- (1.) BY the Court: This Misc. Appeal under Order 43 Rule 1 read with section 151 of CPC has been preferred against the order dated 24.4.2010 passed in Civil Misc. Case No. 13/09 (12/08) by the Addl. District and Sessions Judge (Fast Track) No.3 Jhunjhunu (Head Quarter Nawalgarh) whereby the application filed under Order 39 Rule 2(a) has been rejected. The short facts of the case are that the appellant plaintiff filed a suit for cancellation of sale deed in which an application for temporary injunction was also filed. After hearing the parties, the court below has ordered not to make any change in the disputed property and to maintain status quo but in spite of this order, the respondent started construction work after 13.11.2007. The present appellant moved an application under Order 39 Rule 2(a) of CPC and to prove his contention affidavit and evidence has also been produced in support of his application under Order 39 Rule 2(a) of CPC which has been rejected. Hence the present appeal.
(2.) THE contention of the appellant is that it was amply proved before the court below that the respondent has committed disobedience of the order of temporary injunction , his application has been wrongly rejected. Per contra, the only contention of the respondent is that original suit has already been decided and decreed on 16.7.2009, hence the proceeding under Order 39 Rule 2(a) are not maintainable and reliance has been placed on 2011 (3) ACJ 523 (SC) Kanwar Singh Saini vs High Court of Delhi. Heard learned counsel for the appellant and perused the impugned order. It is not disputed that the original suit has been decreed on 16.7.2009 and when the original suit is decreed, the order of temporary application merged in the final order and it has been held by the Apex Court in the case of Kanwar Singh Saini (supra) as under: "Application under Order XXXIX Rule 2A CPC lies only where disobedience/breach of an injunction granted or order complained of was one, that is granted by the court under Order XXXIX Rules 1 and 2 CPC, which is naturally to enure during the pendency of the suit. However, once a suit is decreed, the interim order, if any, merges into the final order. " "10. In case there is a grievance of non-compliance of the terms of the decree passed in the civil suit, the remedy available to the aggrieved person is to approach the execution court under Order XXI Rule 32 CPC which provides for elaborate proceedings in which the parties can adduce their evidence and can examine and cross-examine the witnesses as opposed to the proceedings in contempt which are summary in nature. Application under Order XXXIX Rule 2A CPC is not maintainable once the suit stood decreed. Law does not permit to skip the remedies available under Order XXI Rule 32 CPC and resort to the contempt proceedings for the reason that the court has to exercise its discretion under the Act 1971 when an effective and alternative remedy is not available to the person concerned. Thus, when the matter relates to the infringement of a decree or decretal order embodies rights, as between the parties, it is not expedient to invoke and exercise contempt jurisdiction, in essence, as a mode of executing the decree or merely because other remedies may take time or are more circumlocutory in character. Thus, the violation of permanent injunction can be set right in executing the proceedings and not the contempt proceedings. There is a complete fallacy in the argument that the provisions of Order XXXIX Rule 2A CPC would also include the case of violation or breach of permanent injunction granted at the time of passing of the decree. "
(3.) LOOKING at the above legal position, the application under Order 39 Rule 2(a) was not maintainable and the court below has rightly rejected the application. There is no force in the appeal and the same is liable to be rejected and is accordingly rejected.;