Whether application for breach of injunction is maintainable in disposed off suit?

 For the sake of convenience. I, shall first proceed to examine the matter in issue in the Notice of Motion No. 4572 of 1995 (A.O. No. 1256/1995). By this notice of motion the respondent-Shri Marathe wanted appropriate action to be initiated against the appellants in A.O. No. 1256/1995 on the ground that they have violated the terms of the order and decree passed by the City of Civil Court dated April 6, 1994. I have already adverted to all the reliefs claimed in the said Notice of Motion. The moot question that arises for consideration is, whether the said application was maintainable in law? The trial Court has examined various facets of the arguments advanced before it without adverting to this crucial question which, in my view, goes to the root of the matter. Undoubtedly, the suit filed by the appellants in A.O. No. 1256 of 1995, being Suit No. 5935 of 1992, was compromised between the parties and the same was disposed of on April 6, 1994 on the basis of the compromise terms duly signed by the parties. The Court by that order has merely recorded the compromise and disposed of the suit on that basis. Undisputedly, this notice of motion has been filed under Order 39, Rule 2-A of the C.P.C. Unquestionably, Order 39 of C.P.C. essentially deals with matters of temporary injunctions and interlocutory orders to be passed by the Court. Power conferred under Rule 2-A is a part of the said scheme of provisions. It necessarily follows that application under Rule 2-A of Order 39 can be maintained only when the suit is pending and the disobedience/breach of any injunction granted or other order made complained of was one granted by the Court under Rule 1 or Rule 2 of that Order which was naturally to enure during the pendency of the suit or till the application under Rule 1 or 2, as the case may be. Undoubtedly, the order passed by the trial Court dated April 6, 1994 while disposing of the suit is neither an order under Rule 1 or Rule 2 of Order 39, but a decree passed in the suit on the basis of consent terms filed by the parties. In such a situation, the provisions of Rule 2-A will be inapplicable. It is well settled that the Court after passing decree becomes Functus Officio understood thus, the trial Court had no jurisdiction or authority to entertain the subject notice of motion purported to have been filed under Order 39, Rule 2-A, for the same was not maintainable.

IN THE HIGH COURT OF BOMBAY

Appeal From Order No. 1260 of 1995 with Civil Application No. 6599 of 2000 with Appeal From Order No. 1256 of 1995

Decided On: 01.10.2001

 Chembur Trombay Education Society  Vs.  D.K. Marathe and Ors.

Hon'ble Judges/Coram:

A.M. Khanwilkar, J.

Citation: 2002(3) Bom CR 161

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Supreme Court has deprecated practice of entertaining miscellaneous applications in disposed of writ petitions

Learned Counsel submitted that the practice of filing miscellaneous application in disposed of writ petitions are on the rise, in spite of the fact that this practice has been deprecated by this Court in various judgments. Reference was made to the judgment of this Court in Hari Singh Mann v. Harbhajan Singh Bajwa and Ors. MANU/SC/0665/2000 : (2001) 1 SCC 169. Learned Counsel further submitted that the High Court, by granting stay of arrest, is depriving the trial Courts of its power to issue orders under Section 439 Code of Criminal Procedure. Learned Counsel also submitted that the order of the High Court is also interfering with the powers of the Family Court in passing appropriate orders in the application filed under Section 125 Code of Criminal Procedure.

10. Shri Arvind Kumar, Learned Counsel appearing for the Respondent, submitted that the High Court has only granted stay of the arrest of 1st Respondent till the conclusion of the trial, consequently, no prejudice has been caused to the Appellant. Further, it was also pointed out that 1st Respondent is depositing the amount of Rs. 2,000/- per month in the Court of Chief Judicial Magistrate, Agra, as directed by the High Court and that Appellant has made an application for withdrawal of the said amount as well. Further, it was also stated that since the Appellant was not a party to the Criminal Writ Petition No. 5877 of 2003 as well as in Criminal Miscellaneous Application No. 133306 of 2004, this appeal preferred by the Appellant is not maintainable.

11. We are of the view that the High Court has committed a grave error in entertaining the criminal miscellaneous application No. 133306 of 2004 in a disposed of Criminal Writ Petition No. 5877 of 2003. Criminal Writ Petition No. 5877 of 2003 was disposed of on 25.9.2003 directing that the 1st Respondent should not be arrested until the conclusion of the investigation or submission of any report under Section 173 Code of Criminal Procedure. On an application filed by the 1st Respondent in that writ petition, the High Court later passed an order on 26.8.2004 stating that the Petitioner therein (1st Respondent) be not arrested until the conclusion of the trial. The practice of entertaining miscellaneous applications in disposed of writ petitions was deprecated by this Court in Hari Singh Mann (supra).

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1693 of 2012 (Arising out of SLP (Crl.) No. 2575 of 2010)

Decided On: 19.10.2012

Nazma Vs.  Javed

Hon'ble Judges/Coram:

K.S. Panicker Radhakrishnan and Dipak Misra, JJ.

Citation: 2013 (80) ACC 182 (SC)

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Whether inherent power U/S 482 of CRPC can be exercised to recall a matter which has been finally disposed of by court?

There is no power of review with the criminal court after the judgment has been rendered. The High Court can alter or review its judgment before it is signed. When an order is passed, it cannot be reviewed. Section 362 Cr.P.C is based on an acknowledged principle of law that once a matter is finally disposed of by a court, the said court in the absence of a specific statutory provision becomes functus officio and is dis-entitled to entertain a fresh prayer for any relief unless the former order of final disposal is set aside by a court of competent jurisdiction in a manner prescribed by law. The court becomes functus officio the moment the order for disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or arithmetical error. There is also no provision for modification of the judgment. ( Vide Hari singh Mann Vs. Harbhajan Singh Bajwa, 2001 (1) SCC 169).

Moreover the prohibition contained in Section 362 Cr.P.C is absolute; after the judgement is signed, even the High Court in exercise of its inherent power under Section 482 CrP.C has no authority or jurisdiction to alter/review the same ( vide Moti Lal Vs. State of M.P. (2012) 11 SCC 427).

If a judgement has been pronounced without jurisdiction or in violation of principle of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected by it or where an order was obtained by abuse of the process of court which would really amount to its being without jurisdiction, inherent powers can be exercised to recall such order for the reason that in such an eventuality the order becomes a nullity and the provisions ofSection 362 Cr.P.C would not operate. In such an eventuality, the judgment is manifestly contrary to the audi alteram partem rule of natural justice. The power of recall is different from the power of altering/reviewing the judgment. However, the party seeking recall/alteration has to establish that it was not at fault.( vide Chitawan Vs. Mahboob Ilahi, 1970 Cri. LJ 378( All), Asit Kumar Kar Vs. State of West Bengal (2009) 2 SCC 703 ).

Supreme Court by virtue of Article 137 of the Constitution has been invested with an express power to review any judgment in criminal law and while no such power has been conferred on the High Court, inherent power of the court cannot be exercised for doing that which is specifically prohibited by the Code itself ( Vide State Vs. K.v. Rajendran, 2008(8) SCC 673.

In Sooraj Devi Vs. Pyare Lal, 1981 (1) SCC 500, apex court held that the prohibition in Section 362 CrPC against the court altering or reviewing its judgment, is subject to what is "otherwise provided by this code or by any other law for the time being in force". These words, however, refer to those provisions only where the Court has been expressly authorized by the code or other law to alter or review its judgement. The inherent power of the court is not contemplated by the saving provision contained in Section 362 CrPC and, therefore, the attempt to invoke that power can be of no avail.

Thus, the law on the issue can be summarized to the effect that the criminal justice delivery system does not clothe the court to add or delete any words, except to correct the clerical or arithmetical error as specifically been provided under the statute itself after pronouncement of the judgment as the Judge becomes functus officio. Any mistake or glaring omission is left to be corrected only by the appropriate forum in accordance with law (Refer State of Punjab Vs. Davinder Pal singh Bhullar, (2011) 14 SCC 770).

The same principle is applicable while considering an application for recall /modification/review of an order passed under Section 482 Cr.P.C.

The inherent power under Section 482 Cr.PC is intended to prevent the abuse of the process of the court and to secure the ends of justice. Such power, cannot be exercised to do something which is expressly barred under the code. If any consideration of the facts by way of review is not permissible under the Code and is expressly barred, it is not for the court to exercise its inherent power to reconsider the matter and record a conflicting decision. If there had been change in the circumstances of the case, it would be in order for the High Court to exercise its inherent powers in the prevailing circumstances and pass appropriate orders to secure the ends of justice or to prevent the abuse of the process of the court. Where there are no such changed circumstances and the decision has to be arrived at on the facts that existed as on the date of the earlier order, the exercise of the power to reconsider the same materials to arrive at different conclusion is in effect a view which is expressly barred under Section 362 CrPC.

Allahabad High Court

Virendra Kumar Anand @ V.K. Anand vs State Of U.P. And 2 Others on 30 May, 2016

Bench: Suneet Kumar

Crl. Misc. Recall Application No. 126367 of 2016
 
IN
 
Case :- APPLICATION U/S 482 No. - 5938 of 2016
 

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What action court can take when there is breach of undertaking on the basis of which suit is disposed off?

 In KANWAR SINGH SAINI v. HIGH COURT OF

DELHI  the Supreme Court discussed categorically about the distinction between Order XXXIX Rule 2A and Order XXI Rule 32 CPC. It is held: "An application under Order XXXIX Rule 2A lies only where disobedience/breach of injunction granted or order complained of was one that is granted by the Court under Order XXXIX Rules 1 and 2 CPC, which is naturally to enure during the pendency of the suit. However, once a suit is decreed, the interim order, if any, merges into the final order and if the case is ultimately dismissed, the interim order stands nullified automatically. On the other hand in case there is a grievance of non-compliance with the terms of the decree passed in the civil suit, the remedy available to the aggrieved person is to approach the execution Court under Order XXI Rule 32 CPC which provides for elaborate proceedings in which the parties can adduce their evidence and can examine and cross-examine the witnesses as opposed to the proceedings in contempt which are summary in nature. An application under Order XXXIX Rule 2-A CPC is not maintainable once the suit is decreed. Law does not permit to skip the remedies available under order XXI Rule 32 CPC and resort to the contempt proceedings for the reason that the Court has to exercise its discretion under the Contempt of Courts Act, 1971 when an effective and alternative remedy is not available to the person concerned. Thus, when the matter relates to the infringement of a decree or decretal order embodies rights, as between the parties, it is not expedient to invoke and exercise contempt jurisdiction, in essence, as a mode of executing the decree or merely because other remedies may take time or are more circumlocutory in character. Thus, the violation of permanent injunction can be set right in executing the proceedings and not the contempt proceedings. There is a complete fallacy in the argument that the provisions of Order XXXIX Rule 2A CPC would also include the case of violation of breach of permanent injunction granted at the time of passing of the decree. It is also observed that in an undertaking given to the Court during the pendency of the suit on the basis of which the suit itself has been disposed of becomes a part of the decree and breach of such undertaking is to be dealt with in execution proceedings under Order XXI Rule 32 CPC and no by way of contempt proceedings."

Supreme Court of India

Kanwar Singh Saini vs High Court Of Delhi on 23 September, 2011

Bench: P. Sathasivam, B.S. Chauhan

REPORTABLE

 Citation: 2012(1)ACR1035(SC), 2012(2)ALD58(SC), 2012 (90) ALR 24, 2012(2)ALT(Cri)SC71, 2012BomCR(Cri)522, 2011 (4) KLT(SN) 32, 2012-1-LW689, (2012)2MLJ409(SC), 2012(1)PLJR241, 2011(4)RCR(Civil)402, 2011(4)RCR(Criminal)407, 2012 115 RD291, 2011(10)SCALE725, (2012)4SCC307, 2011(6)UJ4202

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