Telangana High Court
Saadullah Hussaini vs Mohammed Khaja Qutubuddin on 28 January, 2022
Author: Satish Chandra Sharma
Bench: Satish Chandra Sharma, Abhinand Kumar Shavili
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 2 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:3
"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. 1 AIR 1982 AP 394 2 AIR 1971 AP 53 3 (2006) 4 SCC 501 4 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