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Babulal Parekh Vs. Lachminarayan Swalram and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 278 of 1962
Judge
Reported inAIR1964Ori53; 29(1963)CLT613
ActsCode of Civil Procedure (CPC) - Order 39, Rule 2(3)
AppellantBabulal Parekh
RespondentLachminarayan Swalram and ors.
Appellant AdvocateR.N. Misra, ;R.C. Patnaik and ;B. Harichandan, Adv.
Respondent AdvocateN. Mukherji, Adv. for Opp. Parties Nos. 1 to 6
DispositionRevision allowed
Cases ReferredS.N. Banerji v. KuchwarLime and Stone Co.
Excerpt:
.....not give the undertaking in his personal capacity and the contempt proceedings did not bring home to him the charge that he aided and abetted the infringement of the undertaking by defendant-1. the petitioner is, therefore, not punishable in contempt even though the undertaking might have been violated by defendant-1. 8. on the aforesaid discussion, i am satisfied that the petitioner is not liable to prosecution in contempt......him. the petitioner was the manager of defendant-1. even though he is not a party to the suit, injunction could have been issued against him. in other words, so far as this case is concerned, undertaking could have been taken from him besides being taken from defendant-1. but in fact no undertaking has been taken from the petitioner though he gave the undertaking on behalf of defendant no. 1.as was observed in s.n. banerji v. kuchwarlime and stone co., ltd., air 1938 pc 295 thepetitioner could have been prosecuted in contemptin aiding and abetting defendant-1, and in theabsence of such allegation and proof the courtcould have dismissed the petition as against thepetitioner. the contention that once injunctionis issued, anybody violating the order is liable topunishment was.....
Judgment:
ORDER

G.K. Misra, J.

1. Babulal Parekh is the petitioner. He is not a party to Money Suit No. 270 of 1960 in the Court of the Second Munsif, Cuttack; but hewas the manager of defendant-1 (M/s. H.J. Vralal and Co.) at the relevant time. The suit was filed on 7-7-1960 with a prayer for attachment before judgment of the movables of the defendants. On 9-7-1960, Writ of attachment before judgment was issued. On 11-7-1960, defendant 1 entered appearance through the petitioner and prayed for recalling the order of attachment. The attachment matter was not heard on that day. On the question of undertaking the Court passed an order to the effect-

'The defendant No. 1 has undertaken not to close down the business.'

It is the violation of this undertaking which is the subject matter of this revision. It may be made clear at this stage that on 20-7-1960, the Court also passed an order to the effect-

'The defendants are restrained from removing or alienating any property of the shop before furnishing security.'

This order is not the subject matter of this revision as on 21-7-1960 it was recalled. On 2-8-1960, the plaintiffs filed an application for proceeding in contempt against defendant No. 1 and the petitioner alleging that defendant No. 1 had already removed the movables and closed down their business in contravention of the undertaking dated 11-7-1960, and that defendant No. 1 in collusion with his landlord Matrumal Modi of Nayasar had removed the sign-board of defendant-1 and had put another signboard with the title 'Sri Durga Stationery Stores; Prop. Motilal Sanwar Mall, General Merchant, Cuttack.' No allegation was made in the application as to the part played by the petitioner in the matter of violation of the undertaking. The only allegation was that he was the manager of defendant-1 and the nephew of defendant No. 2. It may be noted that there was no reference in the application to the provision of law under which the contempt proceeding was started.

2. On 1-12-1960, the petitioner filed his objection stating that he was not a party to the suit, but appeared in the proceeding under Order 38, Rule 5 C. P. C. in that suit as the manager representing the Company (defendant-1), that the shop house was located in a rented house, that as the landlord threatened the objector with dire consequences on account of non-payment of rental, the objector was obliged to remove the business premises to Maha-madia Bazar in the town of Cuttack, that all that was sold on 19-7-1960 were the almirahs and the iron safe which had been embedded into the walls, and that the application under Order 39, Rule 2, C. P. C. is not maintainable against him.

3. Misc. case No. 188 of 1960 was started under Order 39, Rule 2 C. P. C. On 26-10-1961, Sri A.K. Patra. Munsif, Second Court, passed the following order-

'The counsel for the petitioners appears. The O. P. is absent on call and set ex parte. Examined P. W. 1. Both Exs. 1 to 3 marked. In the absence of any witness to the contrary the witness of P. W. 1 and Exs. 1 to 3 are accepted.. The O. P. violated the injunction order, i,e. the undertaking siven by him to the Court. Properties of the O. P. worth Rs. 500/- be attached under Order 39, Rule 2(3), C. P. C.'

The learned Munsif should not have passed such a cryptic order even though it was heard ex parte when he decided to inflict punishment for violation of the undertaking. It is well settled that proceedings in contempt are quasi-criminal in nature, and the order punishing the contemners, generally speaking, should be treated as orders in criminal cases. Against the aforesaid order, defendant-1 did not file an appeal before the learned District Judge in Misc. Appeal No. 153 of 1961. The order, as against defendant 1, therefore, has become final and so far as he is concerned, the punishment imposed by the learned Munsif would stand. He is also not a petitioner before me. The petitioner's appeal was dismissed by the learned District Judge on 22-9-1962.

4. Mr. Misra raises the following contentions (i) the undertaking had not been violated; (ii) Order 39, Rule 2 (3), C. P. C. has no application to this case and the trial court had no jurisdiction otherwise to proceed in contempt for violation of the undertaking and (iii) the petitioner is not a party to the suit and had not given the undertaking; he was merely the manager of defendant-1 and is not liable to prosecution.

5. The learned District Judge rejected the contention that the petitioner was not bound by the undertaking given by defendant-1. He came to a finding that the signboard of defendant-1 had been removed from the business premises. Though there was no evidence before him that the business had been closed down by defendant No. 1, he came to the categorical finding that the defendants were not free from liability, merely because they removed their articles to another place and that they should have taken permission of the Court when they intended to shift the shop house to another place. The learned District Judge should have recorded a clear finding as to whether the business was closed down or not. Shifting the shop from one place to another necessarily does not amount to closure of the business. No undertaking had been given that the place of business should not be shifted. When the violation of the undertaking is punishable in contempt, the undertaking must be very strictly construed. The finding of the learned Judge only goes to the extent that the signboard was changed and the business premises were shifted. He should have further held that defendant-1 was not carrying on business even at the place where they purported to have shifted the shop. In the absence of such a finding, it cannot be held that the undertaking had been violated and defendant-1 and the petitioner are both not liable to punishment. But as I have already said, defendant-1 did not file an appeal, nor is a petitioner before me, and the order of the trial Court as against him would stand.

6. Mr. Mukherji cited G. Venkatalingam v. G. Mrutyanjayudu, AIR 1943 Mad 541 and Baj-ranglal Gangadhar v. Kapurchand Ltd. AIR 1950 Bom 336 in support of the contention that the trial court has jurisdiction to proceed in contempt. In these cases, the contempt proceedings had been started by the High Court which has .full power and jurisdiction under the Contempt of Courts Act to start original proceeding in contempt. High Court also has powers to start proceedings for contempt of subordinate Courts. But no subordinate Courts have powers to start contempt proceedings under this Act except by way of reporting to the High Court. This is not a case of that category. These two decisions have, therefore, no application to the facts of this case.

Gurumurthy v. Perumal Pillai, AIR 1936 Mad 651 is a direct decision on the point that the subordinate Courts have full jurisdiction and powers to proceed in contempt under Order 39, C. P. C. for violation of undertakings given, to them. Varadacharier, J. observed as follows:

'Whether what has happened in any particular case amounts to an injunction or not must be decided with reference to the substance of the court's order and not as a mere matter of form. In the view that I am bound to uphold the authority of the Court so far as is reasonable and within the limits permitted by law, I would hold that when a Court accepts an undertaking given by a party, its order amounts in substance to an injunction restraining him from acting in breach thereof. The form only implies that the Court is prepared to deal with him honourably in the expectation that he will treat his undertaking as equivalent to an order of the Court. It does not seem to me to come with any grace from the mouth of the person who has given such undertaking to say that because the Court was goad enough to accept that undertaking and did not pass order ot its own he is not in the position of a person bound by the order of the Court.'

This passage, in my view, lays down the law correctly. The injunction is by way of restraining the party from acting in breach of the undertaking. It is argued that the Court could not have passed an order of injunction restraining defendant-1 from not carrying on the business. This is, however, wholly irrelevant. What order the Court could have passed in issuing the injunction is beside the point. The order of the Court injuncting closure of the business might be wrong in law, but certainly it would not be an order without jurisdiction. Kerr on Injunction, 6th Ed. at page 668, quotes-

'An order for injunction must be implicitly observed and every diligence must be observed to obey it to the letter. However erroneously or irregularly obtained, the order must be implicitly observed so long as it exists. A party affected by it cannot disregard it or treat it as a nullity, but must have it discharged on a proper application.' I am, therefore, satisfied that proceedings in contempt can be started by subordinate Courts under Order 39 Rule 2(3), C. P. C. for infringement of the undertaking given to them.

7. The question, however, remains that the petitioner did not himself give the undertaking. Equity acts in person and an injunction is a personal matter. The ordinary rule is that it can only be disobeyed in contempt by the persons named in the writ No injunction can be passed against a person who is not a party to the suit unless he claims by or under a party under a title acquired subsequent to the suit, or unless he is a servant or agent of the party or otherwise represents him. The petitioner was the manager of defendant-1. Even though he is not a party to the suit, injunction could have been issued against him. In other words, so far as this case is concerned, undertaking could have been taken from him besides being taken from defendant-1. But in fact no undertaking has been taken from the petitioner though he gave the undertaking on behalf of defendant No. 1.

As was observed in S.N. Banerji v. KuchwarLime and Stone Co., Ltd., AIR 1938 PC 295 thepetitioner could have been prosecuted in contemptin aiding and abetting defendant-1, and in theabsence of such allegation and proof the Courtcould have dismissed the petition as against thepetitioner. The contention that once injunctionis issued, anybody violating the order is liable topunishment was negatived. The Judicial Committee observed-

'The respondent sought to avoid this difficulty by maintaining that doing by anyone of an act, which was forbidden by the injunction, was itself an offence. Their Lordships can find no authority for so wide a proposition. It is certainly not enunciated or indeed hinted at in the cases referred to, nor do they think it is sound, in principle.'

Before their Lordships the injunction order was to the effect-

'to restrain the defendant and his servants from interfering with the plaintiff's lease.'

Ghose and Banerji were not servants of the Secretary of State, but were servants under Kalyanpur Company who had derived their interest from the Secretary of State. The Secretary of State had been prohibited by injunction but not the Kalyanpur Company. Their Lordships held that Ghose and Banerji were not punishable in contempt even though the Company derived that title from the Secretary of State as the injunction in terms was not issued against them. The petitioner did not give the undertaking in his personal capacity and the contempt proceedings did not bring home to him the charge that he aided and abetted the infringement of the undertaking by defendant-1. The petitioner is, therefore, not punishable in contempt even though the undertaking might have been violated by defendant-1.

8. On the aforesaid discussion, I am satisfied that the petitioner is not liable to prosecution in contempt. The Civil Revision is allowed, but in the circumstances, parties to bear their own costs throughout.


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