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Thakorlal Parshottamdas Vs. Chandulal Chunilal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 395 of 1962
Judge
Reported inAIR1967Guj124; (1966)7GLR970
ActsCode of Civil Procedure (CPC), 1908 - Sections 96 and 115 - Order 39, Rule 2(3) and 2(4) - Order 41, Rule 1; Contempt of Courts Act, 1952 - Sections 3
AppellantThakorlal Parshottamdas
RespondentChandulal Chunilal
Appellant Advocate V.J. Desai, Adv.
Respondent Advocate S.B. Majumdar, Adv.
Excerpt:
- - the trail court, however after considering the affidavits on record came to the conclusion that the allegation of the petitioner was well founded and he accordingly allowed the application and passed the following order: the lower appellate court clearly failed to exercise jurisdiction vested in it by law in setting aside the order of the trail court under order 39 rule 2 clause (3) on the ground that the said order did not survive in view of the injunction being vacated in appeal. 2 c1 (3) is clearly inapplicable and in such a case the proper remedy would be to detain the person guilty of disobedience or breach in civil prison under the second part of o......that the respondent had through his wife obstructed the petitioner in going to the second floor. the trail court, however after considering the affidavits on record came to the conclusion that the allegation of the petitioner was well founded and he accordingly allowed the application and passed the following order: ' the defendant's movable properties to the extent of the vale f rs. 100 only shall be attached under o. 39, rule 2 p.c. if he fails to deposit rs. 100 in court on 10th april 1961. defendant to pay cost of this application to the plaintiff '. the respondent being aggrieved by this order passed by the learned trial judge preferred an appeal in the district court and this appeal was numbered appeal no. 23 of 1961. in the meantime the ad interim injunction granted on.....
Judgment:
ORDER

(1) There was a dispute between the petitioners and the respondents in regard to the question whether the petitioners was entitled to go through one he rooms on the fist floor let out by the petitioners to the respondents for the purpose of having access to the second floor which was in the possession of the petitioner. The petitioner filed a suit against the respondent in the Court of the Civil Judge, Junior Division, Baroda seeking an injunction restraining the respondents from obstructing the petitioner is going to the second floor through the room on the fist floor which was in the possession of the respondent. After filing the suit the petitioner applied for an interim injunction and on the application of the petitioner and interim injunction was granted by the learned trial Judge on 24th September 1960 restraining the respondent from obstructing the petitioner in going through the room on the fist floor for the purpose of having access the second floor with this qualification that the respondent shall be entitled to close the door of his room from 8.00 P.M. to 7.00 A.M. The respondent obeyed the ad interim injunction granted by the trail court up to 2nd October 1960 but on 3rd October 1960 at about 9.00. A.M. when the petitioner wanted to got to the second floor with his carpenter Mistry Triakamal Jeram and two workmen named Kishorilal Pannalal and Jayantilal Keshvalal, he was obstructed in doing so by the respondent through his wife closing the ground floor door of the stair - case leading upto his room on the fist floor. The petitioner thereupon immediately on the next day, that is, 4th October 1960 presented an application to the trail court praying for attachment of the respondent's immovable property and other necessary orders under Order 39 rule 2 sub-Rule (3) of the Code of civil Procedure. The application was contested by the respondent who denied the allegation of the petitioner that the respondent had through his wife obstructed the petitioner in going to the second floor. The trail court, however after considering the affidavits on record came to the conclusion that the allegation of the petitioner was well founded and he accordingly allowed the application and passed the following order:

' The defendant's movable properties to the extent of the vale f Rs. 100 only shall be attached under O. 39, Rule 2 P.C. if he fails to deposit Rs. 100 in Court on 10th April 1961. Defendant to pay cost of this application to the plaintiff '.

The respondent being aggrieved by this order passed by the learned trial Judge preferred an appeal in the District court and this appeal was numbered Appeal No. 23 of 1961. In the meantime the ad interim injunction granted on 24th September 1960 was confirmed by the trail Court by an order dated 29th March 1961 an against this order also an appeal was preferred by the respondent which was numbered Appeal No. 22 of 1962. Both these appeals were heard together and the learned Assistant Judge hearing the appeals came to the conclusion that the injunction was wrongly granted by the trail Court and he accordingly allowed Appeal No. 22 of 1962 and vacated the order of injunction passed by the trial Court and so far as Appeal No. 23 of 1961 was concerned, he observed that since the odder of injunction was vacated, the order attaching the movable property of the respondent for breach of the injunction did not survive and that appeal was also consequently allowed by him. The petitioner thereupon referred Revision Applications against both the orders passed by the learned Assistant Judge. The Revision Application against the order vacating the injunction was summarily rejected by this Court, the Revision Application against the order setting aside the attachment of the movable property of the respondent for breach of the injunction was admitted and that is the present Revision Application which is now before me.

(2) It is obvious that the learned Assistant Judge was in error in setting aside the order made by the trial court under Order 39, rule 2 clause (3) on the ground that the injunction having been vacated, that order did not survive. The ad interim injunction granted by the rail Court on 24th September 1960 was in force on 3rd October 1960 and the respondent was bound to obey the injunction and not to commit a breach of the same and if he disobeyed the injunction or same and if he disobeyed the injunction or committed breach of it, he was certainly liable to be proceeded against under order 39 Rule 2 clause 93) even though the injunction might have been subsequently vacated by the lower appellate Court. So long as the injunction was not vacated by the lower appellate Court, it stood in full force and the respondent to say that the injunction was subsequently vacated by the lower appellate Court. The lower Appellate Court, therefore, even through it vacated the injunction in appeal, was bound to examined whether the order passed by the trail court, therefore, even though it vacated the injunction in appeal, was bound to examine whether the order passed by the trial Court under order 39 Rule 2 Clause 930 was justified on merits. The lower appellate court clearly failed to exercise jurisdiction vested in it by law in setting aside the order of the trail Court under order 39 rule 2 clause (3) on the ground that the said order did not survive in view of the injunction being vacated in appeal. But the question then arises whether the order passed by the trial Court under Order 39, rule 2, Clause (3) was a proper order. Now the finding of fact reached by the trail Court and not set aside by the lower appellate Court was that the respondent had committed a breach of the ad interim injunction by closing the ground floor door of the stair case on 3rd October 1960 and action was therefore undoubtedly liable to be taken against the respondent under order 39 Rules 2 Clause (3) and the only question can be what action was warranted under the terms of order 39 Rule 2 Clause (3) on the facts of the case. There is nothing in the affidavits on record to show that the respondent continue to disobey the injunction since the date of the incident in question and it is, therefore, difficult to see how the trail court could make an order attaching the movable property of the respondent or requiring the respondent to deposit a sum of Rs. 100 if he wanted to avoid attachment of his movable property. It is apparent from the language of order 39. R. 2 Cls. (3) and (4) that the attachment of the movable property of the person disobeying the injunction is ordered under O. 39 R. 2 C1 (3) in case of a continuing disobedience or breach of the injunction an if the disobedience or breach cases within a period, of one year, the attachment also ceases and if the disobedience or breach continues for a period of not less than one year, the applicant can apply to the Court for sale of the movable property attached and the Court would then sell the attached property and out of the sale proceeds pay compensation to the applicant and return the balance to the person entitled to the same. Where there is a solitary act of disobedience or breach of the injunction as in the present case the remedy by way of attachment of property under the first part of O. 39, R. 2 C1 (3) is clearly inapplicable and in such a case the proper remedy would be to detain the person guilty of disobedience or breach in civil prison under the second part of O. 39, R. 2 C1 (3) or to commit him for contempt. There is no doubt that the respondent was guilty of disobedience or breach of the injunction in the present case and was accordingly in contempt and it is, therefore, necessary in the interests of administration of justice that action should be taken against him. But Mr. S.B. Majumdar, learned advocate appearing on behalf of the respondent expressed the penitence of his client and offered on behalf of his client an unconditional apology to the Court for disobeying the injunction and committing a breach of it and requested the court to accept this unconditional apology and not to punish him for contempt. Having regard to the facts and circumstances of the case and also having regard to the fact that no attempt was made on behalf of the respondents to justify his conduct, the ends of justice would be met if the unconditional apology offered by the respondent is accepted. I, therefore, accept the unconditional apology offered by the respondent and direct that in view of the same, no further action need bee taken against him.

(3) There will, therefore, be no order on the Revision Application save and except that the respondent will pay the costs of the petitioner .

(4) Petition dismissed.


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