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Umaraosingh Daulatsingh Vs. Ramgopal Ramnarayan and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 201 of 1959
Judge
Reported inAIR1961MP9
ActsCode of Civil Procedure (CPC) , 1908 - Order 39, Rule 2(3); Code of Criminal Procedure (CrPC) - Sections 145
AppellantUmaraosingh Daulatsingh
RespondentRamgopal Ramnarayan and anr.
Appellant AdvocateR.G. Waghmare, Adv.
Respondent AdvocateGandhe, Adv.
DispositionApplication dismissed
Cases ReferredShri Subodh Copal v. Dalmia Jain and Co.
Excerpt:
- .....-- permanent or temporary -- is made and is in force, it implies as a judicial finding that the person restrained is not in possession, and the person in possession is the one whom the person restrained is enjoined not to disturb. in certain circumstances, an injunction order can be challenged in the superior courts, but subject to it, it is final until vacated or modified by the court making it. it is obvious, as otherwise every person who is restrained will go on repeating that he is in possession in spite of the order restraining him. this principle has been referred to in several cases: for example in kalu v. bhika, mblj 1954 hcr 1241, it was held: 'the court believed that the disputed field was in possession of the plaintiff and consequently restrained the defendants from.....
Judgment:

H.R. Krishnan, J.

1. The applicant Umraosingh, who is the surviving defendant in a suit by the opponents, has been sentenced under Order 39 Rule 2(3) C.P.C., for disobedience of a temporary injunction order. He had gone to the superior Court against the order itself but it has been maintained. Against the order of punishment, he went up in appeal which has also been dismissed. Now he has come up in revision alleging that for one thing, he was acting in a new capacity, and he was not interfering with the possession of the plaintiff, hut was entering property that had been in his possession from his father.

2. This case raises questions, as to whether a person charged with disobedience of an injunction order could question the facts on which the order had been passed; and secondly, whether the person who had been restrained in one capacity could disobey the order, and plead that he was doing so in another capacity.

3. Though the facts of the suit are somewhat complicated, those relevant for our present consideration are simple. The plaintiffs alleged that on a part of their pucca tenancy they had permitted the present applicant and his father Daulatsingh who was also a defendant, to put up a house to enable them to work as agricultural servants on the basis of Naukarnama Their work being unsatisfactory, he terminated the agreement and called upon the defendants -- both the father and the son -- to vacate the house. The defendants had also been given some land which they surrendered but would not vacate the house. They wanted to do the work but the plaintiffs did not desire it. After this they stayed in the house and went one step farther by threatening to occupy the agricultural land and dispossess the plaintiffs from there. Accordingly the suit was for restoration of possession of the house and for permanent injunction restraining both the father and the son from going on the land and interfering with the plaintiffs' possession. The defendants for their part denied that they had given up the land; they fur-ther claimed that the house had been built by them with their own money and that they were entitled to stay in it.

4. An order for temporary injunction was made. At the first instance, the provisional order was against both; but when they appeared and showed cause, Daulatsingh's case way accepted andprovisional order against him was vacated on 19th of August 1958. Actually he was an old man, whodied two months later. It is to be noted that therewas no finding that Daulatsingh was in possessionof the land but the order was just vacated. Theorder was confirmed as against Umraosingh, whowas restrained from going on the land which order, it may be noted, is still in force and operative in spite of Umraosingh's moving the superior Courts. When Daulatsingh died, Umraosingh went on the land and removed the standing crop. This of course he admits in a petition, his explanation being that the land was in possession of his father, and not in possession of the plaintiffs. He had inherited it: moreover, the order against him was that --''He should not interfere with the possession ot the plaintiffs'; and since ''the plaintiffs were not in possession, he has not violated the order'. In addition, in this Court for the first time he avers that all the time there were proceedings in a criminal Court under Section 145 Cr. P.C., and those proceedings had ended in his favour. The trial Court has punished him under Order 39 Rule 2(3). An appeal has been dismissed.

5. Even if there is an order under Section 145 Cr. P. C., it has no bearing on the present case, as the suit is already pending and temporary injunction order has already been passed. Probably the criminal Court was not apprised of it. In any event, a .person against whom an injunction order is operative cannot disobey it on the strength of a Criminal Court's order under 145, Cr. P.C. The i appropriate course for him is to bring the order to the civil court and invite it to reconsider its injunction order in the light of the criminal court's order. But as long as the injunction order is in force, the finding of the criminal Court under Section 145 is of no consequence.

6. Nor can the applicant be heard to say that he was in possession of the land all the time, and therefore he has not contravened the injunction order which is to the effect that ho should not disturb the possession of the plaintiff. Whenever an injunction order -- permanent or temporary -- is made and is in force, it implies as a judicial finding that the person restrained is not in possession, and the person in possession is the one whom the person restrained is enjoined not to disturb. In certain circumstances, an injunction order can be challenged in the superior Courts, but subject to it, it is final until vacated or modified by the court making it. It is obvious, as otherwise every person who is restrained will go on repeating that he is in possession in spite of the order restraining him. This principle has been referred to in several cases: for example in Kalu v. Bhika, MBLJ 1954 HCR 1241, it was held:

'The court believed that the disputed field was in possession of the plaintiff and consequently restrained the defendants from interfering with the plaintiff's possession. As long as this order is inforce, defendants cannot trespass on the disputed field on the ground that they have been in possession from before the institution of the suit, until the order is vacated. If they trespass on the land in defiance of the order of temporary injunction, they hold themselves liable for contempt which is punishable.'

7. Thus the applicant cannot be heard to say that it was his father Daulatsingh who was in possession and not the plaintiffs. The fact is that the order was vacated as against Daulatsingh and maintained only as against Umraosingh.

8. If Daulatsingh was not in possession, the story that the applicant was stepping into his shoes as his heir, is a mere pretext not worth any credence on the facts. But even apart from it, in principle, a person, who has been restrained, cannot disobey the order by asserting, may be truly though it is not the position here, that he has got a new capacity different from the one in which he was restrained. Injunction is essentially a disability against the person and the mere fact that his capacity is changed, is no justification for his defying the order. He may certainly try to persuade the Court to vacate or modify the order but as long as the order stands, he cannot disobey it.

Even if another party, beyond the court's process, is compelling him to do what he has been restrained from, the person restrained should refuse to do it. Eastern Trust Co. v. Mackenzie Mann and Co., Ltd., AIR 1915 PC 106, is an authority on that point and the later Patna case reported in Shri Subodh Copal v. Dalmia Jain and Co., Ltd., AIR 1951 Pat 266, dealing with the problem at some length, A party to an order of injunction cannot, with impunity, disobey the order by assuming or taking a different capacity, in respect of the act or acts which constitute a breach of the order of injunction.

9. Thus, looked at, in any manner whatsoever, the applicant is guilty of the breach of the order. His conduct being highly contemptful, the punishment awarded, if anything, is far too lenient.

10. The application is dismissed with costs and pleader's fee according to rules payable to plaintiffs-opponents by the defendant-applicant.


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