji Virji Mepani. According to Section 9-A, the Civil Court- and the High Court - did have the power to pass interim orders until that decision. If they had that power they must also have the power to enforce them. In the light of the said provision, it cannot also be held that those orders could be enforced only till the said decision but not thereafter. The said decision does not render them (the interim orders passed meanwhile) either non-est or without jurisdiction. Punishing the defendants for violation of the said order committed before the said decision (Vishanji Virji Mepani) does not amount, in any event, to enforcing them after the said decision. Only the orders are being passed now. The violations are those committed before the said decision.

The correct principle, therefore, is the one recognised and reiterated in Section 9-A - to wit, 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 orders. 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 orders 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 situation, 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 foce, 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.

Supreme Court of India

Tayabbhai M. Bagasarwalla & ... vs Hind Rubber Industries Private ... on 19 February, 1997

Bench: B.P. Jeevan Reddy, Suhas C. Sen

Citation:(1997)3 SCC 443,[1997]2SCR152

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Whether court can direct that his orders be read along with pleading,proof and other data on record?

 Learned District Judge in his order dated November 3, 2000 noticed in para 3 that the plaintiff was owner of two trucks HP 12-2209 and HP 11-4009 and had deployed these trucks with defendant No. 2 for lifting the clinker from GACL Complex since April, 1997. Learned District Judge in his impugned order observed that the order passed by him has to be read along with the pleadings, proof and other data on record in the suit itself and the operative part of the order, though does not refer to particular registration number of the trucks, however, identity of these three trucks was to be found in the suit laid by the plaintiff and therefore, it was not open for the defendants to say that as registration numbers of the trucks were not given and, therefore, not bound to comply with the orders.

25. In our view, the reasoning given by the learned District Judge is fallacious and cannot be accepted. When an order is passed by the Court, it is not open to a party to go behind the order, by looking into the pleadings together the intention of the Court or mind of the Presiding Officer, to comply with the orders of the Court, particularly when any non-compliance entail punitive consequences. 

IN THE HIGH COURT OF HIMACHAL PRADESH

F.A.O. Nos. 319 and 426 of 2001

Decided On: 08.01.2003

 Sushil Mittal and Anr. Vs. R.D. Bhardwaj and Anr.

Hon'ble Judges/Coram:
Kamlesh Sharma, Actg. C.J. and K.C. Sood, J.

Citation: 2004(1) Civil court cases341 HP

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Whether person can be held guilty for breach of injunction order if there is unintentional disobedience?

 It is settled position that before a party can be punished for disobeying order under Rule 2-A of Order 39, it must be established by the other party that the order which is alleged to have been disobeyed was clear, unambiguous and the party was not under a bona fide apprehension as to the scope of such an order. It is equally true that when the injunction is in force, irrespective of the legality of the orders, the party is bound to obey the orders of the Court. In case of disobedience; such a party is liable to be proceeded under Order 39, Rule 2A(1) of the Code. The Jurisdiction of the Court to punish a contumacious party is to vindicate the majesty of rule of law. It is not intended to benefit the parties. It is equally settled that in a suit for permanent injunction to restrain the defendant and their servants etc. from doing certain activity, the persons who are not party to the lis, cannot be held responsible in case of disobedience of the orders.
It is well settled that it is only wilful disobedience of the orders of the Court passed under Order 39, Rules 1 and 2 of the Code of Civil Procedure which invites punitive action depriving a person of his personal liberty and property. The expression "wilful" means a deliberate or voluntary or Intentional Act. Unintentional disobedience is not enough to justify an action against the defaulter under Rule 3 of Order 39.

IN THE HIGH COURT OF HIMACHAL PRADESH

F.A.O. Nos. 319 and 426 of 2001

Decided On: 08.01.2003

 Sushil Mittal and Anr.
Vs.
 R.D. Bhardwaj and Anr.

Hon'ble Judges/Coram:
Kamlesh Sharma, Actg. C.J. and K.C. Sood, J.

Citation: 2004(1) Civil court cases341 HP

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Precaution to be taken by court while passing order for attachment of property for disobedience of injunction order

The penalty imposed by the trial Court reads as hereunder:

"The opp. Parties are hereby found guilty of disobedience of status quo order of this Court. The properties of the O.Ps. be attached and they also be detained in Civil prison for seven days."

It is clearly readable from the above quoted law and underlined portion from the impugned order that the order of attachment of the property as one of the penalties is not in accordance with the provision of law. Extent of property and duration for which it should remain under attachment and extent of restriction for using or dealing with such properties by the person guilty of breach of order of injunction must be made clearly specific and no ambiguity or vagueness should be there. Apart from that, such penalty should be proportionate to the gravity of the act complained. Applying judicial discretion in that respect is the salutary principle.

IN THE HIGH COURT OF ORISSA

Civil Revision No. 71 of 2002

Decided On: 09.05.2002

Jaigun Nisa Bibi and 2 Ors.
Vs.
 Sk. Badiruddin Zahed

Hon'ble Judges/Coram:
P.K. Tripathy, J.

Citation:2002(3) Civil court cases 513 Orissa

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Whether person disobeying injunction order can be detained in civil prison as well as his properties can be attached?

 Hence the words "and may also" in Rule 2-A cannot be interpreted in the context as denoting to 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 interpretation shall be allowed to bring about such a sterile or anomalous situation (vide Constitution Bench in Vidya Charan Shukla v. Khubchand Baghel, MANU/SC/0120/1963 : [1964]6SCR129 ). The 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.

IN THE SUPREME COURT OF INDIA

SLP (C) No. 11992 of 1998

Decided On: 01.09.1998

Samee Khan Vs. Bindu Khan

Hon'ble Judges/Coram:

Saiyed Saghir Ahmad and K.T. Thomas, JJ.

Citation:1999(1) PLR465 SC

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How a party can prove that he has not violated injunction order?

 It is, however, to be borne in mind that where a person who is not a party to the suit is proceeded against in order to punish him it is essential that he should be made a party to the proceeding for violation and it should be brought home by sufficient and unimpeachable evidence that he had been guilty of abetting violation of injunction. A party proceeded against for violation of injunction can prove his innocence in the following manner, i.e. by proving that (a) the order was not within knowledge, or (b) the order was ambiguous and was reasonably capable of more than one interpretation or (c) that in fact he did not intend to disobey the order, but conducted himself in accordance with his interpretation of the order. The question whether a party has understood an order in a particular manner, and has conducted himself in accordance with such a construction is primarily one of fact. The party setting up such a plea has to prove it.

Citation : AIR 1994 Ori 173

IN THE HIGH COURT OF ORISSA

Misc. Appeal No. 170 of 1990

Decided On: 04.01.1994

 Prafulla Kumar Mohapatra
Vs.
Jaya Krushna Mohapatra and Ors.

Hon'ble Judges/Coram:
Dr. Arijit Pasayat, J.

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Whether court should decide suit and application for breach of injunction by common judgment?

 A proceeding under Order XXXIX. Rule 2A, C.P.C., initiated on the ground of disobedience or breach of injunction order, is in the nature of a criminal proceeding as the person against whom such proceeding is initiated is liable to be detained in prison if it is found that he had committed breach of injunction order. Since a punishment is imposed and a person is sent to Jail, the principle on which these proceedings are decided are entirely different. Here the principle of criminal law will apply and the plaintiff will have to establish beyond any shadow of doubt that the defendants had committed disobedience or breach of the injunction order even though he had full knowledge of the same. The burden of proving its case in such cases lies entirely on the plaintiff. The principle on which a civil suit is decided are different as here decision on the issues arising out of pleadings is taken on the basis of preponderance of evidence. Therefore, a common judgment and order deciding the main suit as well as application under Order XXXIX, Rule 2A. C.P.C. will not be proper. In my opinion, the order passed by learned Munsif on 11.12.1989 holding the defendants guilty in Misc. Case No. 67 of 1987 and directing them to be detained in civil prison is liable to be set aside on this ground alone.

Citation : AIR 1998 All 228

IN THE HIGH COURT OF ALLAHABAD

C.M.W.P. No. 682 of 1990

Decided On: 06.02.1998

 Gyan Chand Jain   Vs.  XIIIth Addl. District and Sessions Judge, Agra 

Hon'ble Judges/Coram:
G.P. Mathur, J.

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Whether application for breach of injunction order can be filed in transferee court if case is transferred?

 I squarely fall in line with the view taken by Punjab and Haryana High Court and on the foregoing analogy hold that whenever a suit, after passing an interlocutory order, is transferred to a subordinate Court, the business of the transferring Court will be deemed to have been transferred to the subordinate Court and any motion for disobedience of an order passed by the transferring Court can lie before the Court to which the matter has been transferred.

9. It is Rule 2-A of Order 39 which makes provision for disobedience of an ad interim injunction passed in terms of Rule 2. Therefore, an application projecting disobedience can be safely termed to be an offshoot of the action taken under Rule 2. After the transfer of business to the transferee Court, it will be the latter Court which will have jurisdiction to try this application. This is particularly so when Rule 2-A expressly makes it clear that "the Court to which the suit or proceeding is transferred may pass orders" in a particular mode.

IN THE HIGH COURT OF JAMMU AND KASHMIR

C.O.A. No. 5 of 1988

Decided On: 22.02.1996

Arjan Khajuria Vs.  Parkash Chand and Ors.

Hon'ble Judges/Coram:
A.M. Mir, J.
Citation : AIR 1997 J and K 34

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Whether a person can be held guilty for breach of injunction order even if he was not party to suit?

The respondent set up a case that the owner of the disputed premises is Smt. Savita Singh and the respondent No. 3 has denied to be present at the site during the period when the outlets in question were closed by filling earth. The architect who was working at the instance of respondent No. 3 had filed his affidavit and stated that he had filled the strip of land with earth at the instance of respondent No. 3. The respondent No. 3 stated that he had been away from Dehradun at the relevant time and also said that the petitioner has no right of easement. Now, after the judgment of the civil court decreeing the petitioners' suit for injunction accepting the easementary right, it is no more open to the respondent to plead otherwise and deny that there is no easementary right of flowing rain and flood water through the disputed outlets. The technical plea raised is that owner of the premises is Smt. Savita Singh and the respondent is not the owner and he has no concern with the same. The judgment of the learned Civil Judge shows that he mainly proceeded on placing reliance on 1962 ALJ 201 (supra) and has not noticed the relevant amendments made in the Code otherwise he would have invoked the inherent jurisdiction under O. 39, R. 2A. The question whether an agent of the defendant can be proceeded against in a proceeding under 0. 39, R. 2A of the Code as amended by 1976 Act, the Patna High Court in MANU/BH/0067/1983 Ram Pd. Singh v. Subodh Pd. Singh has held that a person is liable to be proceeded against under O. 39, R. 2A of the Code even if he was not presently party to the suit provided he is shown to be the agent or servant of the defendant and to have violated the orders of the Court in spite of knowledge that there was such an order. The respondent No. 3 is the husband of the owner of the premises. The architect stated on affidavit that the apertures were closed at the instance of the respondent No. 3. It is wholly immaterial whether the respondent was personally present at the time of actual closing of the outlets or not and whether he was a party in the suit or not.

IN THE HIGH COURT OF ALLAHABAD

Civil Misc. Writ Petition No. 19415 of 1988

Decided On: 13.07.1992

 K.L. Virmani  Vs.  IIIrd Additional Dist. Judge, and others

Hon'ble Judges/Coram:
N.L. Ganguly, J.
 Citation : AIR 1992 All 326

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When property attached for breach of injunction order should not be sold?

The only question, which arises for consideration in this revision is whether on the facts and circumstances of this case, the attached property could be ordered to be sold. This Court has deleted Sub-rules (3) and (4) of Rule 2 of Order XXXIX and has added the following Rule 2-A:--

"2-A (1) In the case of disobedience to an injunction issued under Rule 1 or Rule 2, Sub-rule (2) or of breach of any terms of any such injunction the Court, in which the suit is proceeding 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 six months unless in the meantime the court directs his release.
(2) No attachment 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 and shall pay the balance, if any to the party entitled thereto."

The order of attachment of the applicants' property was passed under Sub-rule (1) of Rule 2-A. The attached property can be sold under Sub-rule (2) only if the disobedience or breach of the injunction order continues at the end of the period of attachment. The trial court held that no further breach or disobedience of the injunction order was committed by the applicants after the attachment started and therefore, it could not be said that the disobedience or breach continued till the expiry of the period of attachment. It further held that there was no direction by the court that the earth removed was to be restored and the pits were to be filled up and, therefore, the failure of the applicants to do so could not amount to continuance of the breach of the injunction order. The appellate court has taken the view that it was immaterial whether any fresh breach of the injunction order was committed or not. It has held that since the applicants had committed the breach of the injunction order by removing the earth after digging pits in the land, the breach of the injunction order would continue until the act of digging pits and removing the earth was undone by filling up the pits with earth.

6. There can be a third class of cases where the injunction order remains capable of being obeyed after the first breach or disobedience which led to the attachment and the defendant obeys the order and does not commit any further breach. In this case, the attached property cannot be sold. In my opinion, the present case falls in the third category of cases referred to above. The order of injunction passed by the trial court restrained the applicants from removing earth from certain plots. The applicants disobeyed the order and removed some earth from some of the plots. But they did not remove all earth from all the plots and, therefore, it cannot be said that they made it impossible for themselves to obey the order of injunction after the first breach. In fact after the property was attached the applicants could if they decided to continue to disobey the order of injunction, have removed further earth from the plots. It thus appears that the order of injunction was still capable of being obeyed after the attachment of the applicants' property and that the applicants did obey the order. It, therefore, cannot be said that the disobedience or breach continued till the end of the period of attachment. That being so the present case did not fall within the mischief of Sub-rule (2) of Rule 2-A of Order XXXIX and the attached property could not be ordered to be sold.

IN THE HIGH COURT OF ALLAHABAD

Civil Revn. No. 323 of 1972

Decided On: 04.04.1974

Uttam Bhatia Co. Vs.  Babu Ram and Anr.

Hon'ble Judges/Coram:
Gyan Chand Mathur, J.
 Citation : AIR 1974 All 454

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What are important principles relating disobedience of order of court?

Few facets of relevant considerations when breach of order is alleged and facet of defence available would emerge as under from above case law.

"(1) In the context of breach of order, the order can be void or nullity but, the consequences flowing from its non-compliance or breach cannot be avoided by the party by advancing the plea that such order is void or nullity.
(2) Void order has to be so declared. The party '... has to approach the Court for seeking such declaration...'

(3) The reason for requirement of nullity order to be challenged is, the Court may refuse to quash such order at the instance of the person who has challenged it or on the ground of delay or waiver or any such legal ground. Further, such void order may be void for one person and it may not be so far as another person is concerned.

(4) If breach of permanent injunction (O. 21 R, 32) vis-à-vis breach of interim injunction (O. 39 R. 2(a)) are compared, subsequent enforcement of decree in the former case and subsequent setting aside of the interim order in a later case insofar as the consequences flowing from these two situations are concerned, - would be different in the sense that in former case, it may happen that no further consequence would ensue but in later case the effect of breach would not be erased.

(5) In case when objection to the jurisdiction of the Court is raised and later on it is upheld even then, interim order passed therein by the Court does not become vulnerable or bad only on that ground.

(6) In case where objection is raised, it would be more proper if the objection of the jurisdiction is decided first. But if the Court happens to pass the order before deciding that, the prior interim order would not loose its efficacy only on that ground.

(7) The party cannot avoid consequence flowing or breach merely because the order is subsequently vacated in appeal.

(8) Generally speaking, punishment would differ from case to case. For instance, in case of solitary breach attachment of property may not be restored to. The Court may direct to detain the guilty person in civil prison or commit him for contempt.

(9) The Court's action for breach would extend also to the person who is not party to the proceedings.

(10) It is not rule of law that unless the contemner purges the contempt, the contemner cannot be heard. It is only rule of practice. In fact, it depends upon the facts and circumstances of case.

(11) In order to decide whether the contemner should be heard or not, the Court would consider how interest of justice would be better served and also the nature of breach i.e. whether it is gross or not etc."

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

Civil Application (for Direction) No. 6510 of 2015 in Civil Application No. 4112 of 2015 in Appeal From Order No. 8 of 2012

Decided On: 16.03.2016

 Velbai Vs. Natha Harji Halai and Ors.

Coram:R.D. Kothari, J.

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Whether a party can be held guity for disobedience of void order?

 Mr. C.A. Sundaram, Senior Advocate, endeavoured to repudiate the
submissions advanced at the hands of learned counsel for the appellants,
by advancing three contentions. Firstly, an order passed by a Court with
jurisdiction having attained finality, was binding between the concerned
parties, and was liable to be complied with under all circumstances. In
reference to the instant submission, the assertion of learned counsel was,
that the order dated 10.3.2000 passed by the High Court at Madras had
been passed by a Court having jurisdiction. The said order had attained
finality. And accordingly, there was no justification at the hands of any

other party concerned, to wriggle out of the same. Secondly, even if an
order is passed by a Court which has no jurisdiction with reference to a
controversy, and as such, could be termed as a void order, the order of the
Court would continue to remain enforceable in law, till the same is set aside
and/or vacated by a subsequent order. Insofar as the instant aspect of the
matter is concerned, it was submitted, that the order dated 10.3.2000
having attained finality and having not been varied or vacated, was binding
between the parties, and as such, its compliance was mandatory. 

In our determination
hereinabove, we have not held, that a void order can be legitimized. What
we have concluded in the foregoing paragraph is, that while an order passed
by a Court subsists, the same is liable to be complied with, till it is set

aside.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 6042-6048 OF 2011

Anita International  Vs  Tungabadra Sugar Works Mazdoor Sangh 
and others
Citation:(2016) 9 SCC 44

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Principles to be followed by court for striking off defence for disobedience of order of court

The provisions of Order 39 Rule 11(2) of the Civil Procedure Code,
would also have to be taken note of which clearly provides that when sufficient
cause is shown, the Court may hear the parties in defence upon such terms as it
deems fir. The provisions under Order 39 Rule 11(1) of the Civil Procedure Code

are directory in nature. In this connection, the Judgment passed by this Court in
Writ Petition no. 381 of 2013 along with Appeal From Order Nos. 40 of 2013 and
other connected Appeals dated 03.07.2014, in the case of M/s. V. G. Quenim &
Ors. vs Bandekar Brothers Pvt. Ltd. & Ors., at Paras 16, 17, 19 and 20 would be
material which read thus :
“16. On plain reading of sub-section (2) of Order 39
Rule 11 of Civil Procedure Code, I find that in case the
party who has been responsible for the default or
contravention, makes amends for such default or
contravention to the satisfaction of the Court and
shows sufficient cause, the Court may hear the parties
in defence upon such terms as it deems fit. In the
present case, taking note of the fact that it is not in
dispute that the value of the re-constructed bungalow
would exceed the total claim of the Plaintiffs in the said
suits, the breach or contravention, if any, by the
defendants can be said to have been amended.
These aspects have not been considered by the
learned Judge whilst passing the impugned Order. No
doubt, the conduct of the Plaintiffs to demolish the
bungalow without taking any permission from the
Court nor informing the Court to that effect is
deplorable. The defendants ought to have taken
necessary precautions to see that they had taken
appropriate permission from the Court before
embarking into the exercise of demolishing the
construction. In fact the Judgments relied upon by the
learned Counsel appearing for the Plaintiffs clearly
suggests that it is not open to a party to make its own
interpretation of the order to defeat such orders. In the
present case, the defendants are not at all justified to

demolish the construction without informing the Court
what further course of action they wanted to follow
after such demolition. In such circumstances, the
apprehension of the Plaintiffs that the defendants
wanted to breach the orders of temporary injunction
and the undertaking, were well founded. But,
however, in order to suffice the consequences
provided in Order 39 Rule 11 as well as Order 39 Rule
2-A of the Civil Procedure Code there should be willful
disobedience of such orders and the party should
persist in committing such contempt. In the present
case, in the reply filed to the application, the defendant
offered to give a Bank Guarantee covering the value of
the said bungalow. Apart from that, they have clearly
stated that they had no intention not to comply with the
Orders passed by the Court. In this connection, there
is also an apology given by the Defendants. In such
circumstances, considering that the Defendants made
amends to the contravention or the default of the
undertaking, I find that the learned Judge was not
justified to strike off the defence of the defendants and
dismiss the counter claim filed by the Defendants. No
doubt, exercise of such powers under Order 39 Rule
11(2) of the Civil Procedure Code, would have to be
upon terms deemed fit. The terms to be imposed
would be dealt with whilst dealing with the challenge to
the Orders under Order 39 Rule 2-A of the Civil
Procedure Code.
17. The Division Bench of this Court in the
Judgment reported in 2004(1) ALL M. R. 822, in the
case of Ramavatar Surajmak Modi vs. Mulchand

Surajmal Modi, has observed at Para 7 thus :
“7. Rule 11 of Order 39 as introduced
by the Bombay amendment provides for
a procedure on parties defying orders of
the Court and/or committing breach of
any undertaking to the Court. We are
concerned with the question whether
sub-rule (1) of Rule 11, Order 39 leaves
no discretion on the Court and that it
obliges the Court to visit the defaulting
party with the penalty prescribed therein
irrespective of the circumstances that
default is not willful or the conduct of the
party responsible for the default is not
contumacious or there is reasonable
explanation for default. The meaning
and intention of the rule making authority
must govern, and these are to be
ascertained not only from the
phraseology of the provision but also by
considering its nature, its design, and
the consequences which would follow
from construing it the one way or the
other. Inter alia the courts have applied
the test whether the object of the
provision will be defeated or furthered by
holding the provision mandatory or
directory. Let us not forget that the
dismissal of suit or proceeding or striking
out the defence of a defendant for noncompliance
of the Courts order or

breach of an undertaking is serious and
grave consequence. By making
provision of serious penalty of dismissal
of suit or striking out the defence against
the party responsible for default, the rule
making authority did not intend to leave
no discretion to the Court. The object of
the provision of Order 39, Rule 11(1) is
not defeated if it is held to be directory
as the Court can in its discretion for
adequate reasons visit the defaulting
party with the penalty envisaged therein.
On the other hand if the provision is held
mandatory, the Court "shall" be left with
no discretion and peremptorily shall
have to dismiss the suit where the
plaintiff is responsible for the default or
to strike off the defence when the
defendant is guilty of default even
though the default is not found willful or
conduct of such party not obstinate or
contumacious. In our considered view,
the provision in sub-rule (1) merely vests
power in the Court to dismiss the suit or
proceeding where the default is by the
plaintiff and strike off the defence of the
defendant where the defaulter is the
defendant. It does not obligate to do so
in every case of default. This is further
fortified by the provision contained in
sub-rule (2) which gives a discretion to
the Court that even after the order

contemplated under the sub-rule (1) of
Rule 11 has been passed, upon
sufficient cause being shown by the
party responsible for the default or
contravention or breach and such party
makes amend for the default or
contravention or breach to the
satisfaction of the Court, the Court may
restore the suit or hear the defence on
such terms and conditions it deems fit. If
the Court has power to restore the party
to the same position even after the
adverse order has been passed under
sub-rule (1) of Rule 11 if the case is
made out under sub-rule (2), the
provision of sub-rule (1) has to be held
to be directory and not imperative. The
provision in the nature of sub-rule (2)
leaves no manner of doubt the intention
of the rule making authority that the
provision of sub-rule (1) of Rule 11 is
directory and that by such provision
power has been vested in the Court to
dismiss the suit or proceeding where the
plaintiff is in default or striking off the
defence of the defendant, where
defendant is responsible for the default.
Unfortunately, neither in Ratnakar D.
Patade nor in Smt. Asha M. Joshi, the
learned Judges adverted to sub-rule (2)
of Rule 11 and its effect. The Supreme
Court in (M/s. Babbar Sewing Machine

Co. v. Tirlok Nath Mahajan)6, A.I.R. 1978
S.C. 1436 held that the power of
dismissal of suit or striking out of the
defence under Order 11, Rule 21 of the
Code of Civil Procedure should be
exercised only where the defaulting
party fails to attend the hearing or is
guilty of prolonged or inordinate and
inexcusable delay which may cause
substantial or serious prejudice to the
opposite party. It was further observed
that an order striking out the defence
under Order 1, Rule 21 should be made
unless there has been obstinacy or
contumacy on the part of the defendant
or willful attempt to disregard the order
of the Court to produce the
documents.....

IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NOS. 279, 362 AND 626 OF 2006
WRIT PETITION NO. 279 OF 2006

Sachin Y.Mense, V  Shri Sunil Noronha,

 Coram :- F. M. REIS, J

 Dated  : 16th January, 2015.
Citation:2016(5) ALLMR 146

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Whether assignee can claim impleadment in suit for partition if property was assigned contrary to order of court?

As said before, the assignment is by means of a registered deed. The assignment had taken place after the passing of the preliminary decree in which Pritam Singh has been allotted 1/3rd share. His right to property to that extent stood established. A decree relating to immovable property worth more than hundred rupees, if being assigned, was required to be registered. That has instantly been done. It is per se property, for it relates to the immovable property involved in the suit. It clearly and squarely fell within the ambit of the restraint order. In sum, it did not make any appreciable difference whether property per se had been alienated or a decree pertaining to that property. In defiance of the restraint order, the alienation/assignment was made. If we were to let it go as such, it would defeat the ends of justice and the prelavent public policy, When the Court intends a particular state of affairs to exist while it is in seizin of a lis, that state of affairs is not only required to be maintained, but it is presumed to exist till the Court orders otherwise. The Court, in these circumstances has the duty, as also the right, to treat the alienation/assignment as having not taken place at all for its purposes. Once that is so, Pritam Singh and his assignees, respondents herein, cannot claim to be impleaded as parties on the basis of assignment. Therefore, the assignees-respondents could not have been impleaded by the trial court as parties to the suit, in disobedience of its orders. The principles of lis pendens are altogether on a different footing. We do not propose to examine their involvement presently. All what is emphasised is that the assignees in the present facts and circumstances had no cause to be impleaded as parties to the suit. On that basis, there was no cause for going into the question of interpretation of paragraphs 13 and 14 of the settlement deed. The path treaded by the courts below was, in our view, out of their bounds. Unhesitatingly, we upset all the three orders of the courts below and reject the application of the assignees for impleadment under Order 22 Rule 10 C.P.C.

Supreme Court of India

Surjit Singh & Ors. Etc. Etc vs Harbans Singh & Ors. Etc. Etc on 6 September, 1995

Equivalent citations: 1996 AIR 135, 1995 SCC (6) 50

           
BENCH:
PUNCHHI, M.M.
MANOHAR SUJATA V. (J)

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Whether any person can disobey order passed by court on ground that it was void?

The question is whether pending the decision in

respect of objection to the jurisdiction, no person can be

punished for flouting or disobeying the interim/interlocutory

orders while they were in force i.e for violations and

disobedience committed prior to the decision on the question

of jurisdiction ?

Held :- The nature and effect of an alienation made in

violation of an order of injunction was considered in

Tayabbhai M. Bagasarwalla v. Hind Rubber Industries (P)

Ltd.,(1997)3 SCC443 and the following propositions were laid

down:

Section 9-A(1) CPC says that if an objection is

raised to the jurisdiction of the court at the hearing of an

application for grant of, or for vacating, interim relief, the 10

court should determine that issue in the first instance as a

preliminary issue before granting or setting aside the relief

already granted. An application raising objection to the

jurisdiction to the court is directed to be heard with all

expedition. Sub-section (2), however, says that the command

in sub-section (1) does not preclude the court from granting

such interim relief as it may consider necessary pending the

decision on the question of jurisdiction. The provision merely

states the obvious. It makes explicit what is implicit in law.

Just because an objection to the jurisdiction is raised, the

court does not become helpless forthwith-nor does it become

incompetent to grant the interim relief. It can. At the same

time, it should also decide the objection to jurisdiction at the

earliest possible moment. This is the general principle and

this is what Section 9-A reiterates. For ex., the plaintiff asked

for 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, the

High Court has found that the civil court had no jurisdiction

to entertain the suit but all this took about six years. Can it be

said that orders passed by the civil court and the High Court

during this period of six years were all non est and that it is

open to the defendants to flout them merrily, without fear of 

any consequence. Admittedly, this could not be done until the

High Court's decision on the question of jurisdiction. The

question is whether the said decision of the High Court

means that no person can be punished for flouting or

disobeying the interim/interlocutory orders while they were in

force i.e for violations and disobedience committed prior to

the decision of the High Court on the question of

jurisdiction ? 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 the rule of law and

would seriously erode the dignity and the authority of the

courts. We must repeat that this is not even a case where a

suit was filed in the wrong court knowingly or only with a

view to snatch an interim order. As pointed out hereinabove,

the suit was filed in the civil court bona fide. We are of the

opinion that 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.

 Learned senior counsel for the

respondents, placed reliance on Krishnadevi Malchand Kamathia v. Bombay

Environmental Action Group (2011) 3 SCC 363,

 and placed reliance on the following

conclusions drawn therein:

“16. It is a settled legal proposition that even if an order is void, it

requires to be so declared by a competent forum and it is not

permissible for any person to ignore the same merely because in his

opinion the order is void.

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 6042-6048 OF 2011

Anita International Vs Tungabadra Sugar Works Mazdoor Sangh –

and others 

Dated:July 04, 2016.

Citation:2016 SCC OnLine SC 655,

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Whether violation of interim orders passed by court is not punishable if it is subsequently found that court had no jurisdiction to entertain suit?

The next thing to be noticed is that certain interim orders were asked for and were granted by the Civil Court during this period. Would it be right to say that violation of and disobedience to the said orders of injunction is not punishable because it has been found later that the Civil Court had not jurisdiction to entertain the suit. Mr. Sorabjee suggests that saying so would be subversive of the Rule of Law and would seriously erode the majesty and dignity of the courts. It would mean, suggests learned Counsel, that it would be open to the defendants-respondents to decide for themselves whether the order was with or without jurisdiction and act upon that belief. This can never be, says the learned Counsel. He further suggests that if any party thinks that an order made by the Civil Court is without jurisdiction or is contrary to law, the appropriate course open to him is to approach that court with that plea and ask for vacating the order. But it is not open to him to flout the said order assuming that the order is without jurisdiction. It is this principle which has been recognised and incorporated in Section 9-A of Civil Procedure Code (inserted by Maharashtra Amendment Act No. 65 of 1977), says Mr. Sorabjee. Section 9-A reads as follows:

9-A. Where by an application for interim relief is sought or is sought to be set aside in any suit and objection to jurisdiction is taken, such issue to be decided by the Court as preliminary issue at hearing of the application.
(1) If, at the hearing of any application for granting or setting aside an order granting any interim relief, whether by way of injunction, appointment of a receiver or otherwise, made in any suit, an objection for the jurisdiction of the Court to entertain such suit is taken by any of the parties to the suit, the Court shall proceed to determine at the hearing of such application the issue as to the jurisdiction as a preliminary issue before granting or setting aside the order granting the interim relief. Any such application shall be heard and disposed of by the Court as expeditiously as possible and shall not in any case be adjourned to the hearing of the suit.
(2) Notwithstanding anything contained in Sub-section (1), at the hearing of any such application, the Court may grant such interim relief as if may consider necessary pending determination by it of the preliminary issue to the jurisdiction.

16. According to this section, if an objection is raised to the jurisdiction of the court at the hearing of an application for grant of, or for vacating, interim relief, the court should determine that issue in the first instance as a preliminary issue before granting or setting aside the relief already granted. An application raising objection to the jurisdiction to the court is directed to be heard with all expedition. Sub-rule (2), however, says that the command in Sub-rule (1) does not preclude the court from granting such interim relief as it may consider necessary pending the decision on the question of jurisdiction. In our opinion, the provision merely states the obvious. It makes explicit what is implicit in law. Just because an objection to the jurisdiction is raised, the court does not become helpless forthwith - nor does it become incompetent to grant the interim relief. It can. At the same time, it should also decide the objection to jurisdiction at the earlier possible moment. This is the general principle and this is what Section 9-A reiterates. 

Whether person who disobeys interim injunction made by Civil Court can be punished under Order 39 Rule 2-A where it is ultimately found that Civil Court had no jurisdiction to entertain and try suit - mere objection to jurisdiction does not instantly disable Court from passing interim Orders - interim Orders comes to end when it is found that Court had no jurisdiction - violation of interim Order can be punished even after question of jurisdiction was decided against plaintiff provided violation is committed before decision of Court on question of jurisdiction.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 16662-66 of 1996

Decided On: 19.02.1997

Tayabbhai M. Bagasarwalla and another  Vs. Hind Rubber Industries Pvt. Ltd. etc.

Hon'ble Judges/Coram:
B.P. Jeevan Reddy and S.C. Sen. JJ.

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