Saadullah Hussaini vs Mohammed Khaja Qutubuddin
2022 Latest Caselaw 309 Tel

  THE HON'BLE THE CHIEF JUSTICE SATISH CHANDRA SHARMA
                                   AND
       THE HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI



               WRIT APPEAL No.38 of 2022
                         AND
 I.A.No.1 of 2022 IN/AND WRIT APPEAL No.43 and 2022

COMMON JUDGMENT: (Per the Hon'ble the Chief Justice Satish Chandra Sharma)

      Regard being had to the controversy involved in the

aforesaid cases, they were heard together and are being

decided by a common judgment.

      The facts of W.A.No.43 of 2022 are reproduced as

under:

      The present appeal has been filed by one Saadullah

Hussaini, who was not a party to W.P.No.973 of 2022 filed by

one Mohammed Ismail Shareef in which the impugned order

has been passed.        The undisputed facts of the case reveal

that the respondent No.1 before this Court has preferred the

writ petition stating that he has filed a suit i.e., O.S.No.2374

of 2021 before the learned VIII Junior Civil Judge, City Civil

Court, Hyderabad, in respect of the suit property and an

application was also preferred under Order XXXIX Rules 1

and 2 of CPC. The trial Court, on 13.12.2021, has passed an

injunction order and the aforesaid fact is not in dispute. The

trial Court, while allowing the said application, has granted

temporary injunction restraining the respondent

therein/appellant herein, their men, agents etc., from

interfering with the peaceful possession and enjoyment of the

plaintiff over the petition schedule property. The undisputed

facts also reveal that an appeal has been preferred in the

matter i.e., C.M.A.No.105 of 2021 and the appeal is pending.

The present appellant was a defendant in the civil suit and

without impleading him as a respondent, the writ petition was

preferred. It was stated before the learned Single Judge that

a complaint has been made to the police on 29.12.2021

requesting the police to implement the order of injunction

dated 13.12.2021 passed by the civil Court and in those

circumstances, the learned Single Judge has directed the

Inspector of Police to take necessary action in respect of the

complaint preferred relating to the order of injunction. In the

complaint, allegations have been made against the appellant

and therefore, his application for grant of leave to file the

present appeal i.e., I.A.No.1 of 2022 in W.A.No.43 of 2022 is

allowed.

The appellant is aggrieved by the direction issued by the

learned Single Judge to the police to ensure implementation

of the injunction order dated 13.12.2021. It is not a case

where the civil Court has passed an order under the

provisions of CPC and they are not being obeyed by the

police. Order XXXIX Rules 1 and 2 of CPC deal with grant of

temporary injunction and there is a remedy under Order

XXXIX Rule 2-A of CPC for disobedience of any injunction.

The same is reproduced as under:

"2-A: Consequence of disobedience or breach of injunction:- (1) In the case of disobedience of any injunction granted or other order made under Rule 1 or Rule 2 or breach of any of the terms on which the injunction was granted or the order made, the Court granting the injunction or making the order, or any Court to which the suit or proceeding is transferred, may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the Court directs his release.

(2) No attachment made under this rule shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues, the property attached may be sold and out of the proceeds, the Court may award such compensation as it thinks fit to the injured party and shall pay the balance, if any, to the party entitled thereto."

In the considered opinion of this Court, in case there is

a breach of injunction order, the remedy was not before the

police, but the remedy was available before the same Court

which has passed the order of injunction.

Learned counsel for the respondent No.1 has placed

reliance upon the judgments delivered in Satyanarayana

Tiwari v. S.H.O.P.S.Santhoshnagar1, Rayapati Audemma v.

Pothineni Narasimham2, P.R.Murlidharan and others v. Swamy

Dharmananda Theertha Padar and others3 as well as the order

passed by a learned Single Judge in W.P.M.P.No.16619 of

2016 in W.P.No.13297 of 2016, dated 20.04.2016.

AIR 1982 AP 394

AIR 1971 AP 53

(2006) 4 SCC 501

This Court has carefully gone through the aforesaid

judgments and is of the opinion that this Court does have the

power to direct the police to take appropriate steps keeping in

view the situation involved in a particular case. But, in the

present case, there is a specific remedy available to the

respondent No.1 in both the writ appeals i.e., under Order

XXXIX Rule 2-A of CPC and therefore, as there is a specific

remedy available, the impugned orders passed by the learned

Single Judge are liable to be set aside. Not only this, the writ

petitioners, without exhausting the remedy as provided under

Order XXXIX Rule 2-A of CPC, have approached the learned

Single Judge.

Therefore, the present writ appeals are allowed and the

impugned orders passed by the learned Single Judge are

hereby set aside. The respondent No.1 in the present appeals

shall certainly be free to approach the civil Court alleging

violation of the injunction order.

The miscellaneous applications pending, if any, shall

stand closed. There shall be no order as to costs.

______________________________________ SATISH CHANDRA SHARMA, CJ

______________________________________ ABHINAND KUMAR SHAVILI, J

28.01.2022 vs