Delhi District Court
Smt. Prem Lata & Another vs Sh. Ram Charan Aggarwal & Another on 18 January, 2012
IN THE COURT OF SH. LOKESH KUMAR SHARMA, JSCCCUM
ASCJCUMGUARDIAN JUDGE (WEST): DELHI
Suit No. 2174/08
Unique Case I.D. No. 02401C1176502008
Smt. Prem Lata & Another ...........Plaintiffs
Versus
Sh. Ram Charan Aggarwal & Another .........Defendants
Date of filing of the application : 05.02.2009
Date of reserving order : 17.01.2012
Date of pronouncement of order : 18.01.2012
O R D E R
1. Vide this order I shall dispose of the application filed on behalf of the plaintiffs under Order 39 Rule 2A CPC. Briefly stated the facts necessary for the disposal of the present application are given here as under:
2. The plaintiffs have filed the present suit for a decree of permanent injunction against the defendants in respect of one ground floor shop bearing municipal no. 1375 situated at Gali Leshwa, Chandni Chowk, Delhi110006 built upon an area of 300 sq. yds. which was stated to have been purchased by them from erstwhile owner vide Suit No. 2174/08 Page No. 1/11 registered lease deed dated 25.05.1998 registered as document no. 2889 in Additional Book No. 1, Vol. No. 7806 from pages 112 to 119 dated 25.05.1998. The respondent/Contemnor no. 1 was stated to be a partner of the firm M/s. Lalji Mal Tikka Ram to whom the suit property was let out by the previous owner vide rent agreement dated 06.04.1935. The said firm comprised of three partners, namely, Sh. Ram Gopal Aggarwal S/o Late Lala Ganeshi Lal (husband of the plaintiff no. 1 and father of the plaintiff no. 2), Sh. Ram Charan Aggarwal (defendant no.1) and Late Sh. Ganeshi Lal who had expired on 09.10.1981, after which disputes arose between both the brothers i.e. the husband and father of plaintiffs as well as the defendant no.1 herein and several litigations were filed by them against each other at Delhi as well as at Hon'ble Bombay High Court and finally a compromise was arrived between the parties, after which the tenancy rights of the suit shop had fallen in the share of the defendant no.1 whereas the remaining rights, title and interest in the immovable property had remained unaffected in favour of the plaintiffs and since the plaintiffs apprehended a threat of raising unauthorized and illegal construction, additions or alterations in the suit property, hence, the present suit was filed by them praying therein that by way of a decree for permanent injunction passed in favour of the plaintiffs and against the defendants, the defendants herein be restrained from carrying out any construction or making any additions or alterations in the suit shop and also be further restrained from subletting the shop or any part thereof to any third person without written consent of the plaintiffs.
Suit No. 2174/08 Page No. 2/11
3. Summons of the suit were issued along with notice of the application under Order 39 Rule 1 and 2 CPC to the defendants, who were duly served with the same and had also appeared in the Court through their Counsel one Ms. Shalini Kapoor, Advocate and had made a statement through Ld. Counsel on 13.10.2008 that they shall not part with the possession of the suit premises or shall carry out any addition or alteration in violation of the law of land till next date of hearing i.e. 07.01.2009. On 07.01.2009, since the Ld. Presiding Officer of this Court was on leave, hence the matter was adjourned for 26.03.2009.
4. However, as per the contents of the application under disposal, on 31.01.2009 at about 12 O'Clock Noon, the plaintiffs came to know about the said act of the defendants, whereby they were raising unauthorized construction in the suit property without their consent and knowledge and also in violation of the building bye laws and law of land in contravention and utter violation of their own undertaking given before the Court through their Counsel on 13.10.2008. The defendants immediately rushed to the Court and filed an application under Order 26 Rule 9 CPC along the present application. On the aforesaid application filed before Ld. Predecessor of this Court, vide order dated 07.02.2009, Local Commissioner was appointed in this case with the directions as contained in the said order. Ld. Local Commissioner visited the spot and filed his report along with certain photographs, which also formed part of the record.
Suit No. 2174/08 Page No. 3/11
5. In the light of the aforesaid facts and circumstances, it has been contended by the plaintiffs herein that gross violation of their own undertaking by the defendants stands duly established on record and hence, they are liable to be punished under the provisions of Order 39 Rule 2A CPC.
6. Notice of the application was served upon the defendants and they had also appeared to contest the same on merits and had preferred to rely upon their submissions made in their written statement as well as in the reply to the application filed under Order 39 Rule 1 and 2 CPC and had taken the stand that Sh. Ram Gopal took an unfair and undue advantage of being in possession of the suit shop and had persuaded its previous owner to sell the same in the name of his wife and son and no illegal construction or additions or alterations were carried out by them and when they took over the possession of the rented premises, it was in the condition of a total mess as the floor was damaged at many places and there were no water supply in the suit premises, even the manhole cover of sewer line was missing and the sewer was also fully exposed. It was also stated that plaster was also coming out from various walls and ceiling beams also had come off at some places, doors were also stated to be in dilapidated condition and premises as such was not fit for being used and required immediate repairs in order to make it habitable.
7. It shall also be worthwhile to mention here itself that after appointment of Local Commissioner vide his orders dated 12.02.2009, Ld. Predecessor of this court was pleased to direct the Suit No. 2174/08 Page No. 4/11 defendants to stop carrying out any further construction in the suit premises with immediate effect till the time, the application under Order 39 Rule 1 and 2 read with Section 151 CPC was finally disposed of by the Court, which was disposed of vide detailed order dated 28.02.2009. However, the said order was challenged by the defendants herein before the Court of Ld. ADJ, Delhi which was listed as MCA No. 14/09 and vide orders dated 02.06.2009, Ld. ADJ was pleased to allow the appeal and set aside the impugned order dated 28.02.2009. Against the said order, the present plaintiffs herein had also preferred an appeal before Hon'ble High Court of Delhi bearing No. CM (Main) 573/09, which was disposed of by Hon'ble Mr. Justice Vipin Sanghi, J. vide his lordship order dated 02.07.2009.
8. Similar contentions have also been raised before this Court by both the respective parties as were the bone of contention before the Ld. Predecessor of this Court as well as before Ld. ADJ.
9. Sh. S.D. Dixit, Ld. Counsel appearing for the plaintiff has drawn my attention to the report of Ld. Local Commissioner as well as photographs filed along with the same depicting some Malba as well as floor in a completely dugged condition and it has been stated that by digging up the floor, the defendants herein have definitely tried to alter the condition of the suit property in violation of their own undertaking given before the Court and hence, were liable to be punished under Order 39 Rule 2 A CPC.
Suit No. 2174/08 Page No. 5/11
10.Sh. Deepak Gupta, Ld. Counsel appearing for the respondent has drawn my attention to the provisions of Order 39 Rule 2A CPC, which is reproduced herein for the sake of convenience:
"2A. 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."
11.In the light of aforesaid provisions, it has been submitted on behalf of the defendants that to hold a person guilty under Order 39 Rule 2A CPC, there must be an injunction order in existence which admittedly was not there in any form or manner whatsoever till 12.02.2009 when the defendants were temporarily restrained from raising any construction by Ld. Predecessor of this Court. Hence, it has been submitted that in the absence of any injunction as on the date of act allegedly carried out by the defendants herein, which simply meant to carry out just repairs of the suit property in order to make it habitable under law hence any liability under Order 39 Suit No. 2174/08 Page No. 6/11 Rule 2A CPC cannot be fastened upon the defendants and even if it is presumed for the sake of arguments that the defendants were guilty of violation of their own undertaking given before the Court, then also the remedy available with the plaintiffs would not fall under this provision but it would amount to a civil contempt to be tried and decided by Hon'ble High Court of Delhi, which remedy the plaintiffs herein had miserably failed to resort to. Further, it has been submitted that the observations made by the Superior Courts are binding upon this Court and once the impugned order dated 28.02.2009 itself had been set aside by the Court of Ld. ADJ, then there remains nothing to be adjudicated upon as no injunction order shall be deemed to be in existence with retrospective effect after its setting aside by Ld. Appellate Court.
12.Ld. Counsel appearing for the plaintiffs has relied upon the ratio of following judgments in support of his arguments.
13. Kochira Krishnan Vs. Loseph Desouza, AIR 1986 Kerala 63 wherein the Hon'ble Court has held as under:
"Any action by which the process of the Court is attempted to be thwarted has to be viewed seriously. If an order of injunction is violated, that violation has to be dealt with sternly and seriously, for otherwise, it will undermine the very basis of the Rule of Law. There is no difference whether the violation pertains to an order, or to an undertaking made before a court of law which too will have as much effect as an interim injunction in such circumstances. The Court below disposed of such a serious complaint without considering it on merits. It dismissed the application (complaint) on the sole ground that the appeal itself had been disposed of by it. In Suit No. 2174/08 Page No. 7/11 doing so it has erred. The Court is concerned only with the question whether there was a disobedience of the order of injunction or violation of an undertaking given before Court and not with the ultimate decision in the matter.
On merits, an undertaking had been given by the respondent before the court below during the pendency of the appeal before that Court. That undertaking was not honoured during the pendency of the appeal. A departure from the undertakings so given to the Court below is therefore established. That action is punishable."
14.However, after the pronouncement of judgment of Hon'ble Supreme Court in subsequent cases, the present law does not hold good wherein it has been ultimately held that violation of an undertaking given before the Court would though attract an action for civil contempt under the Contempt of Courts Act but shall nevertheless be punishable under Order 39 Rule 2A CPC.
15.Reliance has also been placed on 'Papanna Vs. Nagachari, AIR 1996 Karnataka 256' wherein it has been held by Hon'ble High Court that;
"Order of temporary injunction - Disobedience of application under S. 151 for an order from Court directing police to give protection to plaintiff - Mere fact that proper remedy is to move Court under O. 39 R. 2A - Does not prevent Court from taking steps to implement its own orders - Court has jurisdiction to order police protection in such circumstances."
However, same is not applicable to the facts of the given case. Suit No. 2174/08 Page No. 8/11
16.Similarly, reliance has also been placed on 'Hareswar Roy Vs. Mustt. Monowara Begum, AIR 2010 Gauhati 22' wherein it has been held by Hon'ble Court that;
"From a bare reading of Rule 2A of Order 39, it becomes clear that O. 39 R. 2A embodies consequences of disobedience or breach of injunction order. It provides that the Court, which made the injunction order, or any Court, to which the suit or proceeding is transferred to, may order for attachment of the property of the person, who disobeys or commits breach of such order. The Court may also order for detention of such a person, in the civil prison for a term not exceeding three months, unless in the meantime, the court direct his release. The order, which is made under O. 39 Rr. 1, 2 may be varied, discharged and even set aside by the Court in terms of the provisions contained in O. 39. R. 4. An order of injunction made under O. 39 Rr. 1, 2 may be set aside even in appeal by taking resort to O. 43. Notwithstanding the fact that an order of injunction passed under O. 39, Rs. 1, 2 may be set aside, varied or discharged, the disobedience of any injunction order granted, or any other order, made under Rule 1 and 2 of O. 39, remains punishable, as provided under R. 2A of O. 39. Thus, an enquiry under O. 39, R. 2A survives notwithstanding the fact as to whether the order of injunction, or any order, made under Rules 1 and 2 of O. 39 has or has not been set aside, discharged or varied. The reason is very simple, and the reason is that so long as the order of injunction, or any other order, made under O. 39, Rr. 1 and 2 of remains in force such an order cannot be disobeyed or else, the rule of law will be the casualty. Thus, even if an order of injunction is discharged, varied or set aside, disobedience of such an order will remain punishable in accordance with the provisions as embodied in O. 39 R. 2A thus an application under O. 39, R. 2A does give rise to a 'proceeding' within the meaning of S.141 of Code."
However, same is also distinguishable on the facts of the present case as there was no injunction order in existence on the date of alleged construction carried out by the defendants herein. Suit No. 2174/08 Page No. 9/11
17.Same is fate of citation relied upon by the plaintiff reported as 'Paras Ram & Ors. vs. Brijendra Singh & Anr., AIR 2009 Rajasthan 147'.
18.Once it has been categorically held by Hon'ble Additional District Judge in the appeal before him that the observations of Ld. Predecessor of this Court were passed on mere conjectures and surmises and since for the alleged act of defandants, if any, the plaintiff was also entitled to be compensated in terms of money and was not going to suffer any irreparable loss or injury and also the observations made by Hon'ble Mr. Justice Vipin Sanghi, J. vide his lordship's order dated 02.07.2009 wherein he had categorically observed that from the report of the Ld. Local Commissioner along with photographs placed on record, it could not be said that any additions, alterations or any structural changes of any kind were being carried out by the respondents. I have no hesitation in holding that this Court is bound to accept the aforesaid observations of Hon'ble High Court as well as Court of Ld. ADJ and cannot sit in the appeal or revision or review of the findings given by the Superior Courts.
19.Hence, I have no hesitation in holding that once there was no injunction order existing in favour of the plaintiffs and against the defendants as on the date of alleged violation, the question of violation thereof does not arise at all.
Suit No. 2174/08 Page No. 10/11
20.Therefore, there is no merit in the present application preferred by the plaintiffs under Order 39 Rule 2A read with Section 151 CPC and same is accordingly dismissed.
Announced in the open Court today the 18th January, 2012.
(LOKESH KUMAR SHARMA) JSCCCumASCJCum GUARDIAN JUDGE (West) Suit No. 2174/08 Page No. 11/11