Shri Partap Singh And Ors. vs Smt. Chanderwati
2006 Latest Caselaw 1396 Del

JUDGMENT

Sanjay Kishan Kaul, J.

CM No.11326/2006

1. Allowed subject to just exceptions.

2. The respondent had filed a suit for permanent and mandatory injunction seeking a restraint order against the petitioner from forcibly dispossessing her out of the disputed property E-35, Ashok Nagar, Kachi Colony, OPP. DDA Flat/Plot, Near Nand Nagri, Delhi. Along with the suit an application for interim relief had been filed and interim orders were granted in favor of the respondent (original plaintiff). The respondent was dispossessed despite the same.

3. A decree was passed on 28.2.2000 after trial in the suit and the SHO of the local police station was directed to put back the respondent in possession. The judgment and decree also dealt with the aspect of the petitioners being guilty of breach of restraint order granted by the Trial Court on 16.1.1991. The compensation was directed at Rs. 500/- per month amounting to Rs. 54,000/- and the petitioner was directed to go through civil imprisonment of one month.

4. The appeal filed against this order was dismissed by the learned District Judge. The second appeal filed before the Delhi High Court and the Special Leave Petition before the Supreme Court were also dismissed.

5. The respondent thereafter filed the execution proceedings since though the possession had been restored with the assistance of the local police the amount of damages was still not paid. It is in the execution proceedings that the amount was recovered.

6. The petitioners filed an application under Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as the said Code) stating that insofar as the order of detention in civil prison is concerned, the same was punitive in nature and was not executable. This application has been dismissed by the impugned order dated 4.8.2006. The petitioners aggrieved by the same have filed the present proceedings under Article 227 of the Constitution of India.

7. Learned Counsel for the petitioner has contended that the object of the provisions of Order 39 Rule 2A of the said Code is to seek enforcement of an order and not to be punitive. It is submitted that in view thereof not only the possession has been restored to the respondent but even the damages for the period of dispossession have been paid in the execution proceedings and thus there should be no question now of the petitioner to be detained in a civil prison. Learned Counsel also contends that really speaking the provisions of Order 39 Rule 2A of the said Code had to be invoked during the pendency of the suit and not that the same should form a part of the final decree. It is, thus, submitted that even though both the orders were passed on the same day, the order passed on an application under Order 39 Rule 2A of the said Code really does not form part of the decree and is thus not enforceable as such.

8. Learned Counsel for the petitioner referred to the Division Bench judgment of this Court in Dr. Bimal Chander Sen v. Mrs. Kamla Mathur and Anr. where the distinctions between civil contempt and criminal contempt were pointed out. It was held that a civil contempt of court exists to provide the ultimate sanction against a person who refused to comply with the order of a properly constituted court. This is distinct from the jurisdiction in respect of criminal contempt, which is penal in nature, the aim being to protect the public interest in ensuring that the administration of justice is duly protected.

9. Learned Counsel also referred to the views expressed by the learned single Judge of the Allahabad High Court in Sitaram v. Ganesh Das . It was observed in para 4 as under:

4. The purpose of Order 39, Rule 2-A, Civil P.C. is to enforce the order of injunction. It is a provision which permits the Court to execute the injunction order. Its provisions are similar to the provisions of Order 21, Rule 32, Civil P.C. which provide for the execution of a decree for injunction. The mode of execution given in Order 21, Rule 32 is the same as provided in Rule 2-A of Order 39. In either case, for the execution of the order or decree of injunction, attachment of property is to be made and the person who is to be compelled to obey the injunction can be detained in civil prison. The purpose is not to punish the man but to see that the decree or order is obeyed and the wrong done by disobedience of the order is remedied and the status quo ante is brought into effect. This view finds support from the observations of the Supreme Court in the case of State of Bihar v. Sonabati Kumari : while dealing with Order 39 Rule 2 (iii). Civil P.C. (without the U.P. Amendment) the Court held that the proceedings are in substance designed to effect enforcement of or to execute the order and a parallel was drawn between the provisions of Order 21 Rule 32 and of Order 39, Rule 2 (iii) C.P.C. which is similar to Order 39, Rule 2-A. This curative function and purpose of Rule 2-A of Order 39 Civil P.C. is also evident from the provision in Rule 2-A for the lifting of imprisonment, which normally would be when the order has been complied with and the coercion of imprisonment no longer remains necessary. Hence, even if Sitaram had earlier been sent to the civil imprisonment he would have been released on the tinshed being removed and it would therefore now serve no purpose to send him to prison. For the same reason the attachment of property is also no longer needed. The order of this Court below has lost its utility and need no longer be kept alive.

10. Learned Counsel lastly relied upon the observations of the Apex Court in Smt. Pushpaben and Anr. v. Narandas V. Badiani and Anr. . It has been observed that the sentence of fine alone should be imposed in proceedings under normal circumstances under the Contempt of Court Act, 1971 though a special power has been conferred on the Court to pass a sentence of imprisonment if it thinks that ends of justice so require. Thus before a Court passes the extreme sentence of imprisonment, it must give special reasons after proper application of its mind that a sentence of imprisonment alone is called for in a particular situation.

11. In the end learned Counsel for the petitioner submits that the impugned order and the detention of the petitioner in civil prison would have serious consequences on two of the petitioners, who are serving in the police and the same would have an effect on their service.

12. I have given considerable thought to the contention advanced by learned Counsel for the petitioner. There can be no doubt that the object of Order 39 Rule 2A of the said Code is to ensure due compliance of the order passed by the Court. A Court is hesitant in imposing the extreme penalty of sentence and the endeavor is always to see that so long as the orders of the Court are complied with this extreme step may not be resorted to. This is also the theme of the judgments referred to by learned Counsel for the petitioner.

13. The particular facts of this case show that two of the petitioners are police officials. One of them is a retired Government official. The duty cast on such persons to comply with the orders of this Court is more onerous than those persons who are not familiar with the legal position. The petitioners have been in breach of such duty.

14. The illegality of the action of the petitioners resulted in depriving a lady of her house and for nine years she was out of her residence. No doubt ultimately in view of the orders being sustained by the Supreme Court she was put back in possession and the damages imposed by the Trial Court have also been paid. The moot point, however, remains whether the order of detaining the petitioners in civil prison should be interfered with. In my considered view the answer to this question is in the negative.

15. The order imposing the sentence on the petitioners was passed on the same date as the decree was passed. This decree was sustained right up to the Supreme Court. The challenge by the petitioner was thus naturally to all the aspects of the order/decree, which was passed on 28.2.2000. The result is that insofar the order of the petitioners being detained in civil prison is concerned the same has been affirmed right till the Apex Court. In such a situation this Court does not really have jurisdiction to interfere with the enforcement of that sentence. If at any stage any of the Courts in the hierarchy were of the view that the aspect of detention of the petitioners in civil prison required the same to be interfered with it could have done so. This did not happen.

16. I am thus of the considered view that the request made by the petitioners vide the application which had been rejected in terms of the order dated 4.8.2006 could not have been sustained and it cannot be said that the Trial Court has committed a patent error or erroneously exercised jurisdiction so as to call for interference by this Court under Article 227 of the Constitution of India.

17. In the end I am constrained to observe that the incidents of Court's orders being taken lightly and parties thinking that they can get away with the violation of the Court's order has increased at an alarming proportion. A firm hand is required to put down such tendencies and to ensure that the majesty of law is upheld. Two of the petitioners being police officials have a duty to assist in the upholding of the majesty of law. Instead of protecting the majesty of law they have violated the same. Thus on that account also no indulgence is liable to be shown.

18. Dismissed.

19. At this stage learned Counsel for the petitioner states that a review application has already been filed before the Supreme Court and the petitioner seeks to impugn the present order and the order may not be enforced for a period of 15 days from today. Prayer granted.

CM No.11325/2006

20. Dismissed.

21. dusty to learned Counsel for the petitioner.