C.R.No.3445 of 2009 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
C.R.No.3445 of 2009
Date of Decision : 05.10.2009
Prem Singh ...Petitioner
Versus
Darbara Singh and others ...Respondents
CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA
Present: Ms. G.K.Dulat, Advocate,
for the petitioner.
HEMANT GUPTA, J. (ORAL)
Challenge in the present revision petition is to the order passed
by the Courts below on an application under Order 39 Rule 2 A of the
Code of Civil Procedure.
The plaintiff-petitioner filed a suit for permanent injunction
alongwith an application for grant of ad interim injunction. On such
application, defendant No.1 suffered the following statement on
13.11.2001 :
“The defendant refused to accept service of summons.
However, Sh. G.S.Dhaliwal, Advocate, filed power of attorney
on behalf of the defendant. Adjournment requested for filing
written statement and reply to stay application. The plaintiff
counsel submits that defendant is bent upon to demolish the
wall forcibly. Defendant is present and stated at bar that he
will not demolish the said wall. In view of which, case is
adjourned to 22.11.2001 for filing written statement and reply
to the stay application.”
The defendant filed written statement on 22.11.2001, but on the
C.R.No.3445 of 2009 2
aforesaid date no interim order was granted, but on 24.11.2001 at about
6.00 PM as per the plaintiff, defendant demolished the wall. Since, the
defendant demolished the wall allegedly in violation of the statement
given in the Court on 13.11.2001, the petitioner filed an application under
Order 39 Rule 2 A of the Code of Civil Procedure, which has been
dismissed by the Courts below, primarily for the reason that the statement
of the defendant that the wall shall not be demolished was valid till
22.11.2001, whereas the wall is allegedly demolished on 24.11.2001,
when there was no injunction, therefore, no order is required in terms of
Order 39 Rule 2 A of the CPC.
Learned counsel for the petitioner has admitted during the
course of hearing that the suit in which such statement was made stands
dismissed. In view of this fact, two questions arise for consideration :
(i)Whether the statement of the defendant on 13.11.2001 was
operative and valid on 24.11.2001?
(ii)Whether the application under Order 39 Rule 2 A of the
Code of Civil Procedure would be maintainable after the suit
has been decided and when the interim order granted during
the pendency of the proceedings stands merged with the final
order?
Both the Courts have taken a view that the statement of the
defendant not to demolish the wall was operative till 22.11.2001. The
statement, as reproduced above, does not specifically say so. However,
the Court has granted time for filing of the written statement and reply to
the stay application. It was, thus, for the interregnum period that
defendant made a statement that he shall not demolish the wall.
Therefore, the view taken by the Courts below that the statement of the
C.R.No.3445 of 2009 3
defendant that he shall not demolish the wall was valid till 22.11.2001, is
a possible view. Therefore, I do not find any illegality in the view taken
by the Courts below.
However, in respect of the second question, the matter was
directly to an issue in a judgment reported as Darshan Singh Vs. Sadha
Singh and others 2002(2) PLR 680, wherein it has been held that after
the suit has been decided, the proceedings under Order 39 Rule 2 A of the
Code of Civil Procedure are not maintainable.
The Division Bench of this Court in Rachhpal Singh Vs.
Gurdarshan Singh AIR 1985 Punjab and Haryana 299 has held that
proceedings under Order 39 Rule 2 A of the Code of Civil Procedure are
to seek compliance of the ad interim order as it is evident from the
reading of the provisions of Order 39 Rule 2 A of the CPC as the
detention is for the period till such time the injunction order is complied
with. Once the injunction order is complied with the defaulter cannot be
detained in civil prison. It was held to the following effect :
“From the combined reading of the provisions of these two sub-
rules, it appears that their purpose if the enforcement of the
injunction and not the punishment for its disobedience. From
the phraseology used in the said rule, it is further evident that
detention in the civil prison and attachment of the property are
to continue for a specified period and that too only during the
continuance of the disobedience of the breach. In the case of
detention in the civil prison, the court is empowered to release
the person guilty of discobedience or breach even prior to the
expirty of the maximum period of three months and obviously
it can be ordered only if the disobedience or breach
discontinues. Similarly, attachment of the property cannot
remain in force for more than one year and has to be withdrawn
C.R.No.3445 of 2009 4if any time prior thereto the disobedience discontinues. It
would not be possible for the court to order the sale of property
if the disobedience or breach comes to an end prior to the
period of one year. Similar are the provisions contained in
R.32 of O.21 which relates to the enforcement of a decree for
permanent injunction. It cannot be disputed that the measures
contained in Rule 32 are intended only to enforce the decree
and not for awarding any punishment to the judgment-debtor
for its disobdeience. The conclusion, therefore, appears to be
irresistible that the provisions of Rule 2-A are meant for
enforcing an ad interim injunction and not for punishing the
person guilty of such disobedience.”
In view of the aforesaid judgment, the purpose of introduction
of provisions of Order 39 Rule 2 A of the Code of Civil Procedure is to
provide a mechanism to seek compliance of the orders passed by the Civil
Court. It is not the proceedings for Contempt of Court governed by the
provisions of Contempt of Courts Act, 1971.
Learned counsel for the petitioner has relied upon a judgment
of this Court in Smt. Rajinder Kaur Vs. Sukhbir Singh 2002(1) Civil
Court Cases 125, to contend that the proceedings under Order 39 Rule 2
A do not come to an end with the decision of the suit. Though the
judgment of the Division Bench of this Court in Rachhpal Singh’s case
(supra) was noticed in Smt. Rajinder Kaur’s case (supra) and it was
noticed that the appliction under order 39 Rule 2 A is not maintainable
after the interim order stands vacated. But it was found that the
proceedings for Contempt of Court can still be initiated.
Present is not a case for Contempt of Court proceedings. The
jurisdiction under Contempt of Courts Act, 1971 vests with this Court
and not with the Civil Judge. Therefore, the application under Order 39
C.R.No.3445 of 2009 5
Rule 2 A could not have been entertained by the learned trial Court after
the suit was dismissed. Though in appropriate cases, the jurisdiction of
this Court under the Contempt of Courts Act, 1971 could be invoked.
In view of the above, I do not find any patent illegality or
irregularity in the order passed by the Courts below, which may warrant
interference by this Court in the present revision petition.
Dismissed.
05.10.2009 (HEMANT GUPTA) Vimal JUDGE