THAKORLAL PARSHOTTAMDAS BHAVSAR Vs. CHANDULAL CHUNILAL BHAVSAR
LAWS(GJH)-1966-7-11
HIGH COURT OF GUJARAT
Decided on July 06,1966

THAKORLAL PARSHOTTAMDAS BHAVSAR Appellant
VERSUS
CHANDULAL CHUNILAL BHAVSAR Respondents

JUDGEMENT

P.N.BHAGWATI - (1.) There was a dispute between the petitioner and the respondent in regard to the question whether the petitioner was entitled to go through one of the rooms on the first floor let out by the petitioner to the respondent 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 respondent from obstructing the petitioner in going to the second floor through the room on the first 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 ad 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 first floor for the purpose of having access to 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 trial Court upto 2nd October 1960 but on 3rd October 1960 at about 9.00 A.M. when the petitioner wanted to go to the second floor with his carpenter Mistry Trikamlal Jeram and two workmen named Kishorilal Pannalal and Jayantilal Keshavlal 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 first floor. The petitioner thereupon immediately on the next day that is 4 October 1960 presented an application to the trial Court praying for attachment of the respondents 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 trial 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 defendants moveable properties to the extent of the value of Rs. 100/only shall be attached under Order 39 Rule 2 C.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 trial Court by an order dated 29th March 1961 and 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 trial 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 order 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 preferred 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 but 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 trial Court on 24th September 1960 was in force on 3rd October 1960 and she respondent was bound to obey the injunction and not to commit a breach of the same and if he disobeyed the injunction or committed a breach of it he was certainly liable to be proceeded against under Order 39 Rule 2 Clause (3) 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 was bound to obey it and it can be no answer to a breach of the injunction for the respondent to say that the injunction was subsequently vacated by the lower appellate Court. The lower appellate 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 (3) 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 trial 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 trial 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 staircase on 3rd October 1960 and action was therefore undoubtedly liable to be taken against the respondent under Order 39 Rule 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 continued to disobey the in junction since the date of the incident in question and it is therefore difficult to see how the trial 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 Rule 2 Clauses (3) and (4) that the attachment of the movable property of the person disobeying the injunction is ordered under Order 39 Rule 2 Clause (3) in case of a continuing disobedience or breach of the injunction and if the disobedience or breach ceases 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 Order 39 Rule 2 Clause (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 Order 39 Rule 2 Clause (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. Majmudar 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 respondent 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 be 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. Apology accepted.;


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