Karnataka High Court
Smt. T. Geetha vs Sri. Ranganath on 5 February, 2024
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NC: 2024:KHC:4874
WP No. 54219 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
WRIT PETITION NO. 54219 OF 2018 (GM-CPC)
BETWEEN:
SMT. T. GEETHA
W/O V.M. RAMESH BABU @ RAMESH
AGED ABOUT 36 YEARS
RESIDING AT MALLIGE ROAD
1ST CROSS, GOKULA EXTENSION
TUMKUR TOWN, TUMKUR TALUK
& DISTRICT - 572 101
...PETITIONER
(BY SRI: G. BALAKRISHNA SHASTRY, ADVOCATE)
AND:
1. SRI. RANGANATH
S/O CHANNAIAH
AGED ABOUT 48 YEARS
RESIDING AT MALLIGE ROAD
1ST CROSS, GOKULA EXTENSION
TUMKUR TOWN, TUMKUR TALUK
Digitally signed AND DISTRICT - 572 101
by PAVITHRA N
Location: high
court of 2. SRI. H.S. NAVEEN
karnataka
AGED ABOUT 35 YEARS
FATHER NAME NOT KNOWN
POLICE SUB INSPECTOR
JAYANAGAR POLICE STATION
TUMKUR, TALUK AND DIST
TUMKUR - 572 101
3. SRI. RADHA KRISHNA
AGED ABOUT 35 YEARS
CIRCLE INSPECTOR OF POLICE
TILAK PARK CIRCLE, GANDHINAGAR
TUMKUR, TALUK AND
DISTRICT TUMKUR - 572 101
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WP No. 54219 of 2018
4. SRI. NAGARAJ
AGED ABOUT 45 YEARS
DEPUTY SUPERINTENDENT POLICE
TUMKUR, TUMKUR DISTRICT
PIN - 572 101
5. DR. DIVY GOPINATH IPS
AGED ABOUT 36 YEARS
SUPERINTENDENT POLICE
TUMKUR DISTRICT
TUMKUR - 572 101
...RESPONDENTS
(BY SMT: ANUKANKSHA KALKERI, HCGP FOR R2-5
V/O DT:06.12.2018, NOTICE TO R1 IS D/W)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
ORDER DATED 15.11.2018 PASSED BY THE 4TH ADDITIONAL CIVIL
JUDGE AND JMFC TUMKUR REJECTING THE PETITION FILED UNDER
ORDER XXXIX RULE 2[A] OF CPC AS AGAINST THE RESPNDENT
NOS.2 TO 5 IN MISC.PET.NO.37/2017 VIDE ANNEXURE-A
CONSEQUENTLY ALLOWED THE MISC. PETITION AS AGAINST THE
RESPONDENT NOS.2 TO 5 AND CONTINUE THE PROCEEDINGS, AND
PUNISH THE RESPONDENTS TO ACCORDANCE WITH LAW, TRUE
COPY OF THE MISC. PETITION NO.37/2017 IS PRODUCED AT
ANNEXURE-J AND ETC.,
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING
- B GROUP THIS DAY, THE COURT PASSED THE FOLLOWING:
ORDER
The petitioner in Civil.Misc.No.37 of 2017 on the file of
the learned Principal Civil Judge (Jr.Dn.) and JMFC, Tumakuru,
is impugning the order dated 15.11.2018 holding that
Civil.Misc. petition is not maintainable against respondent Nos.2
to 5 and dismissing the same.
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2. Heard Sri G Balakrishna Shastry, learned counsel
for the petitioner and Smt Anukanksha, Kalkeri, learned
counsel for respondent Nos.2 to 5. Perused the materials on
record.
3. Learned counsel for the petitioner submitted that
the plaintiff and defendant share common boundary and the
defendant proceeded to construct the building without leaving
set back. Therefore, petitioner as plaintiff filed the suit OS
No.727 of 2016 against the defendant seeking permanent
injunction restraining him from putting up construction without
leaving set back. The Trial Court granted temporary injunction,
later the same was vacated. The plaintiff approached the
Appellate Court in MA No.11 of 2017 on the file of the learned
II Additional Senior Civil Judge and JMFC, Tumakuru. The said
appeal came to be allowed vide judgment dated 01.09.2017.
Thereby, the temporary injunction was granted in favour of the
plaintiff and against the defendant. In spite of granting
temporary injunction, the defendant proceeded to construct the
building violating the bye laws. Therefore, the plaintiff filed the
application under Section 151 of CPC seeking direction to the
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police to enforce the temporary injunction. The said application
was allowed vide order dated 10.11.2017 and the Sub
Inspector of concerned police station was directed to give police
protection to the plaintiff to implement the order of temporary
injunction granted by the Appellate Court. After securing the
said order, the plaintiff issued several requisitions requesting
the police to enforce the order of temporary injunction granted
by the Trial Court against the defendant. In spite of that, the
police officers in collusion with the defendant permitted him to
construct the building. Thereby, they have disobeyed the order
of the Trial Court. Therefore, the petitioner has filed
Civil.Misc.No.37 of 2017 seeking to take action against the
respondents under Order XXXIX Rule 2A of CPC. In the
meantime, the petitioner had filed Writ Petition Nos.8104-8105
of 2018 seeking issuance of writ of mandamus for similar relief.
4. Learned counsel submitted that when the writ
petitions were pending before this Court, the respondents have
taken up a contention that since Civil.Misc.No.37 of 2017 is
pending before the Trial Court, the writ petitions are not
maintainable. Recording their submissions, the said writ
petitions came to be disposed off. Now when the petitioner
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insisted for taking action in Civil.Misc.No.37 of 2017,
respondents took up a contention that Civil.Misc. petition is not
maintainable. The Trial Court without considering the merits of
the case, proceeded to pass the impugned order only on
maintainability of the petition and dismissed the petition as not
maintainable holding that the only remedy available to the
petitioner is to seek action for contempt of Court.
5. Learned counsel places reliance on the decision of
the Division Bench of this Court in Rudraiah Vs State of
Karnataka and Others1, in support of his contention that
when there are specific provision available under Order XXXIX
Rule 2A of CPC, invoking the contempt jurisdiction is not
permissible. Under such circumstances, the impugned order
passed by the Trial Court is not maintainable. Accordingly, he
prays for allowing the petition.
6. Per contra, learned High Court Government Pleader
opposing the petition submitted that the Civil.Misc. petition filed
by the petitioner was not maintainable, in view of the decision
of the Hon'ble Apex Court in Food Corporation of India Vs
AIR 1982 KAR 182
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Sukh Deo Prasad2, wherein, the Hon'ble Apex Court
specifically held that when there is an order passed under
Order XXXIX Rules 1 and 2 CPC, then only disobedience of such
order would arise for consideration to invoke Order XXXIX Rule
2A of CPC. In the present case, the order passed against the
respondents is under Section 151 of CPC. Under such
circumstances, the petitioner could not have invoked Order
XXXIX Rule 2A of CPC.
7. Learned High Court Government Pleader also
submitted that the respondents have taken an undertaking by
the defendant not to proceed with construction work and
thereby they have obeyed the order passed by the Trial Court.
Hence, there is no question of disobeying any order. Therefore,
she prays for dismissal of the petition.
8. The admitted facts of the case are that, the
petitioner as plaintiff filed suit OS No.727 of 2016 seeking
permanent injunction against the defendant. It is not in dispute
that the temporary injunction was granted in favour of the
plaintiff and against the defendant in MA No.11 of 2017 and the
(2009) 5 SCC 665
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same has reached finality. It is the specific contention of the
petitioner that in spite of granting temporary injunction,
defendant proceeded with the construction work without
leaving set back and therefore, he has filed application under
Section 151 of CPC seeking specific direction to the
respondents. This fact is not in dispute. It is also not in
dispute that the said application was allowed and the direction
was issued to the respondents to give police protection to the
petitioner to enforce the order of temporary injunction granted,
as per order dated 10.11.2017.
9. Now it is the contention of the petitioner that in
spite of such direction, respondents are not ready to give
protection to the plaintiff to enforce the order of temporary
injunction. On the other hand, it is the contention of
respondents that they have made all efforts and got an
undertaking by the defendant not to proceed with the
construction work. But this fact was never considered by the
Trial Court. On the other hand, impugned order was passed on
maintainability of the Civil.Misc case holding that Civil.Misc. is
not maintainable for violation of Order XXXIX Rules 1 and 2 of
CPC.
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10. The Trial Court proceeded to observe that the
petition under Order XXXIX Rule 2A of CPC against respondent
Nos.2 to 5 is not maintainable as they are not parties to the
suit. The Trial Court also observed that violation of Order XXXIX
Rules 1 and 2 is maintainable only against the parties to the
suit and not against strangers. It has also observed that if the
police officer disobeyed the order of the Court, the petitioner
could have initiated contempt of Court proceedings and
therefore, Civil.Misc. is not maintainable.
11. A bare reading of Order XXXIX Rule 2A of CPC
refers to disobedience or breach of injunction by 'any person'.
There is no reference to the parties to the suit, but specific
reference is to 'the person guilty of such disobedience or
breach'. Therefore, the finding of the Trial Court that against
the stranger Order XXXIX Rule 2A cannot be invoked, cannot
be accepted. In the present case, in view of the peculiar facts
and circumstances of the case, the said finding given by the
Trial Court that the remedy of the petitioner is to invoke
contempt jurisdiction cannot be accepted, in view of the finding
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of the Division Bench of this Court in Rudraiah (supra), where
Division Bench has categorically held as under:
"That being so, the general provisions made
under the Contempt of Courts Act cannot be
invoked by the decree holder, for forcing the party
to obey the injunction order. It is a well settled
principle of law that when there is special law and
general law, the provisions of the special law
prevail over the general law and when special
procedure and special provision are contained in
the CPC itself under Order 39 Rule 2A for taking
action for the disobedience of an order of
injunction, the general law of contempt of Court
cannot be invoked. If such a course encouraged
holding that it amounts to contempt of court,
when an order of subordinate court is not obeyed,
it is sure to throw open a floodgate of litigation
under contempt jurisdiction."
12. It is pertinent to note that the petitioner had filed
Writ Petition Nos.8104-8105 of 2018 before this Court seeking
grant of writ of mandamus in the nature of direction to the
respondents. When the said petition was taken up for
consideration by the co-ordinate Bench of this Court, learned
Additional Government Advocate appearing for the respondents
drawn my attention of the Court to the very same
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Civil.Misc.No.37 of 2017 filed by the petitioner which is pending
before the Court. It is contended that the petitioner has already
taken steps by filing application under Order XXXIX Rule 2A of
CPC. Therefore, the writ petition is not maintainable. The said
submission was accepted by the co-ordinate Bench of this Court
in writ petitions and the same came to be dismissed vide order
dated 05.09.2018.
13. Strangely, learned counsel for the respondents
contend that the even Civil.Misc. is not maintainable as there is
no order passed by the Trial Court under Order XXXIX Rules 1
and 2 against the respondents. In support of such contention,
she placed reliance on the decision of the Hon'ble Apex Court in
Sukh Deo Prasad (supra). The facts and circumstances of
the case before the Hon'ble Apex Court was entirely different.
There was no order of temporary injunction granted under
Order XXXIX Rules 1 and 2 of CPC. What was granted is only a
direction to the Food Corporation to deposit the rent payable to
the defendant. Under such circumstances, the Hon'ble Apex
Court formed an opinion that they disobeyed the said direction
to deposit the rent payable to the defendant before the Court
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and therefore, Order XXXIX Rule 2A could not have been
invoked.
14. But in the present case, the facts and circumstances
are very simple and admittedly, there was an order of
temporary injunction granted against the defendant. A direction
was given to the respondents to provide protection to the
plaintiff to implement or to enforce the order of temporary
injunction granted in his favour. Under such circumstances, I
do not find any reason to contend that Civil.Misc. is not
maintainable.
15. I have gone through the impugned order passed by
the Trial Court. The finding of the Trial Court that invoking
Order XXXIX Rule 2A of CPC is only against the parties to the
suit and not against the third parties and that the only remedy
available to the petitioner to invoke contempt jurisdiction is
perverse and illegal and liable to be set aside.
16. Hence, the following:
ORDER
(i) The writ petition is allowed.
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(ii) The order dated 15.11.2018 passed in
Civil.Misc.No.37 of 2017 on the file of the learned Principal Civil
Judge (Jr.Dn.) and JMFC, Tumakuru, is hereby set aside.
(iii) The Trial Court is directed to consider the petition in
accordance with law.
Sd/-
JUDGE
*bgn/-
