Patna High Court
Kapildeo Upadhya And Ors. vs Raghunath Pandey And Anr. on 17 August, 1977
Equivalent citations: AIR1978PAT212, AIR 1978 PATNA 212
Author: Nagendra Prasad Singh
Bench: Nagendra Prasad Singh
JUDGMENT P.S. Sahay, J.
1. This revision Is directed against the order dated 1-3-1974 passed by the Munsff of Aurangabad, by which the petitioners have been ordered to be detained in civil prison for one month under Order 39, Rule 2 (3) of the Civil P. C.
2. In order to appreciate the point it will be necessary to state some facts. The plaintiffs-opposite party had brought title suit No. 107 of 1973 before the learned Munsif on 11-7-1973 for a declaration that they are the owners and are in possession of plot No. 2059 having an area of 5 decimals of land in mouza Goh in the district of Aurangabad and the petitioners have no right to make any encroachment over the said land. During the pendency of the suit an application was filed by the opposite party for injunction on 12-7-1973 and on the same date petitioners were injuncted from making any construction over the land described above which was served on the petitioners on 15-7-1973. It was alleged by the plaintiff that on 22-7-1973 the petitioners had constructed a wall which was about 1 ft. high from the ground in spite of the fact that order of injunction was served on them. A petition for taking action against the petitioners was actually filed on 24-7-1973 and the petitioners were asked to show cause. The petitioners filed their show cause on 15-9-1973 stating inter alia that there was no valid service of notice and petitioner No. 2 was serving at Darbhanga and petitioner No. 4 was in service at Dhanbad and petitioner 5 was a student studying at Gaya. The learned Munsif examined witnesses and after hearing both parties held that the petitioners had deliberately disobeyed the order of the court in spite of the order of injunction had been served on them and directed that they should be detained in civil prison for one month. Being aggrieved by the aforesaid order the petitioners and Rambriksha Upadhya preferred an appeal which has been dismissed by the Additional Subordinate Judge 1st Court, Gaya, on 23-2-1975. A petition under Section 115 of the Code of Civil Procedure was filed on behalf of the petitioners against the order of the learned Subordinate Judge and in that application the name of Rambriksh Upadhya was expunged.
3. This matter was placed before the learned Single Judge of this Court who has referred it to the Division Bench and that is how !t has been placed before us. From the aforesaid order it seems that a point was raised on behalf of the petitioners that no order for sending a person in civil prison can be made unless the land is attached which according to the learned counsel is a condition precedent. It would be better to quote Order XXXIX Rule 2 (3) which runs thus :
"In case of disobedience, or of breach of any such terms, the Court granting an injunction 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 six months, unless in the meantime the Court directs his release."
Reading the aforesaid provision it is clear that it is discretionary for the court either to attach the land or to direct the person concerned to be detained in civil prison. This view is supported by the decision in State of Bihar v. Rani Sonabati Kumari (AIR 1954 Pat 513) where disobedience of the order was made by the State. Their Lordships after considering a number of decisions held that the State was also liable for contempt of court for having deliberately disobeyed the order of injunction passed against them, and it was further held that two modes of punishment namely attachment and detention in civil prison are the only alternatives. This decision has been affirmed by the Supreme Court in State of Bihar v. Rani Sonabati Kumari (AIR 1961 SC 221). Our attention was drawn to a recent decision of the learned Single Judge of our own High Court in Nawal Kishore v. Rajendra Pd, Singh (AIR 1976 Pat 56) in which it has been held as follows : (at p. 57) ".....The court granting injunction 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 ....." Reading the relevant provision of Sub-rule (3) in my opinion, US is difficult to accept this contention raised on behalf of the petitioners that in case of disobedience, it is always mandatory for the court to order for detention of the guilty person in civil prison. As a matter of course the first punishment or the direction that has been indicated in Sub-rule (3) for the disobedience in question Is the attachment of the property of the guilty person."
This seems to be the correct view and completely answers the point which has been raised on behalf of the petitioners. Thus on a careful consideration and the submission raised on behalf of the petitioners I am of the opinion that the order of the learned Munsif is correct and does not call for any interference.
4. Mr. Prasad has then urged that the detention in civil prison for a period of one month is rather harsh. From the allegations made in the petition filed on behalf of the plaintiff-opposite party it is clear that the wall only 1 ft. high was raised from the ground. In my opinion, the detention of the petitioners in civil prison for a period of fifteen days will be sufficient.
5. In the result the application fails and dismissed subject to the modification made earlier. In the circumstances of the case there will be no order as to costs, Nagendra Frasad Singh, J.
6. I agree.