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Hiralal Hargovindas Vs. Popatlal Sankalchand Patel and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberLetters Patent Appeal No. 42 of 1964
Judge
Reported inAIR1969Guj28
ActsCode of Civil Procedure (CPC), 1908 - Sections 36, 58 and 94 - Order 21, Rule 32 - Order 39, Rules 1, 2, 2A and 2(3); Code of Civil Procedure (CPC), 1882 - Sections 491 and 493
AppellantHiralal Hargovindas
RespondentPopatlal Sankalchand Patel and anr.
Appellant Advocate S.N. Shelat, Adv.
Respondent Advocate G.N. Desai, Adv. and; J.V. Desai, Adv. for; K.C. Shah
DispositionAppeal Dismissed
Cases Referred and Sitaram v. Lachminarain
Excerpt:
.....intended to punish breaches of injunctions falling under rule 1 as well as under rule 2. order xxxix, rule 1 and rule 2 have to be read with section 94 of the civil procedure code which is as under :in order to prevent the ends of justice from being defeated the court may, if it is so prescribed, (a) issue a warrant to arrest the defendant and bring him before the court to show cause why he should not give security for his appearance, and if he fails to comply with any order for security commit him to the civil prison; ' order 21, rule 32 lays down that where the parly against whom a decree .for an injunction has been passed, has had an opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced in the case of a decree .for an injunction by his..........the court belowwas wrong in its decision that dis-obedience of an order passed under order 39, rule 1civil p. c. was punishable under order 39,r. 2(3). it was contended that no penaltyis attached for disobedience of an orderpassed under order 39, rule 1, civil p.c., andthat therefore the lower court's orderwas one without jurisdiction and wasillegal. the lower court relied on ilr 15pat 320 = (air 1936 pat 23) wherein thepatna high court, after reviewing severalauthorities on the question, came to theconclusion that the penalty provided forby sub-rule (3) of rule 2 of order 39. civilp.c., applied also to disobedience oforders passed under r. 1 of the sameorder. the appellant's counsel arguedthat the decision in ilr 15 pat 320 =(air 1936 pat 23) was wrong and shouldnot be followed. a.....
Judgment:

Bakshi, J.

1. This Letters Patent Appeal arises out of proceedings for contempt taken out against the appellant for breach of an ad interim injunction granted in Insolvency Petition No. 24 of 1961, In these proceedings, there were two chamber summons one in respect of the transfer of rickshaw bearing No. BYD. 9602 (New No. GJD 1890) and the other in respect of transfer of rickshaw bearing No. BYD 9410 by the appellant in contravention of the order of injunction passed by the Court on 21st March 1960 restraining the appellant and respondent No. 2 from disposing of their property. The injunction was served on the appellant on 22nd March 1960 when an inventory of the property was taken. These two rickshaws were shown as properties belonging to the appellant in Schedule 'A' which was annexed to the main petition and the inventory that was taken in the presence of the first opponent referred to a permit in the name of one Haji Nurmahmad in respect of rickshaw No. 9410 and the name of Jairam Dunger in respect of rickshaw No. 9602. It was the case of the petitioning creditor that rickshaw No. 9602 was transferred on 29th April 1960 and rickshaw No. 9410 was transferred at a date subsequent to the order of in junction and that the appellant had parted with possession of the two rickshaws. The defence of the appellant was that the rickshaws did not belong to him and that he had not committed any breach of the order of injunction. These two applications in respect of the two rickshaws were heard together and the learned Judge of the City Civil Court held that it was established that the two rickshaws belonged to the appellant and the appellant had disobeyed the injunction order issued on 21st March 1960 and ordered the appellant to be committed to civil prison for one day in respect of each of the breach of injunction and further ordered both the punishments to run concurrently. Against this order, the appellant preferred Appeal No. 100 of 1964 inthe High Court which was dismissed summarily by Divan J. on 8th October 1964. It is against that order of dismissal that the present Letters Patent Appeal has been preferred by the appellant.

2. As regards the question of ownership of the two rickshaws, the finding of the learned Judge of the City Civil Court that the two rickshaws belonged to the appellant has not been seriously challenged by Mr. S. N. Shelat appearing on behalf of the appellant. There is sufficient material on the record to support this finding of the learned Judge. In the first place, the two rickshaws were shown in the list of properties annexed to the petition as belonging to the appellant. When an inventory was taken on 22nd March 1960 in the presence of the appellant, two permits in the names of Haji Nurmahmad and Jairam Dunger in respect of the two rickshaws were found. The appellant filed his reply to the main petition as also to the application for injunction and nowhere in that reply has he denied that the two rickshaws mentioned in the schedule were not of his ownership. Besides this, there are sufficient facts and circumstances which establish beyond doubt the fact that the two rickshaws were of the ownership of the appellant. The evidence discloses that the appellant was in possession of the two rickshaws that the appellant got the two rickshaws plied on hire and collected the income out of such hire; that the appellant maintained day to day accounts of the earnings of these two rickshaws by crediting the earnings and treating them as his own and utilized the same for expenses incurred in connection with the said rickshaws as also for his household and personal expenses. The appellant did not examine the permit holders or the drivers plying the rickshaws to prove his version that the accounts in respect of the two rickshaws were merely maintained, on behalf of the drivers and that he had nothing to do with the same.

3. The appellant stated in his evidence that he had maintained accounts in respect of the rickshaws; that he had given bonus to the rickshaw drivers; that he had given moneys by way of permit charges to the persons in whose names the permits of the two rickshaws stood and that he had treated the earnings as his own by crediting them on the credit side and then appropriating them towards not only the expenses incurred in respect of the rickshaws but also towards his household expenses. There is no note that has been maintained by the appellant which would show that he was getting a remuneration of Rs. 15 per month in respect of each of the rickshaws. The earnings of these two rickshaws appear to have been credited from day to day and a diary has been maintained in the formof a cash-book where there are corresponding debit entries showing as to how these earnings were appropriated. The learned trial Judge has referred to the accounts and the entries in detail and the learned advocate for the appellant has not advanced any argument to show that the several entries and the documents referred to by the learned trial Judge were false or that the learned trial Judge had in any manner, erred in the appreciation of evidence on the basis of which he had come to the conclusion as regards the ownership of the two rickshaws. It must therefore, be held that the two rickshaws were of the ownership of the appellant.

4. It has not been disputed before us that the two rickshaws were transferred subsequent to the order of injunction. The main question that has been canvassed by ,Mr. Shelat was as regards the legality of the punishment passed by the learned trial Judge against the appellant. Mr. Shelat contended that the order of injunction was passed by the learned trial Judge Under Clause (b) of Rule 1 of Order XXXIX of the Code of Civil Procedure and that there was no provision in Rule 1 of Order XXXIX or in any other rule of that order empowering the Court to impose any penalty for breach of an injunction granted under Order XXXIX, Rule 1(b). In Sub-clause (3) of Rule 2 of Order XXXIX, there is a provision for the imposition of penalty in case of disobedience of the terms of an injunction, but Mr. Shelat contended that Sub-clause (3) of R. 2 provided for the breach of the terms of an injunction granted under Rule 2 and not Rule 1 of Order XXXIX. It was contended by Mr. Shelat that a provision for imposing penalty for disobedience of an injunction similar to Clause (3) of Rule 2 does not appear below Rule 1 of Order XXXIX and that therefore, the Legislature never intended that a breach of an order for injunction issued under Rule 1 should be punished. On the basis of this argument, Mr. Shelat contended that the learned trial Judge had no power to punish the appellant for breach of the order of injunction passed against him.

5. The exercise of the power to punish for breach of an injunction has been justified by courts in India on two grounds, firstly on the basis of Section 36 read with Order 21, rule 32 of the Civil Procedure Code and secondly on the basis of section 94 read with Clause (3) of Rule 2 of Order XXXIX. The Nagpur High Court in the case of Pannalal Bose v. Shreeram Daluram, AIR 1945 Nag 134, has taken the view that disobedience of an injunction issued under Order 39, Rule 1 is not punishable under Order 39, Rule 2(3) but can be dealt with under Order 21, Rule 32 read with Sections 36 and 58, Civil Procedure Code. In that caseat page 136 of the report. It has been observed that -

'The further argument on behalf ofthe appellant was that the Court belowwas wrong in its decision that dis-obedience of an order passed under Order 39, Rule 1Civil P. C. was punishable under Order 39,R. 2(3). It was contended that no penaltyis attached for disobedience of an orderpassed under Order 39, Rule 1, Civil P.C., andthat therefore the lower Court's orderwas one without jurisdiction and wasillegal. The lower Court relied on ILR 15Pat 320 = (AIR 1936 Pat 23) wherein thePatna High Court, after reviewing severalauthorities on the question, came to theconclusion that the penalty provided forby Sub-rule (3) of Rule 2 of Order 39. CivilP.C., applied also to disobedience oforders passed under R. 1 of the sameOrder. The appellant's counsel arguedthat the decision in ILR 15 Pat 320 =(AIR 1936 Pat 23) was wrong and shouldnot be followed. A later decision reportedin : AIR1941All140 was brought to , our notice and it wasargued that it should be held that Order 39,Rule 2(3), Civil P.C., was applicable, notto injunctions issued under Rule 1, but onlyto those issued under Rule 2 of theOrder. The entire case law has been reviewed in : AIR1941All140 . The Patna decision, ILR 15 Pat320 = (AIR 1936 Pat 23) is based on a comparison of Rules 1 and 2 of Order 39, CivilP.C., with Sections 491 and 493, Civil P.C.,1882. It is, however, admitted by theJudges who decided that case that theconstruction they were placing on therules as they stood was by declaring thatthe drafting was not lucid and that it wasdesirable for the Legislature to re-draftRule 2, perhaps by replacing Rule 2(3), withsuch modifications as may be required,by a new Rule 2A. The very decisiontherefore, indicates that the constructionthat the Judges wanted to put on the tworules of Order 39. Civil P.C., ,viz. Rules 1 and2, and in particular Rule 2(3), was not logical one but a strained one. They had tostate that the drafting was defective, butthey thought that the intention was topunish disobedience of injunctions wherethe injunction was issued under Rule 1 orRule 2 of Order 39. This again was based onthe fact that the Legislature was notlikely to omit the provision of a penaltyfor breach of an injunction under Order 39,Rule 1, Civil P.C. As the rules stand, nopenalty has been prescribed for breachof a temporary injunction granted underOrder 39, Rule 1. ** ** **'

Inasmuch as Rule 2 refers to a temporary injunction granted in a suit for restraining the defendant from committing a breach of contract or other injury of any kind, Sub-rule (3) provides that the Court may attach his property or put him in the civil prison in case of disobedience.

Inasmuch as Sub-rule (3) is a part of main Rule 2 the necessary inference is that it provides a penalty only for the disobedience of an injunction issued in the special circumstances mentioned in Rule 2. This appears to be the reasonable construction that can be placed on Rules 1 and 2 of Order 39. The Allahabad High Court in : AIR1941All140 has pointed out that the interpretation put by the Patna High Court was not a natural one, and that it was not necessary to strain the meaning of Order 39, Rule 2(3), as it was possible to enforce the injunction issued under R. 1 under the provisions of Section 36 and Order 21, Rule 32 Civil P. C. The Allahabad High Court has thus pointed out that the Legislature has not omitted to provide a penalty for disobedience of an injunction issued under Order 39, Rule 1. The difficulty therefore expressed by the Patna High Court vanishes if the argument of the Allahabad High Court be correct. Section 36, Civil P.C. lays down that -

'the provisions of this Code relating to the execution of decrees shall, so far as they are applicable, be deemed to apply to the execution of orders.'

Under Order 21, Rule 32 injunctions contained in decrees can be enforced in certain ways, and by the application of Section 36 an order under Order 39, Rule 1, Civil P. C. can be enforced by imposing a penalty such as is provided for in Order 21, Rule 32. Order 21, Rule 32 lays down:

'(1) Where the party against whom a decree ....for an injunction has been passed, has had an opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced in the case of a decree ... for an injunction by his detention in the civil prison, or by the attachment of his property or by both.

This is a penalty that is almost the same as the one contained in Order 39, Rule 2 (3). The period of detention in the civil prison will, however, be regulated by the provisions of Section 58, Civil P.C. Agreeing with the Allahabad High Court we respectfully dissent from the view taken in ILR 15 Pat 320 = (AIR 1936 Pat 23) and hold that disobedience of an injunction issued under Order 39, Rule 1, Civil P.C., is not punishable under Order 39, Rule 2(3), but can be dealt with under Order 21, Rule 32, read with Sections 36 and 58, Civil P.C.'

In this case, the Nagpur High Court followed a similar view that was taken by the Allahabad High Court in the case of Janak Nandini v. Kedar Narain Singh : AIR1941All140 .

6. The other view that Sub-clause (3) of Rule 2 of Order XXXIX applies to cases of disobedience of all injunctions issued under section 94 of the Civil Procedure Code was taken by the MadrasHigh Court in Adaikkala Thevan v. Imperial Bank, Madura Branch, AIR 1926 Mad 574. At p. 574, the relevant observations are as follows:--

'Under Section 94, Civil Procedure Code, the Court is empowered to commit a person guilty of disobedience of an injunction to the civil prison and to direct that his property shall be attached and sold. Order 39, Rule 2(3) prescribes the punishment and under it, the person in default may be detained in the civil prison for a term not exceeding six months, and his property may be attached. The drafting of this rule, as has been pointed out in Ramprasad Singh v. Benaras Bank Ltd., ILR 42 All 98= (AIR 1919 All 20) is somewhat inartistic, but there is no doubt that it applies to disobedience generally of an injunction granted by the Court Order 39, Rule 2(3) applies not only to disobedience of an order issued under Clauses (1) and (2) of that rule but has a more general application, it applies alike to disobedience of all injunctions issued under Section 94. See also Krishnapur Mutt by Vidyapurna Thirthaswami v. Vicar of Suritkal Church, AIR 1918 Mad 340.'

In T.K. Nagaiah v. D. Sambaiah, AIR 1963 Andh Pra 136, it was held that a combined reading of Section 94 and Order 39, Rules 1 and 2 would lead to the conclusion that the punishment prescribed by Sub-rule (3) of Rule 2 applies to an injunction issued under Order 39 and Section 94. In that decision, the decisions of the Madras High Court in AIR 1926 Mad 574 referred to above and AIR 1936 Pat 23 and AIR 1946 Pat 47 were relied upon. It was observed at page 137 that -

'A perusal of Section 94 C.P.C. clearly Indicates that it is intended to take in breaches of all injunctions, that section being couched in general terms. We are not persuaded that the generality and scope of relevant statutory provisions should be confined to breach of injunctions issued under Rule 2 of Order 39. C.P.C. It is true that the provision containing the punishment for disobedience of injunctions is included as part of rule 2 but that is not decisive of the matter. Order 39 C.P.C. has to be read in the light of Section 94 C.P.C. In our considered judgment, this was intended by the legislature to be applied to all breaches of injunctions issued under Order 39 and Section 94 C.P.C. It cannot be postulated that the legislature did not provide for penalty through some inadvertence in Order 39, Rule 1 C.P.C. for punishing persons guilty of disobedience of orders of Courts.

7. It is argued for the appellant on the basis of : AIR1941All140 that the legislature had not omitted to provide a penalty for breach of injunction issued under Order 39, Rule 1, C.P.C. in that the injunctions contained in Orders couldbe enforced under Order 21, Rule 32 read with Section 36 C.P.C. and that it would not be natural to interpret Order 39, Rule 2, Sub-rule (3) as covering orders under Order 39, Rule 1. We are unable to assent to the principles enunciated in the two cases cited above.

8. We are not satisfied that Order 21,Rule 32 read with Section 36 C.P.C. is intended to apply to temporary injunctionsissued under Order 39. Order 21, Rule32 read with Section 36 C.P.C. dealswith execution of orders. The remedyprovided under Order 21, Rule 32 andSection 36 could be availed of only byparties to a proceeding and it does notempower a Court suo motu to punish aperson for breach of an injunction. Theseprovisions are meant to enable a party toenforce the injunctions contained in thedecrees or orders but not for the purposeof empowering a Court to punish a partyguilty of disobedience. That being theobject of Order 21, Rule 32 read withSection 36 C.P.C. resort cannot be had tothose provisions for the purpose of punishing a person for breach of an injunction.

9. In our opinion, a combined reading of Section 94 and Order 39, Rules 1 and 2, C.P.C. leads to the conclusion that the punishment prescribed by Sub-rule (3) applies to an injunction issued under Order 39 and Section 94 C.P.C. It may be that Sub-rule (3) was drafted somewhat inartistically but the intendment of the legislature appears to be clear, namely to punish persons guilty of violation of injunctions issued under either of the two rules.

10. We are fortified in this opinion of ours by the judgment of a Division Bench of the Madras High Court in 50 Mad LJ 401 = AIR 1926 Mad 574. Venkata Subba Rao and Madhavan Nair JJ., laid down in that case that Sub-rule (3) of Rule 2 applies not only to disobedience of orders issued under Clauses 1 and 2 of that rule, but it applies equally to disobedience of an injunction issued under Section 94 of the Code. The learned Judges referred with approval to the judgment of Kumaraswamy Sastri J.; in 7 Mad LW 328: AIR 1918 Mad 340. The view taken by the Patna High Court in Jang Bahadur Singh v. Chabila Koiri, ILR 15 Pat 320=AIR 1936 Pat 23 and Sitaram v. Lachminarain, ILR 24 Pat 606 = AIR 1946 Pat 47 is in accord with this doctrine. We are not satisfied that the law stated in 50 Mad LJ 401 = AIR 1926 Mad 574 is wrong and that it requires reconsideration, as suggested by the learned counsel for the appellant. We feel that it brings out clearly the spirit of Section 94 and Order 39 C.P.C.

11. It would be convenient here to quote the provisions of Order XXXIX, Rules 1 and 2;

'Where in any suit it is proved by affidavit or otherwise -

(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree,

(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to defraud his creditors,

the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property as the Court thinks fit, until the disposal of the suit or until further orders.

2(1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right.

(2) The Court may by order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise, as the Court thinks fit.

(3) 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.

(4) No attachment under this rule shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues, the property attached may be sold, and out of the proceeds the Court may award such compensation as it thinks fit, and shall pay the balance, if any, to the party entitled thereto.'

It is, no doubt, true that the provision for penalty for breach of an injunction is not contained as a separate clause in Rule 1 and it is equally true that it is Sub-rule (3) of Rule 2 which provides for the disobedience or breach of the terms of an injunction. But that could not be considered to be conclusive of the matter. It appears that by some deficient or inartistic drafting, the provision for imposing the penalty for disobedience of an injunction has been included in Sub-rule (2), but the intendment of the Legislatureappears to be clear, viz. to punish a person guilty of violation of an injunction. It is true that the Court cannot fill in gaps left over by the Legislature and the intention of the Legislature has to be gathered from what has been enacted by it. It is also true that the cardinal rule of construction of the Acts of Legislature is that they should be construed according to how the Legislature itself has expressed and when the language and the structure of a provision is clear, it should be given effect to. But that does not mean that one should ignore the true perspective and the setting in which a provision has been placed. It is true that the language of an enactment reflects the legislative intent but all that can be said in the present case is that Sub-rule (3) of Rule 2 has not been placed at its proper place. Nevertheless, the intent of the Legislature is clear and the words that have been used in Sub-rule (3) are that 'In case of disobedience, or of breach of any such terms' and these words which are followed by the penalty to be imposed show that the Legislature intended to punish breaches of injunctions falling under Rule 1 as well as under Rule 2. Order XXXIX, Rule 1 and Rule 2 have to be read with Section 94 of the Civil Procedure Code which is as under :--

'In order to prevent the ends of justice from being defeated the Court may, if it is so prescribed, --

(a) issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not give security for his appearance, and if he fails to comply with any order for security commit him to the civil prison;

(b) direct the defendant to furnish security to produce any property belonging to him and to place the same at the disposal of the Court or order the attachment of any property;

(c) grant a temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and order that his property be attached and sold;

(d) appoint a receiver of any property and enforce the performance of his duties by attaching and selling his property;

(e) make such other interlocutory orders as may appear to the Court to be just and convenient.'

Under Sub-clause (c) of Section 94, the Court is empowered to grant a temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and order that his property be attached and sold. The grant of an injunction has been provided for under Order 39 and if we read both the section and the rules together, it would appear that the punishment prescribed under Sub-rule (3) of Rule 2 would apply to an injunction issued under Order XXXIXand Section 94. Order XXXIX has to be read in the light of Section 94 and on reading both the sections together, it appears that what was intended by the Legislature was that the punishment provided for in Sub-rule (3) of Rule 2 was in respect of all injunctions issued under Order XXXIX and section 94 and we cannot persuade ourselves to accept the argument that the Legislature did not intend to punish a person who had flouted an order of injunction issued under Order XXXIX, Rule 1, although it intended to punish a person who had committed a breach of injunction issued under Rule 2 of Order XXXIX. We are, therefore, in agreement with the view expressed in AIR 1926 Mad 574 and : AIR1963AP136 . The learned trial Judge had, therefore, the power to punish the appellant for breach of the injunction granted on 21st March 1960. In view of the above finding, it is unnecessary to take resort to the provisions of section 36 and Order 21, Rule 32 of the Civil Procedure Code. Section 36 provides that -

'The provisions of this Code relating to the execution of decrees shall, so far as they are applicable, be deemed to apply to the execution of orders.'

Order 21, Rule 32 lays down that where the parly against whom a decree ..... for an injunction has been passed, has had an opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced in the case of a decree ...... for an injunction by his detention in the Civil prison, or by the attachment of his property, or by both. It will be seen that the penalty is almost the same as one contained in Order XXXIX, Rule 2(3) and the period of detention in civil prison would be regulated by the provisions of Section 58 of the Civil Procedure Code. It was on this reasoning that the power to impose penalty for a breach of an order of injunction issued under Order XXXIX, Rule 1 was sought to be justified by the Nagpur High Court in AIR 1945 Nag 134. This is indeed a possible view of the matter, but as already stated, the power to punish for breach of an order of injunction issued under Order XXXIX, Rule 1 can more appropriately be justified on the view that Sub-rule (3) of Rule 2 of Order XXXIX also covers cases of breach of orders for injunction issued under Order XXXIX, Rule 1.

12. For the reasons aforesaid, we are unable to accept the argument of Mr. Shelat that the learned trial Judge had no power in law to punish the appellant for the breach of the order of injunction passed against him.

13. The appeal, therefore, fails and is dismissed with costs.


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