JUDGMENT
R.L. Khurana, J.
1. In Regular Second Appeal No. 72/2001 arising out of a suit between the parties for specific performance of an agreement to sell, this Court on 12-4-2001 in an application, being CMP No. 117 of 2001 made under Order 41, Rule 5 and Order 39, Rules 1 and 2, Code of Civil Procedure, by the appellant/petitioner, had passed an order in the following terms:–
“Reply is stated to have been filed with the Registry on 26th March, 2001. Office to place the same on the record, if in order. In the meanwhile, learned counsel for the respondents shall verify and in case the reply is lying under objection, to remove the same forthwith.
Heard. The operation of the impugned judgment and decree shall remain stayed pending the appeal and the parties are directed to maintain status quo qua the nature and possession of the land in dispute pending appeal. The application stands disposed of.
Dasti copy on usual terms.”
2. On 2-5-2001, the present petition was made the appellant/petitioner under Section 10 of the Contempt of Courts Act, 1971, for taking appropriate action against the respondents for having wilfully disobeyed the abovenoted order dated 12-4-2001. Claiming himself to be in possession of the land, subject matter of the dispute between the parties and in respect of which the suit for specific performance was filed by the respondents, the appellant/petitioner averred that after the passing of the abovenoted restraint order, the respondents accompanied by some ladies of the family after having made a forcible entry into the land, cut and removed the wheat crop sown therein by him. The total value of the crop alleged to have been forcibly cut and removed by the respondents has been assessed at Rs. 27,000/-. It was pleaded that the respondents had thus wilfully disobeyed the order dated 12-4-2001 of this Court and were, therefore, liable to be proceeded against for having committed civil contempt of this Court.
3. Though in the petition, it is nowhere pleaded as to when the act complained was committed by the respondents. Annexure P-2 annexed to the petition shows that such act was committed by the respondents on 22-4-2001. At the time of commission of the act complained of, respondent No. 1 Ram Nath, is alleged to be armed with a gun.
4. The respondents in their reply to the show cause notice, asserted their possession over the land in question. They pleaded that in pursuance of the agreement to sell, they were placed in possession of such land and since after the agreement, the land was being cultivated by them. An objection as to maintainability of the present petition was raised on the ground that an application on similar facts was made by the appellant/ petitioner under Rule 2A of Order 39, Code of Civil Procedure, in the appeal and such application was dismissed on 12-12-2001.
5. There is no denying that an application being CMP No. 301 of 2001 was made by the appellant/petitioner in the second appeal in which the interim order dated 12-4-2001 was passed. Such application was made on the same facts as mentioned in the present petition. The application was made under Section 151, Code of Civil Procedure, and not specifically under Rule 2A, Order 39, Code of Civil Procedure. No prayer was made for taking action against the respondents for having disobeyed and infringed the order dated 12-4-2001. A relief was claimed to direct the respondents to restore the crop forcibly cut and removed by them and in the alternative directing them to pay the cost of such crop amounting to Rs. 27,000/- to the appellant/petitioner. The application was dismissed by this Court on 12-12-2001. It was observed as under :–
“It may be stated that the defendant/appellant has not prayed for an action against the plaintiffs/respondents for disobedience or violation of the interim order dated 12-4-2001 as contemplated under Rule 2A of Order 39, Code of Civil Procedure. He has rather sought the recovery of Rs. 27,000/-as cost of the wheat crop alleged to have been forcibly cut and removed by the plaintiffs/ respondents. Such a relief cannot be possibly granted under Section 151, Code of Civil Procedure.
6. While dismissing the application, it was also clarified that the dismissal of the application would not preclude the defendant/appellant to recover the amount as cost of the crop alleged to have been forcibly cut and removed by the plaintiffs/respondents by way of a suit or any other mode as may be available to him under the law.
7. In view of the fact situation the present petition cannot be held to be not maintainable as contended by the learned counsel for the respondents.
8. It was next contended by the learned counsel for the respondents that the present petition made under Section 10, Contempt of Courts Act, is not competent since there is no disobedience or violation of any order of a subordinate Court. The disobedience or violation is alleged to be of an order passed by this Court on 12-4-2001.
9. No doubt the petition is shown to have been made under Section 10, Contempt of Courts Act and the disobedience and violation is alleged to be of an order of this Court, it is well settled that no petition can be thrown out merely on account of and for reason of mentioning a wrong provision.
10. The exercise of power under the Contempt of Courts Act is discretionary and is to be sparingly exercised. Generally, law of Contempt of Court should not be invoked in cases of disobedience of the order of injunction since special provision and procedure therefor are contained under Rule 2A of the Code of Civil Procedure, itself.
11. In Dr. Bimal Chandra Sen v. Mrs. Kamla Mathur, 1983 Cri LJ 495, it has been held by a Division Bench of the Delhi High Court that jurisdiction to punish for disobedience of the injunction order granted under Order 39, Rules 1 and 2, Code of Civil Procedure, vests in the Court which granted the injunction. The disobedience of injunction is a civil contempt strictly speaking, it does not fall within Section 2(b) of the Contempt of Courts Act. It is specifically dealt with and provided for in Rule 2-A of Order 39, Code of Civil Procedure. Section 2(b), Contempt of Courts Act, which defines Civil Contempt, does not deal with the case of disobedience of temporary injunction because that subject is specially dealt with in Order 39, Code of Civil Procedure.
12. Similarly, a Division Bench of the Calcutta High Court in Samir Kumar Sarkar v. Maharaj Singh, 1983 Cri LJ (NOC) 1, has held that in cases of disobedience or breach of injunction order issued temporarily during pendency of the suit either under Rule 1 or Rule 2 of Order 39, Code of Civil Procedure, it is inexpedient to invoke and exercise contempt jurisdiction. In such cases, action is contemplated by the Court which issued the injunction under Rule 2A of Order 39, Code of Civil Procedure. It was further held that it is well settled principle of law that when there is a special law and general law, the provisions of special law prevail over general law and since special provisions and procedure are contained in Code of Civil Procedure itself under Rule 2A of Order 39, Code of Civil Procedure, for taking action for the disobedience of an order of injunction, the general law of Contempt of Court cannot be invoked.
13. To the same and similar effect is the view of a Division Bench of the Karnataka High Court in Rudraiah v. State of Karnataka, AIR 1982 Kant 182.
14. In Smt. Indu Tewari v. Ram Bahadur Chaudhari, AIR 1981 Allahabad 309, a learned single Judge has held that a person who has got an effective alternative remedy of the nature specified under Order 39, Rule 2A or under Order 21, Rule 32, Code of Civil Procedure, should not be permitted to skip over that remedy and take resort to initiate proceedings under the Contempt of Courts Act. It would not be a proper exercise of discretion on the part of the High Court to exercise its jurisdiction under the Contempt of Courts Act when such an effective and alternative remedy is available to any person.
15. It may be noticed that vide interim order dated 12-4-2001, the parties were directed to maintain status quo qua the nature and possession of the land in dispute. None of the parties was held/found to be in possession of the land in dispute. Both the parties are asserting their respective possession. The question whether the petitioner is in possession and whether there has been violation, breach or disobedience of the interim order dated 12-4-2001 cannot be gone into without affording the parties an opportunity to lead evidence. The question would involve a detail and thorough inquiry which can be more conveniently gone into in the proceedings under Order 39, Rule 2-A, Code of Civil Procedure.
16. In the present case the petitioner, who had the alternative remedy under Rule 2-A, of Order 39, Code of Civil Procedure, failed to avail such remedy. No reasons are forthcoming as to why he did not avail of such alternative remedy. Therefore, following the ratio and principle laid down in the above referred cases, with which, I am in full agreement, it is held that the exercise of discretionary powers under the Contempt of Courts Act, is not called for in the present case.
17. Resultantly, the present petition is dismissed.