JUDGMENT
Birendra Prasad Sinha, J.
1. This is an appeal against the order passed by the lower Court in an application under Order 39, Rule 2 (3), of the Code of
Civil Procedure, by the plaintiff.
2. The plaintiff-appellant instituted a title suit No. 177 of 1972 for a declaration that the deed of gift dated the 17th March, 1972, alleged to have been executed by one Ayodhya Singh in favour of the defendant-respondent, was illegal, invalid and ineffective. Subsequently, an application was made for an injunction restraining the defendant-respondent from executing any sale deed with respect to the property hi suit. This application seems to have been filed on 23-6-72 in which a prayer for ad interim injunction was also made. It was ordered to be placed on the 29th of June, 1972. On the 29th of June, 1972, ad interim injunction prayed for was issued asking the defendant to show cause within a week as to why the same should not be made absolute. The next date fixed was 25-7-72. On the 1st of July, 1972, notice etc., were filed. It appears that on 19-7-72 the defendant-respondent appeared through his lawyer and prayed for time to file his written statement and show cause. He was ordered to do so by 25-7-72. On 25-7-72, the defendant-respondent filed an application for time praying to hear the application regarding ad interim injunction on the 28th July, 1972. In the meanwhile, it appears that on the 27th July, 1972, the defendant-respondent executed a sale deed in favour of one Saligram Mahton in respect of some of the properties in suit. It was thereafter that an application under Order 39, Rule 2 (3), Code of Civil Procedure, was filed by the plaintiff stating, inter alia, that even in spite of the service of notice to show cause, and having full knowledge of the order of ad interim injunction, the defendant-respondent had executed a sale deed and had thus violated the order of the Court and should be penalised for the same. The said application was numbered as Miscellaneous Case 16 of 1972 and was opposed by the defendant-respondent on the ground that there was fraudulent suppres-
sion of the notice to show cause and the report with respect to the service of notice was incorrect. It was contended that the defendant-respondent had never violated the order for injunction knowingly or negligently. Three witnesses each were examined on behalf of the parties and the injunction and the show cause notices along with the endorsements were brought on record as Exhibits 1 and 2. On a consideration of the facts and circumstances in the case, tine Court below came to the conclusion that it had not been established that the defendant had violated the order of ad interim injunction knowingly. The miscellaneous case filed by the plaintiff was, therefore, dismissed. Hence, this appeal.
3. The main question for consideration in this case is as to whether there had been proper service of the notices of injunction and show cause and whether the defendant-respondent had knowingly violated the order of the Court. There is no controversy that the notice to show cause (Exhibit I) was served upon the defendant-respondent. Its service has been admitted. The defendant-respondent did not admit the service of the other notice (Exhibit 2). Exhibit 1 reads as under :
^^vki
uksfVl ikus ds 1 lIrkg ds vUnj dkj.k ns[kkosa fd vkids fo:) v/;kErfje fu”ks/k
dk vkns’k D;ksa ugha laiq”V fd;k tk; A rk- okilh 25&7&72 A
&&&&&&
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&&&&&&&&
ctfj;s ds
bldk otg ns[kk;k tk; ds tks rdjkjh tehu vki cspuk pkgrs gSa D;ksa ugha jksdk tk;
rks QSlyk eksdnek tsy ds nj[kkLr esa ntZ fd;k x;k gS A**
This notice was served on 6-7-72. From this it appears that the defendant was asked to show cause why the order of ad interim injunction should not be made absolute against him. Therefore, it is evident that he knew that an order of ad interim injunction had been made. He executed the Vakalatnama on 10-7-72 which was accepted by his lawyer on 19-7-72 and it was filed on the same date. It appears that he was negotiating for the sale of the land in suit but the negotiation had not been finalised by that time. He again appeared on 25-7-72 end filed a petition for time and, on his application, 28-7-72 was fixed for hearing the matter regarding ad interim injunction. This is
apparent from the order sheet of the Court below which reads as under:
^^————izfroknh
,d vkosnu nsdj le; dh izkFkZuk djrs gaS vr% fnukad 28&7&72 dks vErfje ij
lquokbZ gsrq ,oa izfroknh ‘kksdkmt nsosa A**
It is only one day before the date was fixed that the defendant-respondent executed the sale deed on 27-7-72. Thus from the contents of Exhibit 1, the order-sheet of the miscellaneous case, and the conduct of the defendant-respondent, it is evident that the defendant had full knowledge of the order regarding ad interim injunction before the execution of the sale deed; and I find accordingly. In view of my above finding, although it is not necessary to find as to whether Exhibit 2 was also served on the defendant, but in the facts and circumstances of the case, it appears to me that Exhibit 2 was also served upon the defendant-respondent. It does not appear to us likely that one of the notices will be served and the, other will not be served when both were issued on the same date. A.W. 1, who was a pairvikar of the plaintiff, stated that both the notices were served upon the defendant on 6-7-72. He took one of them and refused to take the other after knowing its contents. A.W. 2 is the serving peon who served Exhibit 2 upon the defendant. He has stated that the defendant read the notice and after knowing the contents thereof returned it to him without putting this signature. There is no reason to disbelieve these witnesses. O.W. 1 who was examined on behalf of the defendant-respondent, stated that except one notice no other notice was served upon the defendant on 6-7-72. In cross-examination tills witness stated that he had nothing to do with the case. He stated that he did not see the notice and, therefore, could not say about either of the notices. O.W. 2 was an employee in the same office in which the defendant works. He also stated that on 6-7-72 no other notice was served on the defendant. This witness, apart from being a co-worker of the defendant, was not expected to remain with the defendant at all tunes. O.W. 3 is the defendant himself who is vitally interested in the case. Upon the evidence of these witnesses, it cannot be said that Exhibit 2 was not served upon the defeiidant-respondent.
4. There is yet another feature of the case. The defendant filed his show cause on 7-8-72 and he also filed his written statement. He stated in his evidence
that he had filed the snow cause as also the written statement on the basis of the papers he received from the Court. He admitted that he had not taken copies of those papers from the Court, meaning thereby the plaint or the application for injunction. He furthpr stated that he had got the records inspected by his lawyer Ramraj Babu. If the defendant had no knowledge about the order of ad interim injunction, how could he file his show cause on 7-8-72 without obtaining copies of the relevant papers from the Court? It is not clear from his statement as to when he got the records inspected by his lawyer, but from the circumstances of the case it appears that it must be in between 19-7-72 and 25-7-72 on which dates prayer had been made on his behalf for time to file the show cause. In the circumstances mentioned above, I am of the opinion that the defendant-respondent fully knew about the order of ad interim injunction much before the execution of the sale deed. Thus, the defendant must, be said to have violated the order of the Court passed under Order 39, Rules 1 and 2 knowingly and intentionally.
5. A disobedience of an order of injunction is a contempt of the Court. Order 39. Rule 2 (3), Code of Civil Procedure, provides for the punishment for disobedience of an order of temporary injunction. Once an order has been passed which the Court had jurisdiction to pass, it is the duty of all persons to obey the seme so long as it exists. It would tend to subversion of the orderly administration and civil government, if parties would disobey orders with impugnity. In the case of the State of Bihar v. Rani Sonabati Kumari (AIR 1961 SC 221) it was observed :
“If disobedience could go unchecked, it would result in orders of Court ceasing to have any meaning and judicial power itself becoming a mockery.”
Shri Parmeshwar Prasad Sinha has relied upon certain observations made in Sheo-brichh v. Basgit (AIR 1957 Pat 73) wherein it was observed that Order 39, Rule 2 (3), is of a penal character as the person found guilty of breach of order is liable to imprisonment. As such, it was necessary to record that the breach of the order was made with the intention to defy the authority of the Court issuing the injunction. If it was not with that intention and was in good faith, the party was not liable to be punished under Order 39, Rule 2 (3). In order to justify the committal of a person for contempt of Court for breach of
an order commanding him not to do a particular act, it is sufficient if there is proof that the defendant had knowledge of the order aliunde and he knew that it was intended to be enforced. Dealing with this question in State of Bihar v. Rani Sonabati Kumari (supra) it was observed that if a party being proceeded against, in fact, did not intend to disobey the order, but conducted himself bora fide, he could not be held to have wilfully disobeyed the order. But the question whether a party conducted himself bona fide is essentially a question of fact. The materials on the records of this case clearly establish the rnala fides of the respondent. The defendant-respondent had appeared through his lawyer on 19-7-72 and 25-7-72 and took adjournments in the case, obviously, for the purpose of executing a sale deed on 27-7-72. These facts unquestionably lead to the conclusion that he was obtaining adjournment after adjournment from the Court with the object of executing the sale deed before the injunction matter could be finally heard by the Court in his presence. It is not the case of the defendant-respondent that he had committed an error in construing the order or he had misunderstood the order. His only case is that the order was not received by him. I have already found that the notices had been served upon the defendant-respondent Even if Exhibit 2 is left out of consideration, the notice Exhibit 1 which is admitted to have been served is sufficient to fasten the defendant-respondent with the knowledge of the order of ad interim injunction. The way in which he conducted himself thereafter is a clear proof of his wilful disobedience of the order of the Court.
6. Having so found, the question is what punishment should he awarded to the defendant-respondent. Order 39, Rule 2 (3), reads as under :
“In case of disobedience, or of breach of any such terms, the Court granting an injunction 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.”
It appears that the suit in the Court below was valued at Rs. 10,000. The defendant-respondent, it is alleged, has executed sale deeds for the properties in suit in respect of which ad interim injunction had been issued. The plaintiff-appellant may seek her remedies against that in accord-
ance with law. Here, our main concern is to see how far the act done by the defendant-respondent in disobedience of the Court’s order is in disregard to its authority. The defendant, as found above, disobeyed the Court’s order knowingly and wilfully and has, undoubtedly, committed a contempt of the Court. In my opinion, in the circumstances of this case, it should be enough that the property of the defendant-respondent be attached to the value of Rs. 10,000. Accordingly, I direct the Court below to attach the property belonging to the defendant-respondent up to the value of Rs. 10,000.
7. In the result, this appeal must succeed. The order of the Court below is set aside and the appeal is allowed with costs. Hearing fee Rs. 100.
Lalit Mohan Sharma, J.
I agree.