Govind Sarda vs Sartaj Hotels Apartments And ...
2006 Latest Caselaw 898 Del

JUDGMENT

Manju Goel, J.

1. This petition under Sections 10 & 12 of the Contempt of Courts Act has been filed on 24.5.2004 for initiating contempt proceedings against respondents for having disobeyed the order of injunction under Order 39 CPC dated 21.7.2000 passed by this Court in CS (OS) No. 1593/2000. The CS(OS) No. 1593/00 which was filed in this Court stood transferred to the District Courts pursuant to the notification dated 16.7.2000 enlarging the pecuniary jurisdiction of the District Judge up to Rs. 20 lakhs.

2. The petition is being opposed, inter alia, on the ground that the petition should have been filed before the District Judge/Addl. District Judge in whose court the CS(OS) No. 1593/00 now stands transferred. The only purpose of this order is to decide whether the petition under Sections 10 & 12 of the Contempt of Courts Act is maintainable before this Court or whether the petitioner should rather apply under the provisions of Order 39 Rule 2A of Code of Civil Procedure (in short `CPC') before the District Judge/Addl. District Judge.

3. It is submitted by Mr.V.P.Singh, Senior Advocate, on behalf of the petitioner, that although the provisions of Order 39 Rule 2A CPC provides a remedy against a person flouting an order of injunction passed by the court the jurisdiction of the High Court to take action under Contempt of Courts Act still subsists and, therefore, the petitioner has the option to proceed either under Order 39 Rule 2A CPC or under the Contempt of Courts Act. He has placed his reliance on the judgment of the Full Bench of Madras High Court in the case of Vidya Charan Shukla v. Tamil Nadu Olympic Association and Anr. .

4. There is no dispute that if any action under Order 39 Rule 2A CPC is taken the same will lie before the District Judge/Addl. District Judge before whom the suit is now pending. However, if an action under the Contempt of Courts Act is sought then this Court has the jurisdiction.

5. It is contended on behalf of the respondent that this Court should not entertain the petition in its power to punish for Contempt of Courts Act and that appropriate procedure is the one prescribed under Order 39 Rule 2A CPC. In support of his contention, Mr.Valmiki Mehta, learned senior counsel appearing for the respondents, refers to a D.B. Judgment of this Court in the case of Dr. Bimal Chandra Sen v. Mrs. Kamla Mathur and Anr. 2nd (1982) II Delhi 407. The question that cropped up in that case was squarely whether the High Court should entertain a petition under Sections 10 & 12 of the Contempt of Courts Act for disobedience of an order passed by the District Court or whether the appropriate action should be one under Order 39 Rule 2A CPC. The Division Bench in that case found that although a disobedience of an order of injunction is a contempt of court the proper procedure in such situation is to resort to Order 39 Rule 2A CPC. The court went into the purpose of enacting the Contempt of Courts Act and that of Order 39 Rule 2A CPC and found that the provisions of Order 39 Rule 2A CPC provides adequate remedy to the plaintiff and that the purpose of Contempt of Courts Act is not to prosecute the violators of an order of injunction of a civil court. While doing so the Division Bench went into the opinion of several High Courts in the matter and arrived at the following conclusions:

42. The mere disobedience by a party to a civil action of a specific order of the court made on him in the suit is 'civil contempt'. The order is made at the request and for the sole benefit of the other party to the civil suit. There is an element of public policy in punishing civil contempt, since the administration of justice would be undermined if the order of any court of law could be disregarded with impunity, but no sufficient public interest is served by punishing the offender if the only person for whose benefit the order was made chooses not to insist on its enforcement. [A.G. v. Times Newspapers Ltd. (1973) 3 WLR 298(26) at page 316 per Lord Diplock]

43. All that is at stake in the present case is the private rights of the parties. For defiance of the courts under (sic) the remedy is provided in the Code. It is attachment and detention in civil prison. For deliberate defiance of interim injunctions the court can send the contemner to prison....

6. The Division Bench finally passed the following order:

50. For these reasons I would dismiss the application but make no order as to costs. I make it clear that if the plaintiff desires he may move an appropriate application to the subordinate judge under Rule 2A of Order 39, Code of Civil Procedure for disobedience of the order of injunction. The subordinate judge will decide the application according to law. I say nothing on the merits of the case.

7. In view of the judgment of this Court in Dr.Bimal Chandra Sen's case (Supra) the question raised before me is no more res integra. The proper court to approach is the court before whom the suit at present is pending. The proper provision under which the application is required to be made is Order 39 Rule 2A CPC. Accordingly I dismiss the present petition with no orders as to costs.

8. This order will not preclude the plaintiff/petitioner from applying under Order 39 Rule 2A before the District Judge/Addl. District Judge seeking penal action for violation of order of injunction.