ANAND KUMAR DEEPAK KUMAR Vs. HALDIRAM BHUJIAWALA
LAWS(DLH)-2007-12-107
HIGH COURT OF DELHI
Decided on December 05,2007

Anand Kumar Deepak Kumar Appellant
VERSUS
HALDIRAM BHUJIAWALA Respondents

JUDGEMENT

BADAR DURREZ AHMED,J. - (1.) A preliminary objection has been raised by the learned counsel for the respondents as to the maintainability of these contempt petitions before this Court. The question raised by the learned counsel for the respondents is that there is a specific provision under the Code of Civil Procedure, 1908, which provides the remedy for violation of an interim injunction passed under Order 39 Rules 1 and 2 of the said Code. That remedy is provided by Order 39 Rule 2A. According to the learned counsel for the respondents, the provisions of Order 39 Rule 2A are both remedial and punitive. He submits that in the present case, the contempt petitions have been filed stating that there have been violations of the injunction order passed by this Court on 12.5.1999 in CS (OS) 65/1992. The suit has since been transferred to the District Court in view of the raising of the bar of pecuniary jurisdiction. According to the learned counsel for the respondents, a contempt petition under the Contempt of Courts Act, 1971 does not lie at all and the only remedy for the petitioner is by way of filing an application under Order 39 Rule 2A. He submitted that the contempt petitions, in question, were filed essentially under Sections 10 and 12 of the Contempt of Courts Act, 1971 and under Article 215 of the Constitution of India. Although, the provisions of Order 39 Rule 2A have also been mentioned.
(2.) IN support of his contentions, the learned counsel for the respondents placed reliance on a decision of a learned Single Judge of this Court in Govind Sarda v Sartaj Hotels Apartments and Villas Pvt. Ltd and Ors.: 130 (2006) DLT 460. In paragraph 4 of the said decision, it was observed that there was no dispute that if any action under Order 39 Rule 2A CPC was to be taken the same will lie before the District Judge/Additional District Judge before whom the suit was pending. It was further observed that if an action under the Contempt of Courts Act was sought to be taken, then this Court would have the jurisdiction. The issue before the Court was whether a violation of an injunction order passed under Order 39 Rules 1 And 2 CPC could be remedied and/or dealt with under the Contempt of Courts Act when specific provisions under Order 39 Rule 2A were available. After referring to a Division Bench decision of this Court in the case of Dr. Bimal Chand Sen v. Mr.s Kamla Mathur : 1982 RLR 553, the learned Judge arrived at the following conclusion :- "7. In view of the judgment of this Court in Dr. Bimal Chandra Sen's case (supra) the question raised before me is no more res integra. The proper Court to approach is the Court before whom the suit at present is pending. The proper provision under which the application is required to be made is Order 39 Rule 2A, CPC. Accordingly, I dismiss the present petition with no orders as to costs." Reliance was also placed on Ishwar Industries Ltd. v. The Crocus Chattels Pvt. Ltd and Others: 128 (2006) DLT 10, which is another decision of a learned Single Judge of this Court. The learned counsel referred to paragraph 11 of this decision to indicate that a distinction has been drawn between a contempt which is of a nature where interference with the administration of justice can be spelt out and a contempt which is a mere violation of an order inter-se the parties. Referring to the said paragraph 11, the learned counsel for the respondents submitted that in the former case the provisions of the Contempt of Courts Act, 1971 were attracted whereas in the latter the provisions of Order 39 Rule 2A would have to be resorted to. Reliance was also placed on a decision of a Division Bench of the Karnataka High Court in the case of Rudraiah v. State of Karnataka and Others: AIR 1982 Karnataka 182. Reference was made to paragraphs 5 and 7 of the said decision which read as under :- "5. In cases of disobedience or breach of injunction order passed temporarily during the pendencey of a suit, either under Rule 1 or 2 of Order 39, C.P.C. Action is contemplated by the very court which issues the injunction order under Rule 2A of Order 39, C.P.C. It contemplates the forfeiture of property as also putting of the person who commits breach into civil prison for a period not exceeding three months. The provisions thereunder is obviously based on the principle of contempt of Court. That being so, the general provisions made under the Contempt of Courts Act cannot be invoked by the decree holder, for forcing the party to obey the injunction order. It is a well settled principle of law that when there is special law and general law, the provisions of the special law prevail over the general law and when special procedure and special provision are contained in the C.P.C. itself under Order 39 Rule 2A for taking action for the disobedience of an order of injunction, the general law of contempt of court cannot be invoked. If such a course [is] encouraged holding that it amounts to contempt of court, when an order of subordinate court is not obeyed, it is sure to throw open a floodgate of litigation under contempt jurisdiction. Every decree-holder can rush to this court stating that the decree passed by a subordinate court is not obeyed. That is not the purpose of Contempt of Courts Act. xxxx xxxx xxxx xxxx 7. Hence, we hold that the present petition which is merely directed by way of speedy execution of an interim injunction order, which requires a detailed enquiry with regard to suit land and the scope of the order, which can be entertained and enquired into more properly under Rule 2A of Order 39 C.P.C. cannot [be] entertained under contempt jurisdiction and accordingly we dismiss it."
(3.) FINALLY , the learned counsel for the respondents referred to the decision of a learned Single Judge of the High Court of Allahabad in the case of Smt. Indu Tewari v. Ram Bahadur Chaudhari and Others: AIR 1981 Allahabad 309. He placed reliance on paragraph 3 thereof which reads as under :- "3. It is well settled that the matter of contempt is always an issue between the court and the contemner. No right vests in a private party to get any person punished for contempt. He can only inform the Court of the contempt committed by any person and thereafter it is for the Court to deal with the contemner. The party which informs the Court about the alleged contempt can only assist the Court in coming to the conclusion whether any contempt has been committed or not. As opposed to this, if a person obtains an interim injunction or a final decree for injunction, he gets a right to enforce it. The provision for enforcement of an interim injunction is contained in Order 39 Rule 2-A, Civil P.C. And the provision for enforcement of a decree for injunction is contained in Order 21 Rule 32, Civil P.C. According to the said provision, a person who disobeys an injunction order can be put into prison and his property can also be attached. The attachment can continue for one year and if the party against whom the order or decree is passed refused to comply, the property can even be sold. The orders passed in proceedings under Order 39, Rule 2-A as well as the orders passed in execution proceedings under Order 21 Rule 32 of the Code of Civil Procedure are appealable orders. Further the proceedings under Order 39, Rule 2-A as well as execution proceedings under Order 21, Rule 32 are elaborate proceedings in which the parties can adduce their evidence and they can examine and cross-examine the witnesses. As opposed to this the proceedings under the Contempt of Courts Act are of summary nature. In my opinion, a person who has got an effective alternative remedy of the nature specified under Order 39, Rule 2-A or under Order 21, Rule 32 Civil P. C. shall not be permitted to skip over that remedy and take resort to initiate proceedings under the Contempt of Courts Act. The least that can be said is that it would not be a proper exercise of discretion on the part of this Court to exercise its jurisdiction under the Contempt of Courts Act when such effective and alternative remedy is available to any person. I am fortified in taking this view by the observations made in Ram Rup Pandey v. R.K. Bhargava, AIR 19171 All 231 and Calcutta Medical Stores v. Stadmed Private Ltd. (1977) 81 Cal WN 209). Relying on these two decisions I myself took the same view recently in Abdul Sattar v. Hira Lal (Civil Misc. Contempt Case No. 96 of 1979 decided on 20-2-1981)." 4. Mr. Sethi, who appears on behalf of the petitioner, submitted that the power to punish for contempt of court under the Contempt of Courts Act, 1971, as well as under Article 215 of the Constitution of India is in addition to all other powers that may be available with the Court including those provided under the provisions of Order 39 Rule 2A of the CPC. He submitted that as of now there is no scope for any further argument on this issue inasmuch as the Supreme Court has clearly stated the law in Welset Engineers and Anr. v. Vikas Auto Industries and Ors: 2006 (32) PTC 190 (SC). He referred to paragraph 2 of the said decision which reads as under :- "2. This appeal has been preferred from an order of the High Court of Bombay dismissing the petition filed by the appellant against the respondents for contempt of an interim order passed by the High Court. The petition was dismissed on basically three grounds :- (1) That there was a disputed question of fact involved where it would be necessary to give sufficient opportunity to the parties to lead evidence and cross-examine witnesses in order to come to a definite conclusion whether the interim order had in fact been violated; (2) That order 39 Rule 2 (a) of the Civil Procedure Code (referred to as the Code) was a specific provision to meet the contingency of breach of injunction orders and when such remedies were available, the person complaining of the breach of the injunction order should not be allowed to take up proceedings of contempt of Court; (3) The injunction order was passed at an interim stage and the rights of the parties were still to be adjudicated finally. All three grounds are wholly erroneous." ;


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