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Shyam Sundar Rakshit Vs. Satchidananda Rakshit and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.A.O. No. 51 of 1954
Judge
Reported inAIR1955Cal351
ActsCode of Civil Procedure (CPC) , 1908 - Order 39, Rules 1, 1(2), 2 and 2(3)
AppellantShyam Sundar Rakshit
RespondentSatchidananda Rakshit and anr.
Appellant AdvocateBhabesh Chandra Mitter, Adv.
Respondent AdvocateBenoyendra Prosad Bagchi and ;Tarun Kumar Banerjee, Advs.
Cases ReferredKrishnapur Mutt v. Vicar of Suratkal Church
Excerpt:
- .....pay the costs of the present proceedings to the opposite parties which i assess at the consolidated figure of ten gold-mohurs (rupees one hundred and seventy). these costs must be paid to the opposite parties or deposited to their credit in the trial court within six weeks from this date. in default, the petitioner's present application under section 115 of the code will stand dismissed with costs, hearing-fee being assessed at three gold-mohurs, and the orders of the two courts below, complained of herein, will stand affirmed in their entirety. 13. the application is allowed as above. therewill be no order as to costs except as stated hereinbefore.
Judgment:

P.N. Mookerjee, J.

1. This second miscellaneous appeal and the alternative application arise out of a proceeding for punishing breach of an injunction, issued under Order 39 Rule 1, Civil P. C. The proceeding was initiated by an application which was headed as one under Order 39 Rule 2(3) of the Code but which should have been properly described as one under Order 39 Rule 1(2) as applying to this part of the country. This sub-rule was added by this Court in the exercise of its rule-making powers under the Code to remove doubts as to the mofussil courts' power to take action under Order 3 in case of breach of injunction, issued under the First rule of that Order.

2. There can be no doubt that the second miscellaneous appeal is incompetent in law. The code provides for one appeal in such a case and there is no provision for a further appeal to this Court from an appellate order of the District Court. The appeal must, therefore, fail on this preliminary ground and it is dismissed without costs.

3. There is, however, an alternative application under Section 115, Civil P. C. It is necessary, therefore, to consider whether the appellant petitioner should have any relief under the revisional powers of this Court in the facts and circumstances of the present case.

4. On the materials before the court, there can be little doubt that there has been a breach of the 'ad interim' injunction, issued by the learned Munsif on 4-4-1953. That injunction was issued, re straining the appellant petitioner from proceeding with pucca construction work in the disputed property. The suit was for a permanent injunction to restrain the defendant (who is the appellant before me) from constructing permanent structures in the disputed land. In the suit the plaintiff, who is the respondent opposite party this Court, applied for an appropriate temporary junction and the court issued a Rule 'Nisi' with 'ad interim' injunction. The notice to show can along with the notice of temporary injunction were, duly served on 5-2-1953, at about 5 p.m. But, thereafter, some further pucca construction work appears to have been done. There is dispute as to the nature and extent of this construction but, on the materials before me, there can be no question that some pucca construction was made after the service of the injunction order. Clearly therefore, the appellant petitioner was guilty (sic) breach of an injuction order, issued under Order 3(sic) Rule 1 of the Code, the question is whether the breach is punishable in law and, if so, what punish ment should be inflicted upon him.

5. I am unable to accept Mr. Mitter's extreme contention that, where the injunction is issued under Order 39 Rule 1 ' of the Code, its breach is not punishable under, the provisions of that Order and, accordingly, the plaintiff's application under Order 39 Rule 2(3) should have been dismissed. This argument is based on the theory that Rule 2(3) is a part of Rule 2 and its opening words where they refer to 'such terms' must, in the context, in which they appear, refer to Rule 2(2) which again uses the words 'such injunction', thus obviously referring to the injunction, issued in a proceeding under the preceding Sub-rule (1) of Rule 2, and it is contended that Order 39 Rule 2(3) would not apply to case of injunction other than those under Rule 2 an would not, therefore, apply to injunctions, issued under Rule 1, and, accordingly, the respondents' application under that statutory prevision, Order 39 Rule 2(3), ought to fail.

6. The contention is undoubtedly supported by the Allahabad decisions in the eases of -- 'RamPrasad Singh v. Benares Bank Ltd,' AIR 1919 All 20 (A); -- 'Balbhaddar v. Balla AIR 1930 All 387 (2) (B); -- 'Janak Nandini Kunwari v. Kedar Narain Singh : AIR1941All140 , but it is opposed to the view of the Patna High Court(Vide -- 'Jang Bahadur Singh v. Chhabila Koiri', AIR 1936 Pat 23 (D); -- 'Hakim MuhammadNaziruddin v. Raja Ram', AIR 1935 Pat 274 (E)and -- 'Sita Ram Sahu v. Lachmi Narain', AIR1946 Pat 47 (F)) and also of the Madras High Court(Vide -- 'Adaikkala Thevan v. Imperial Bank,Madura Branch', AIR 1926, Mad 574 (G) and --'Krishnapur Mutt v. Vicar of Suratkal Church',AIR 1918 Mad 340 (H)).

7. On the wording of the statute, namely, Sub-rule 2(3) of Order 39, read in the light of the other provisions of that Order and Section 94, there is much to be said in favour of either point of view but, in view of the amendment, made by this Court in Order whereby provisions, almost similar to Order 39 Rules 2(3) and 2(4), have been added to Rule 1 Sub-rules (2) and (3), it is unnecessary to examine the conflict any further for purposes of the present case. I may point out further that, in Allahabad too, the two sub-rules, viz., Sub-rule (3) and (4) of Rule 2 of Order 39 have been replaced by a similar but separate and independent and morecomprehensive Rule 2A which specifically applies toboth Rules 1 and 2 of the Order. (8) The newly added Sub-rule (2) of this Court in Order 39, Rule 1, directly applies to the present case and, under it, the court has ample powers to take action, similar to that, contemplated by the original Rule 2(3) in cases of breach of injunctions, issuedSunder Rule 1. The only defect that appears in the plaintiff's application is in its heading which mentions Order 39 Rule 2(3) in place of Order 39 Rule 1(2), butthat is hardly of any importance. I, accordingly, over-rule Mr. Milter's contention in support of his client's claim for immunity or total exemption from punishment.

9. On the question of punishment, the courts below appear to have taken a very strict view. They have directed attachment of the defendant- petitioner's properties for a period of one year andsale of the attached properties for payment of compensation to the plaintiff opposite party if thebreach of injunction continues beyond the said period of one year. They have also directed detention of the defendant-petitioner in civil prison for two weeks. I am not, however, inclined to affirm this part of the courts' order in its entirety in the facts and circumstances of this case and I would modify it in the manner indicated below, of course, an terms which I shall presently indicate.

10. The petitioner is undoubtedly guilty of abreach of the order of injunction, and he deservessome punishment. It is to be remembered, however, that the punishment should be primarily for upholding the dignity of the court and maintaining due respect for the administration of justice. There should be no element of vindictiveness in it and it should not be allowed to be used for feeding fat private grudge or as an offensive weapon to satisfy private vendetta.

11. The petitioner is a young L. M. F. doctor. He is a family man and, on his statement before me, he appears to be the only earning member ofthe family. He has aged parents, a number ofchildren and a younger brother to maintain. He has tendered unqualified apology before me and has repented his past action which, he says, was never intended to flout the court's order, or to show disrespect to the authority or rule of law. I feel further that there was a good deal of bitterness between the parties which lies at the bottom of the present proceedings and that these proceedings were, to some extent, the outcome of an innate desire to humiliate the petitioner in the public eye. This has come out very clearly on the surface by the opposite party's vigorous insistence in this Court to support, in particular, the order for detention. In the above context, I would set aside the order of detention, passed by the two courts below. The order of attachment of the petitioner's properties will stand. But the further order, of sale of the properties and payment of compensation to the opposite party would also be set aside.

12. The petitioner, however will pay the costs of the present proceedings to the opposite parties which I assess at the consolidated figure of ten gold-mohurs (Rupees One hundred and seventy). These costs must be paid to the opposite parties or deposited to their credit in the trial court within six weeks from this date. In default, the petitioner's present application under Section 115 of the Code will stand dismissed with costs, hearing-fee being assessed at three gold-mohurs, and the orders of the two courts below, complained of herein, will stand affirmed in their entirety.

13. The application is allowed as above. Therewill be no order as to costs except as stated hereinbefore.


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