Rais Ahmad vs Aizaz Hakik Usmani And 11 Others
2013 Latest Caselaw 7288 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. 40
 
A.F.R.
 

 
Civil Misc. Contempt Application No. 5812 of 2013
 

 
Rais Ahmad			-------				Applicant
 
					Versus
 
Aizaj Hakik Usmani & Ors.	-------				Respondents
 

 
Hon'ble Krishna Murari, J.

Heard Shri B.B. Paul, learned counsel for the applicant.

This application under Section 12 of the Contempt of Courts Act has been filed alleging wilful disobedience of the order dated 26.05.2011 passed under Order 39 Rule 1 C.P.C. granting temporary injunction. A further prayer to prosecute and punish the opposite parties for wilful disobedience of the order dated 08.06.2011 and 13.11.2013 passed by District Magistrate, Kaushambi has also been made.

In so far as wilful disobedience of the orders of the District Magistrate, Kaushambi dated 08.06.2011 and 13.11.2013 are concerned, any disobedience of the same will not constitute a contempt, inasmuch as the said orders have been passed by the District Magistrate on administrative side and not acting as a court and, thus, are not covered under Section 10 of the Contempt of Courts Act. The prayer made in respect of the aforesaid two orders of the District Magistrate is misconceived and, accordingly, stands rejected.

In so far as the violation of the temporary injunction order passed by the Civil Judge is concerned, it is well settled that normally the remedy for violation of temporary injunction granted by civil court lies under Order 39 Rule 2A C.P.C. and the powers conferred by Section 10 read with Section 12 of the Act, are not liable to be invoked. Reference may be made to the judgment of the Hon'ble Apex Court in the case of Food Corporation of India Vs. Sukha Deo Prasad, AIR 2009 SC 2330.

However, Shri B.B. Paul, learned counsel for the applicant submits that the facts of this case are extraordinary, which warrant cognizance by this Court to punish the opposite parties for wilful disobedience.

It has been very vehemently submitted that despite injunction order dated 26.05.2011, private opposite party nos. 1 to 7, who are defendants in the suit, are violating the injunction order and opposite party nos. 8 to 12 are abating the same by not enforcing the order.

It has been orally submitted that the applicant is in possession over the land, which is subject matter of the suit and despite temporary injunction directing status quo and not to raise any construction or to cut the standing crops, the same is being violated. Although a large number of oral assertions have been made asserting that temporary injunction is being violated, but no such averment has been made on oath in the affidavit filed in support of the application. The only allegation has been made in paragraph 13 of the affidavit, which is quoted hereunder.

"That since respondent nos. 4 to 7 of this petition were not abiding the order of the Civil Court dated 26.5.2011, the petitioner was constrained to file an application before the District Magistrate, Kaushambi for compliance of the order of the Civil Court dated 26.05.2011 passed in OS No. 283/2011 pending in the Court of Civil Judge (Junior Division), Kaushambi."

Apart from the above, there is no other allegation contained in the entire affidavit with respect to violation of the order. The applicant has failed to disclose any action or inaction on the part of the respondent nos. 1 to 7 which may constitute a wilful disobedience. Mere assertion that the respondent nos. 4 to 7 were not abiding the order of the civil court without disclosing the details, does not inspire any confidence.

In para 31 of the affidavit, cause of action is said to have been arisen on 18.11.2013. In paragraph 25 of the affidavit, allegations have been made against Shri Shiv Murat Yadav, Station House Officer, P.S. Charwa, district Kaushambi. Since the entire affidavit does not contain any allegation with respect to wilful disobedience by opposite party nos. 1 to 7, contempt application against them stands dismissed.

In so far as opposite party nos. 8, 10, 11 and 12 are concerned, the allegations contained against them are in paragraph 27, which reads as under.

"That in the matter aforesaid, on 25.11.2013, petitioner has also reported said criminal misdeeds of respondent nos. 4 to 7 and 9 to District Magistrate, Kaushambi, Circle Officer, Chail, Kaushambi, Shri Babu Ram, SP Kaushambi, DIG, Allahabad Range, Allahabad, I.G. Allahabad Zone, Allahabad, D.G. Police U.P., Lucknow for suitable legal action against the respondents, but till date nothing fruitful has been heard from them. Copy of application of the petitioner dated 25.11.2013 alongwith acknowledgement of service besides postal receipt is collectively attached herewith Annexure 9 to this affidavit."

Annexure 9 is an application addressed to the Principal Secretary (Home), U.P., Lucknow, Commissioner, Allahabad Range, Allahabad, Director General of Police, Allahabad, District Magistrate, Kaushambi, Superintendent of Police, Kaushambi, Deputy Inspector General of Police, Allahabad and Inspector General of Police, Allahabad making various allegations with a prayer to register a complaint and to take suitable legal action. However, from a perusal of the same, the Court finds that in the said application also allegations have been made against respondent no. 9, Shri Shiv Murat Yadav, S.H.O., P.S. Charwa. Even the application does not contain any allegations against the opposite parties, which can even remotely constitute a violation of the temporary injunction order.

The callousness of the applicant in filing this application is reflected from the fact that D.I.G., Allahabad and I.G. Allahabad have not been impleaded by name.

It is also to be taken note of that the reasons spell out for not approaching the civil court are set out in paragraph 28 of the affidavit, which reads as under.

"That in the back drop of facts referred to above, petitioner had approached his local counsel Shri Mohd. Shafiq Ahmad, for taking action under Order 39 Rule 2A CPC but his counsel has suggested him that as remedy under Order 39 Rule 2A CPC is very slow and lengthy and further that in view of urgency involved in the matter, said remedy may not be efficacious, accordingly petitioner should approach Hon'ble High Court under Section 12 of Contempt of Courts Act, 1971 read with Article 215 of the Constitution of India."

Merely because the applicant has been given legal advise that remedy under Order 39 Rule 2 A is a slow process, will not negate its efficacy.

At this juncture, Shri B.B. Paul, learned counsel for the applicant relying upon the decision rendered in the cases of Ram Rup Pandey Vs. R.K. Bhargava & Ors., AIR 1971 ALL 231, Bathina Ramakrishna Reddy Vs. State of Madras AIR 1952 SC 149 and State of Madhya Pradesh Vs. Revashankar AIR 1959 SC 102 urged that the High Court is vested with the power to punish for contempt.

The proposition is undisputed that High Court is vested with the power not only to punish for its contempt but also for contempt of court subordinate to it.

In the case of Ram Rup Pandey (supra), learned Single Judge of this Court while considering the question has held, that where an application was filed in High Court invoking its powers to punish contemners for disobedience of an order of injunction passed by Subordinate Court, the High Court should not exercise its discretionary jurisdiction under the Contempt of Courts Act in a case where a detailed enquiry could be made under Order 39, Rule 2, sub-rule (3), Civil P.C., by the Court which had passed the injunction order. It was further observed therein that in a case where the contempt is serious and there is an apprehension that the Subordinate Court whose order has been disobeyed may not be able to award adequate sentence, or it may otherwise find itself in difficulties in dealing with the case, High Court may take action under the Act notwithstanding the specific provisions of O. 39, R. 2, sub-rule (3), Civil P.C. But such cases must be exceptional and clear.

The case of State of Madhya Pradesh Vs. Revashankar (supra) relied upon by the learned counsel for the applicant is in respect of a criminal contempt and, thus, has no application to the facts of the present case.

Similarly, the case of Bathina Ramakrishna Reddy (supra) on which reliance has been placed by the learned counsel for the applicant, has no application to the present case, inasmuch as in the said case, issue for consideration was in reference to Section 2 (3) of the Act excluding the jurisdiction of the High Court to punish for contempt of a subordinate court of the acts which were punishable under specific provisions of the Indian Penal Code.

From a sequence of facts narrated hereinabove, it is apparent that the case does not fall within the category of 'exceptional and clear case' for this Court to exercise the jurisdiction conferred by Contempt of Courts Act, as suggested by Shri B.B. Paul.

At this stage, Shri B.B. Paul came up with the request that this civil contempt petition may be converted into criminal contempt and be placed before the appropriate Division Bench or in the alternative leave be granted to file a criminal contempt. The prayer made is only to be rejected. The pleadings do not contain a single averment which may even remotely suggest any criminal contempt, thus, there is no question of converting this petition into a criminal contempt. In so far as alternative prayer is concerned, neither the Court has any advisory jurisdiction to advice the litigant nor any permission from this Court is required for filing a criminal contempt.

In view of above facts and discussions, the present petition is misconceived, and only an attempt by the applicant to put undue pressure not only upon the private respondents, but also the officials of the district and police administration who have been impleaded unnecessarily, without any cause or basis.

Accordingly, the contempt petition stands dismissed.

04.12.2013

VKS