- (1.) K. D. Shahi, J. This petition has been filed under Section 10/12 of the Contempt of Courts Act, 1971 to take action against the respondents for disobedience of the order of injunction passed by the Civil Judge (Senior Division), Allahabad, in Original Suitno. 58of 1997-Chhotey Lal and others v. Hari Shanker Tiwari and others. It is stated that the learned Civil Judge, Allahabad, al lowed application 6-C for injunction and restrained the defendants from transferring the land in dispute in favour of any other person than the plaintiff. It is further stated that in the teeth of this injunction order the land in dispute is being transferred or has been transferred.
(2.) THERE is specific provision under Section 39 Rule 2 (A) of the Code of Civil Procedure for taking action for dis obedience of the injunction order. The property of the respondents may be at tached or they may be sent to prison. The Civil Judge has got ample power to get his order enforced. The learned counsel for the petitioners argued that under Article 215 of the Constitution of India, this Court has also power to take action against the respondents for disobedience of the injunc tion order passed by the Civil Judge. In support of his contention, learned counsel referred to a decision reported in 1964 AWR 127 Smt. Shyamraji v. Smt. Samrathi and others, where it has been observed that for disregard of the interim injunction order the party can be punished under Order 39 Rule 2-A C. P. C. and also under the Con tempt of Courts Act. Learned counsel for the petitioners further argued that since the jurisdiction is concurrent, the petitioners can apply in this Court as well for taking action against the respondents for disobedience of the injunc tion order passed by the learned Civil Judge. He relied upon a ruling reported in 1973 ALJ page 180 State v. Sri S. N. Dikshit. This was a matter pertaining to criminal con tempt, inasmuch as Section 2 (c) of the Con tempt of Courts Act, 1971 has been dis cussed in the aforesaid decision. Since the contempt alleged in the instant case of civil nature, hence the aforesaid decision has no application to the facts of the present case.
(3.) A direct case law on the subject is reported in 1985 All. L. J. page 30 Anis Ahmad Khan and another v. State of Uttar Pradesh and others wherein it has been held that; "where the question of 'same remedy' by way of contempt action is involved, the power and authority to be exercised by this Court under the Contempt of Courts Act to initiate contempt proceedings against the alleged contemner is dis cretionary. The applicant has no vested right to claim that the contemner must be punished. The applicant brings the facts to the knowledge of the Court and points out how the Contempt of Court has been committed. Thereafter the matter is merely between the Court and the contemner. Here comes in the discretion of this Court whether to proceed or not against the alleged contemner. " It ha-- further been held that:- "provisions of Order 39, Rule 2-A are not merely instruments to enforce the injunction order but are also punitive in nature. Thus their scope is dual i. e. enforcement plus punishment. Hence the High Court refused to initiate con tempt proceedings in view of availability of remedy under Order 39, Rule 2a even where the party prohibited to alienate the property by order of injunction alienated it during the pendency of order of injunction. " Before parting with the decision in Anis Ahmad Khan's case (Supra), Hon'ble I. P. Singh, J, quoted with approval certain observations from the Commentaries "k. J. Aiyar's law of Contempt of Courts, 6th Edi tion, 1983:- "section 10 of the Contempt of Courts Act, 1971 no doubt invests the High Court with ample powers to take cognizance of such contempt com mitted with regard to the Courts, subordinate to the High Court, which in an appropriate case may be exercised. But that does not mean that in each and every case of such an alleged contempt the High Court should exercise such powers, allowing the same to be used as a convenient substitute for the specific remedies otherwise provided by law. Violation of an order of injunction constituting disobedience to an order of a court, subordinate to the High Court, if fulfilled may constitute civil contempt as defined by the Act and the High Court may also be invested with powers to take action for such contempt. But civil contempt is by its very nature remedial, the primary object being to enforce the order for the benefit of the party in whose favour the order had been made. Such being the nature of civil contempt it would be reasonable to think that where the law otherwise specifically provides a remedy for breach of such order as also the means for its enforcement the parties must normally avail of such remedies and the High Court should not encourage by passing such remedies by initiating proceedings under the Contempt of Courts Act" (Calcutta Medical Store v. Stadmed Pvt. Ltd. (1971) 81 Cal WN 209 at p. 210 ). Of course, in the above observation remedial aspect is given stress but as already dis cussed above the 'punishment aspect' is also there. At any rate, the above observation lay em phasis on the point that where alternative remedy is specifically provided by law the parties must normally avail themselves of such remedies and the High Court should not encourage by passing such remedies by initiating proceedings under the Act. " I am in respectful agreement with the view taken by Hon'ble I. P. Singh, J. in Annis Ahmad Khan's case (Supra ).;