Gujarat High Court
Jagdishbhai Madhubhai Patel vs Saraswatiben Wd/O Asharam Revendas on 29 July, 2019
Equivalent citations: AIRONLINE 2019 GUJ 535, (2020) 1 GUJ LR 304
Author: J. B. Pardiwala
Bench: J.B.Pardiwala
C/AO/371/2015 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 371 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA Sd/-
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1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
Circulate this judgement in the subordinate judiciary.
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JAGDISHBHAI MADHUBHAI PATEL
Versus
SARASWATIBEN WD/O ASHARAM REVENDAS & 1 other(s)
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Appearance:
MR. DEVEN PARIKH, LD. SR. COUNSEL with MR SP MAJMUDAR(3456) for
the Appellant(s) No. 1
MR.DIPAK B PATEL(3744) for the Respondent(s) No. 1.1
MR. MIHIR JOSHI, LD. SR. COUNSEL with MR. SAMIK BHATT, LD. ADV.
for SINGHI AND CO(2725) for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 29/07/2019
CAV JUDGMENT
1. This appeal under Section 104 read with Order 43 Rule 1(R) of the Civil Procedure Code, 1908 (for short "the CPC") is at the instance of the original plaintiff and is directed against Page 1 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT the order passed by the Principal Senior Civil Judge, Ahmedabad dated 09.10.2015 below Application, Exh.211 in the Special Civil Suit No.66 of 1992. The application, Exh.211 was preferred by the plaintiff under the provisions of Order 39 Rule 2A of the CPC and the same came to be rejected by the Court below by way of the impugned order.
2. For the sake of convenience, the appellant herein shall be referred to as the original plaintiff and the respondents herein shall be referred to as the original defendants.
3. The facts giving rise to this appeal from order may be summarized as under:
3.1 The dispute pertains to the land bearing Survey Nos.126, 191/2, 197, 349, 1139, 1241/2, 1245/1, 267 and 218 admeasuring about 9 Acres and 49 Gunthas, situated at Vejalpur, Ahmedabad. The original owner of the land in question was one Bai Saraswatiben (original defendant No.1, since deceased, now substituted by her son as the legal heir). Late Bai Saraswatiben executed two sale deeds dated 27.10.1964 without possession with respect to the land in question in favour of five individuals. The sale deeds were registered bearing Nos.8925/1964 and 8927/1964.
3.2 On 04.03.1965, the purchasers formed a partnership in the name of M/s. Arbuda Corporation.
3.3 On 07.09.1965, M/s. Arbuda Corporation was registered.
Later, the land in question was made a part of the asset of the partnership.
Page 2 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT3.4 M/s. Aurbuda Corporation entered into a development agreement dated 07.12.1972 with M/s. Shree Ganesh Land Organiser (defendant No.2 in the suit).
3.5 M/s. Shree Ganesh Land Organiser came to be registered on 18.06.1974 as a Society under the provisions of the Gujarat Cooperative Societies Act, 1961. A certificate of registration dated 18.06.1974 was issued by the Addl. District Registrar, Cooperative Societies, Ahmedabad.
3.6 M/s. Arbuda Corporation executed an agreement to sell dated 15.09.1975 in favour of the defendant No.2 in respect of the suit land.
3.7 Pursuant to an application dated 16.11.1976 made by the defendant No.2, the Collector granted permission to the defendant No.2 to purchase the suit land.
3.8 The defendant No.1 entered intro an agreement to sell dated 03.07.1980 for the sale of the said land in favour of the defendant No.2 and Keshavbhai Chhababhai Patel HUF. One another agreement to sell dated 15.04.1982 was executed by the defendant No.1 in favour of the defendant No.2 and M/s. Shree Ganesh Housing Corporation. Upon execution of such agreement, a sum of Rs.50,000/- was paid to the defendant No.1.
3.9 An agreement to sell dated 01.04.1987 was executed by the defendant No.1 in favour of the plaintiff herein in respect of the suit land. The said agreement came to be registered at Serial No.5239 in Book No.1 of the Registrar, Ahmedabad.
Page 3 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT3.10 The defendant No.1 further executed an irrevocable general power of attorney dated 01.04.1987 in favour of one Pradipbhai Madhubhai Patel in respect of the suit land.
3.11 The defendant No.1 executed an agreement to sell dated 01.05.1991 with possession in favour of the defendant No.2. In the said agreement to sell, the defendant No.1 acknowledged the two registered sale deeds dated 27.10.1964 bearing Registration No.8925 of 1964 and 8927 of 1964 respectively in favour of the purchasers. The defendant No.1 also confirmed the agreement to sell by M/s. Arbuda Corporation in favour of the defendant No.2 dated 15.09.1975. At the time of execution of the said agreement to sell, the defendant No.2 paid Rs.15,000/- and Rs.5,000/- respectively vide two cheques drawn in favour of the defendant No.1.
3.12 The defendant No.1 entered into a supplementary agreement dated 01.05.1991 with the defendant No.2. By virtue of the said agreement, the defendant No.1 is said to have handed over the possession of the suit land in favour of the defendant No.2.
3.13 The aforesaid events ultimately compelled the plaintiff to file the Special Civil Suit No.66 of 1992 on 20.02.1992 in the Court of the Principal Senior Civil Judge, Ahmedabad (Rural) along with an application, seeking temporary injunction restraining the defendant No.1 from transferring, alienating etc. the ownership and/or the possession of the suit land to any third party.
3.14 On the date of the institution of the suit, i.e, 20.02.1992, an ex-parte ad-interim injunction was granted in favour of the Page 4 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT plaintiff. It is relevant to note that at the time of institution of the Special Civil Suit No.66 of 1992, the defendant No.2 was not a party in the suit proceedings.
3.15 On 05.06.1992 and 08.06.1992 various sale deeds were executed by the defendant No.1 in favour of the defendant No.2 in respect of the suit land.
3.16 The defendant No.1 appeared before the Civil Court on 09.07.1992 and filed her written statement.
3.17 On 24.09.1993, the plaintiff filed a rejoinder in the Special Civil Suit No.66 of 1992.
3.18 After hearing both the sides, the Civil Court passed an order of injunction dated 18.09.1999 in respect of the suit property which was made absolute till the final disposal of the suit.
3.19 Two sale deeds came to be executed by the defendant No.1 dated 18.10.2000 in respect of one remaining Survey No.216 out of the said suit land in favour of the defendant No.2. The said sale deeds were registered bearing Nos.4027 and 4028 respectively.
3.20 On 17.12.2004, some of the purchasers and their heirs filed an application (Exh.127) in the Special Civil Suit No.66 of 1992, thereby seeking impleadment in the said suit.
3.21 On 20.04. 2005, the plaintiff came to know about the alienation of the suit property in favour of the defendant No.2 while obtaining the revenue record-Village Form No.7/12. In Page 5 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT such circumstances, the plaintiff preferred an application under Order 1 Rule 10 and Order 6 Rule 17 of the CPC for impleading the defendant No.2 in the civil suit.
3.22 The Civil Court, by an order dated 06.02.2009, rejected the application filed by the plaintiff to implead the defendant No.2 as a party in the suit proceedings.
3.23 Being dissatisfied with the rejection of the application for impleadment, the plaintiff came before this Court on 18.09.2009 by filing the Special Civil Application No.12254 of 2009.
3.24 A learned Single Judge of this Court, vide order dated 04.03.2010 rejected the Special Civil Application No.12254 of 2009, thereby not permitting impleadment of the defendant No.2 in the civil suit.
3.25 Ultimately, on 25.08.2010, the Special Civil Application No.66 of 1992 came to be dismissed for default by the Civil Court.
3.26 It appears that being dissatisfied with the judgment and order passed by the learned Single Judge, rejecting the Special Civil Application No.12254 of 2009, the plaintiff herein preferred the Letters Patent Appeal No.1004 of 2010, and a Division Bench of this Court allowed the Letters Patent Appeal and permitted the plaintiff to implead the defendant No.2 as a party in the suit proceedings.
3.27 As the suit came to be dismissed for default, the plaintiff preferred an application dated 27.12.2010 for restoration.
Page 6 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT3.28 Vide order dated 21.10.2011, the Civil Suit No.66 of 1992 came to be restored.
3.29 An application (Exh.185) was filed by the plaintiff dated 14.06.2013 in the Special Civil Suit No.66 of 1992 under the provision of Order 39 Rule 2A of the Civil Procedure Code on the ground that despite there being an injunction operating against the defendant No.1, the suit land came to be transferred fraudulently by the defendant No.1 in favour of the defendant No.2.
3.30 The application, Exh.185, referred to above, came to be withdrawn by the plaintiff at that stage. The Civil Court passed an order dated 22.07.2013, disposing of the Application, Exh.185 as not pressed.
3.31 On 22.07.2013, the plaintiff preferred an application Exh.209 and prayed for injunction to restrain the defendants from putting up construction on the land and also from creating any third party right or interest.
3.32 On 22.07.2013, the plaintiff preferred one another application, Exh.211 under Order 39 Rule 2A of the C.P.C, praying that the responsible persons of the defendant No.2 be punished appropriately for disobedience of the injunction granted by the Civil Court.
3.33 On 26.09.2013, the defendant No.2 filed his written statement, Exh.252, in the suit proceedings.
3.34 On 24.02.2014, the Civil Court passed an order below the injunction application (Exh.209) filed by the plaintiff against Page 7 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT the defendant No.2 in the Special Civil Suit No.66 of 1992, rejecting the same.
3.35 The Appeal from Order preferred by the original plaintiff before this Court also came to be dismissed and the order passed by this Court, dismissing the Appeal from Order, was ultimately affirmed by the Supreme Court.
3.36 On 9.10.2015, the Civil Court rejected the application, Exh.211 preferred by the plaintiff under Order 39 Rule 2A of the C.P.C. Hence, this Appeal from Order.
4. Submissions on behalf of the appellant:
4.1 Mr. Deven Parikh, the learned senior counsel appearing with Mr. S.P. Majmudar for the appellant vehemently submitted that the court below committed a serious error in rejecting the application preferred by the plaintiff under the provisions of Order 39 Rule 2A of the C.P.C for breach of injunction on the ground that the same was time barred in view of Article 137 of the Limitation Act. According to Mr. Parikh, the limitation becomes relevant in view of the provisions of Section 20 of the Contempt of Courts Act and not when an application under Order 39 Rule 2A of the C.P.C is filed. Mr. Parikh submitted that despite there being a direct decision of this Court on the subject, the court below proceeded to reject the application treating it to be time barred. Mr.Parikh, in support of his submission, placed strong reliance on a decision of this Court in the case of Bharatbhai Jivrajbhai vs. Chaganbhai Samabhai & Ors., rendered in the Misc. Civil Application No.1751 of 2011, decided on 14th December, 2012.
4.2 Mr. Parikh submitted that the primary object of Rule 2A of Page 8 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT Order 39 of the Code is not punish a person who has disobeyed the order of injunction and also to enforce the order. He submitted that the willful disobedience invites the wrath of penal action as envisaged in the said provision. He submitted that where any action is done in violation of an order or stay or injunction, it is the duty of the court, as a policy, to set the wrong right and not to allow perpetuation of the wrong doing.
Mr. Parikh submitted that these provisions are intended to maintain the majesty of judicial order, to preserve the rule of law and to ensure faith of litigants in the administration of justice. It is a curative provision and its purpose is to ensure that the direction of the Court is implemented, the disobedience of order is remedied and status quo ante is restored. Mr. Parikh submitted that the court below completely overlooked the fact that even inherent powers under Section 151 of the C.P.C can be exercised by the Court to set the wrong right and not to allow perpetuation of the wrong doing. According to Mr. Parikh, if that be so, then there is no question of applying any limitation for the purpose of filing an application under Order 39 Rule 2A of the C.P.C.
4.3 Mr. Parikh submitted that the court below committed an error in taking the view that the application, Exh.211 was not maintainable, as in the past, the plaintiff had preferred identical application, Exh.185, and the same was not pressed. According to Mr. Parikh, the court below, under a serious misconception of law, applied the provision of Order 23 Rule 1(4) of the C.P.C. Mr. Parikh submitted that the provisions of Order 23 Rule 1(4) of the C.P.C does not apply to the proceedings under Order 39 Rule 2A keeping in mind Section 141 of the C.P.C.
Page 9 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT4.4 Mr. Parikh submitted that even otherwise, the impugned order could be termed as a non-speaking order. The Civil Court overlooked the fact that while the injunction was in operation, the original defendant No.1 transferred the land and thereby committed breach or rather disobeyed the order passed by the court of law. According to Mr. Parikh, the court below committed a serious error in taking the view that there is nothing to indicate that the defendant No.2, i.e, the purchaser had any knowledge as regards the injunction order passed by the Civil Court.
4.5 Mr. Parikh submitted that the suit is yet to be tried and the appellant has the right to produce evidence to demonstrate the apparent collusion and connivance of the defendant No.2 with the defendant No.1 so far as the transfer in breach of the injunction order is concerned. In such circumstances, Mr. Parikh submitted that his client may be permitted to lead appropriate evidence in the course of the trial of the civil suit and the application, Exh.211 may be decided afresh by the Civil Court having regard to the evidence that may be led in the course of the trial, documentary as well as oral.
4.6 Mr. Parikh submitted that the attempt on the part of the defendant No.2 to demonstrate that his interest in the suit property was crystalised prior to the agreement to sell is also irrelevant.
4.7 Mr. Parikh submitted that the application, Exh.185 was filed by the plaintiff for breach of injunction under Order 39 Rule 2A of the C.P.C and the same was withdrawn by the Page 10 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT lawyer appearing in the Civil Court on account of some miscommunication. Mr. Parikh submitted that on the very same day and date, the fresh application, Exh.211 was preferred. According to Mr. Parikh, there was no intent to abandon or let go of such a right as it was withdrawn at that stage and the permission of the Court was in accordance with the endorsement. According to Mr. Parikh, it is not the same as the abandonment of the claim as contemplated under Order
23. He submitted that it is well settled that the principle of res-judicata would not apply to an interim application. In this regard, Mr. Parikh placed reliance on the decision of the Supreme Court in the case of Arjun Singh vs. Mohindra Kumar & Ors., reported in AIR 1964 SC 993 (Para 13).
4.8 In such circumstances, referred to above, Mr. Parikh prays that there being merit in this appeal, the same be allowed and the impugned order passed by the court below be quashed and set aside.
5. Submissions on behalf of the defendant No.2:-
5.1 Mr. Mihir Joshi, the learned senior counsel appearing with Mr. Samik Bhatt for Singhi & Co. vehemently opposed the present appeal. Mr. Joshi submitted that no error, not to speak of any error of law, could be said to have been committed by the court below in rejecting the application, Exh.211.
5.2 Mr. Joshi submitted that the impugned order passed by the Trial Court is a reasoned order and has been passed in exercise of its discretion under Order 39 Rule 2A of the C.P.C after considering the relevant facts and circumstances of the case.Page 11 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT
5.3 Mr. Joshi submitted that there is no merit in the submission canvassed on behalf of the appellant that the application, Exh.211 should be heard afresh along with the suit, i.e, by giving an opportunity to the appellant to lead appropriate oral as well as documentary evidence and then ask the court concerned to decide the application Exh.211.
According to Mr. Joshi, Order 41, Rules 23 and 23-A of the C.P.C confers power upon the Appellate Court to remand a case but only upon reversal of the order/decree of the Court. According to Mr. Joshi, in the case on hand, not only the appellant has failed to demonstrate any defect in the impugned order so as to warrant reversal thereof, but the appellant is seeking remand in order to lead further evidence in support of his application under Order 39 Rule 2A of the C.P.C, which is not permissible. Mr. Joshi submitted that by seeking remand of the case to the Trial Court, the appellant is in substance seeking another opportunity to establish his case. Having consciously chosen not to lead evidence other than the documentary evidence produced before the Trial Court at the time of the hearing of the application, Exh.211, it is not open to the applicant now to seek remand of the case and seek a de-novo consideration of the application on the issues raised therein. Mr. Joshi, in support of his submission, placed reliance on the decision of the Supreme Court in the case of Sree Panimoola Devi Temple & Ors. Vs. Bhuvanachandran Pillai & Ors., reported in (2015) 12 SCC
698. 5.4 Mr. Joshi submitted that the application, Exh.211 under Order 39 Rule 2A of the C.P.C is barred by the provision of Page 12 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT Order 23 Rule 1(4) of the C.P.C. According to Mr. Joshi, it is not in dispute that the appellant had earlier filed an application, Exh.185 under Order 39 Rule 2A of the C.P.C and the same was withdrawn. Following such withdrawal of his application, Exh.185, the appellant preferred a fresh application, Exh.211 in respect of the same subject matter. Mr. Joshi submitted that Order 23 Rule 1(4) of the C.P.C precludes the appellant from instituting a fresh application in respect of the same subject matter, once the appellant has abandoned the earlier application or withdrawn the application in the absence of any liberty granted by the Court to file a fresh application. Mr. Joshi pointed out that the Trial Court, while disposing of the appellant's earlier application, Exh.185, has not granted any liberty to prefer a fresh application under Order 39 Rule 2A of the C.P.C. According to Mr. Joshi, Section 141 of the C.P.C would apply to the proceedings under Order 39 Rule 2A of the C.P.C. Mr. Joshi, in support of his submission, has placed reliance on the following two decisions:
"(1) Sarguja Transport Service vs. State Transport Appellate Tribunal, M.P., Gwalior & Ors., reported in (1987) 1 SCC 5.
(2) Upadhyay & Co. vs. State of U.P. & Ors., reported in (1999) 1 SCC 81.
5.5 Mr. Joshi submitted that the application, Exh.211 is barred by limitation as prescribed under Article 137 of Schedule-I to the Limitation Act, 1963. Mr. Joshi submitted that the sale deeds executed by the defendant No.1 in favour of the defendant No.2 were in breach of the ad-interim relief granted by the Trial Court on 20.02.1992. Although the aforesaid sale Page 13 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT deeds were executed on 05.06.1992 and 08.06.1992 respectively and were also registered, yet it is difficult to believe that the same came to the knowledge of the appellant only in the year 2005. He submitted that the claim of the appellant that he was unaware of the aforesaid registered sale deeds for a period of almost 13 years is unpalatable, more particularly, when the land in question was a subject matter of various litigations before the various forums. Assuming for the sake of argument that the appellant came to know about the alleged breach in the year 2005, the appellant preferred the application under Order 39 Rule 2A of the C.P.C in the year 2013, i.e., after a period of almost 8 years from the date he came to know about the alleged breach. Therefore, the application preferred by the appellant under Order 39 Rule 2A could be said to be barred by limitation. Article 137 of the Schedule-I to the Limitation Act, 1963 would apply to an application under Order 39 Rule 2A of the C.P.C. Mr. Joshi submitted that the submission canvassed on behalf of the appellant that the execution of the sale deeds in breach of the order of temporary injunction passed by the Trial Court is a continuing wrong, is not tenable in law.
5.6 Mr. Joshi submitted that the execution of a sale deed is a singular act, which stood completed on the date of its execution and registration. In such circumstances, the period of limitation would reckon from the date of knowledge acquired by the aggrieved party in relation to the existence of the sale deeds. Mr. Joshi, in support of his submission, has placed reliance on a decision of the Bombay High Court in the case of Mahendra Builders vs. Parvez Ghaswala & Ors., reported in 2006 SCC Online BOM 359; 2006(3) Mh.L.J. 668.
Page 14 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT5.7 Mr. Joshi submitted that the contention of the appellant that he could not have filed the said application under Order 39 Rule 2A of the C.P.C pending the impleadment of the Respondent No.2 in the suit is untenable in law. It is submitted that an application under Order 39 Rule 2A of the C.P.C is a standalone proceeding. Even otherwise, in view of the fact that the Respondent No.2 not being a party to the suit at the time of the grant of the ad-interim relief in question, such proceedings under Order 39 Rule 2A of the C.P.C could have been instituted against the respondent No.1.
5.8 Mr. Joshi submitted that the case put up by the appellant that he wanted to demonstrate collusion between the respondent No.1 and the respondent No.2 in over reaching the process of law is absurd In its application under Order 39 Rule 2A of the C.P.C, the appellant besides making bald averments, has not even attempted to show as to how the respondent No.1 and respondent No.2 had allegedly colluded. The appellant has not led any evidence in support of such allegation. The appellant, in fact, is seeking a remand of the case to the Trial Court with a view to lead further evidence in support of its allegations.
5.9 Mr. Joshi further submitted that the respondent No.2 not being a party to the suit at the time of the grant of temporary injunction and being unaware of such temporary injunction, could not be said to have breached the same. According to Mr. Joshi, it is an undisputed fact that the respondent No.2 was not impleaded as a defendant in the suit at the time of its institution as well as at the time of the grant of the ad-interim relief. The appellant has failed to produce any evidence to Page 15 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT show that the respondent No.2 had knowledge of the ad- interim relief granted by the Trial Court at the time of execution of the sale deeds.
5.10 It is submitted that the provision under Order 39 Rule 2A of the C.P.C being a penal provision, the party alleging breach is required to prove willful breach by another party beyond reasonable doubt for the purpose of seeking imposition of punishment under Order 39 Rule 2A of the C.P.C. It is submitted that for the purpose of punishing a party under Order 39 Rule 2A of the CPC, the Court would have to make a positive finding that the party in question had knowledge of the injunction and had willfully breached or disobeyed such injunction. In the facts of the present case, no evidence has been produced by the appellant demonstrating knowledge of the respondent No.2 about the temporary injunction. In such circumstances, the Trial Court rightly and justifiably did not record a positive finding that the respondent No.2 was aware of and had willfully breached the temporary injunction. In this regard, reliance is placed upon the decision of the Orissa High Court in the case of Prafulla Kumar Mohapatra vs. Jaya Krushna Mohapatra & Ors., reported in 1994 SCC Online Ori 3.
5.11 Mr. Joshi submitted that in any case, the purpose of Order 39 Rule 2A of the CPC is to compel obedience of the order of injunction and as the injunction, at a later stage, came to be vacated, there can be no question of compelling its obedience. In the case on hand, the suit was dismissed for non- prosecution by the Trial Court on 25.8.2010. Consequently, the temporary injunction granted earlier also stood vacated. It Page 16 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT is submitted that upon restoration of the suit on 21.10.2011, neither the application for temporary injunction nor the interim relief granted thereunder stood restored. It is further submitted that there is neither any averment nor any evidence produced by the appellant claiming that his application for temporary injunction along with the interim relief granted thereunder was restored. In such circumstances, the interim relief granted earlier stood vacated. It is submitted that the punitive action prescribed under Order 39 Rule 2A of the CPC cannot be taken after the injunction order ceases to exist. Therefore, the earlier temporary injunction having stood vacated, relief under Order 39 Rule 2A of the CPC cannot be granted at this stage. In this regard, reliance is placed upon the decision of the Allahabad High Court in the case of Sheo Kumar Saxena vs. Zila Sahkari Vikas Sangh, Gonda and Ors., reported in 1981 SCC Online AII 699.
5.12 According to Mr. Joshi, even the conduct of the appellant disentitles him from seeking any relief from this Court, and the proceedings are clearly abuse of process of law. The chronology of events makes it more than clear that the appellant is in fact not aggrieved by the alleged breach of the temporary injunction granted by the Trial Court, and is not a serious litigant pursuing its remedy. Not only has the appellant sought reliefs against the alleged breach of temporary injunction after expiry of the prescribed limitation period, as would be evident from the chronology of events, the appellant has initiated proceedings at strategic points of time with a view to arm-twist the respondents.
5.13 The appellant in his application under Order 39 Rule 2A of Page 17 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT the CPC has prayed only for imposing appropriate punishment upon the respondents. However, as the respondent No.1 passed away pending the adjudication of the application, and not being in a position to prove knowledge or willful breach on the part of the respondent No.2, the appellant seeks remand of the case to the Trial Court with a view to avail another opportunity for de novo consideration of its application.
5.14 In the last, Mr. Joshi submitted that the sale of the land in question is valid between the concerned parties, and the same cannot be declared invalid because of it being executed in breach of an injunction granted by the Court. Mr. Joshi submitted that the whole idea in seeking remand is for the purpose of getting the sale transaction declared invalid.
5.15 In this regard, the Supreme Court has held that when a sale deed is executed in breach of an injunction issued by the competent court, the party committing the breach may doubtless incur the liability to be punished for the breach committed by it, but the sale itself would remain valid as between the parties to the transaction. Reliance is placed on the following judgment of the Supreme Court:
(I) Thomson Press (India) Ltd. vs. Nanak Builders and Investors P. Ltd. & Ors. reported in AIR 2013 SC 2389-Para-
52. 5.16 It is pointed out that prayer for setting aside the sale deeds have been sought in the application under Order 39 Rule 2A of the CPC. Therefore, the appellant cannot seek remand of the case for the said purpose. It is submitted that Page 18 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT setting aside of a sale deed is a consequence to a finding of breach of injunction by both the respondents in the event the court in its discretionary jurisdiction decides to exercise such power. If the seller is guilty of breach, there is no question of setting aside the transaction or any consequence befalling a bonafide purchaser. The consequence prescribed i.e. imprisonment etc. would befall on the seller in such case.
5.17 In such circumstances, referred to above, Mr. Joshi, the learned senior counsel, prays that there being no merit in the present appeal, the same deserves to be dismissed.
ANALYSIS
6. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is whether the court below committed any error in passing the impugned order.
Scope of Order 39 Rule 2A of the C.P.C
7. Order 39 Rule 2A of the CPC reads as follows:
"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 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.Page 19 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT
(2) No attachment made under this rule shall remain in force for more than tone 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."
8. So far as the scope of Order XXXIX, Rule 2A is concerned, the same has been considered by different Courts from time to time. The said provisions are of a different nature altogether. A Constitution Bench of the Supreme Court, in State of Bihar v. Rani Sana Bati Kumari, AIR 1961 SC 221, has categorically held that the said provisions deal with the wilful defiance of the order passed by the civil court. The Apex Court held that there must be wilful disobedience of the injunction passed by the Court and order of punishment be passed unless the Court is satisfied that the party was, in fact, under a misapprehension as to the scope of the order or there was an unintentional wrong for the reason that the order was ambiguous and reasonably capable of more than one interpretation or the party never intended to disobey the order but conducted himself in accordance with the interpretation of the order. The proceedings are purely quasi-criminal in nature and are, thus, punitive. Even the corporate body like municipality/Government can be punished though no officer of it be a party by name. A similar view has been reiterated by the Supreme Court in Aligarh Municipal Board and Ors. v. Ekka Tonga Mazdoor Union and Ors., AIR 1970 SC 1767.
9. In Tayabbhai M. Bagasarwalla and Ors. v. Hind Rubber Industries Put. Ltd., AIR 1997 SC 1240, the Supreme Court dealt with a case of disobedience of an injunction passed under Page 20 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT Order XXXIX, Rules 1 and 2 of the Code, wherein the contention was raised that the proceedings under Order XXXIX, Rule 2A cannot be initiated and no punishment can be imposed for disobedience of the order because the civil court, which granted the injunction, had no jurisdiction to entertain the suit. The Apex Court rejected the contention holding that a party aggrieved of the order has a right to ask the Court to vacate the injunction pointing out to it that it had no jurisdiction to approach the higher court for setting aside that order, but so long the order remains in force, the party cannot be permitted to disobey it or avoid punishment for disobedience on any ground, including that the Court had no Jurisdiction, even if ultimately the Court comes to the conclusion that the Court had no jurisdiction to entertain the suit. The party, who willingly disobeys the order and acts in violation of such an injunction, runs the risk for facing the consequence of punishment.
10. In Samee Khan v. Bindu Khan, reported in AIR 1998 SC 2765, the Supreme Court held that in exercise of the power under Order XXXIX, Rule 2A of the Code, the civil court has a power either to order detention for disobedience of the disobeying party or attaching his property and if the circumstances and facts of the case so demand, both steps can also be resorted to. The Apex Court held as under :
"But the position under Rule 2A or Order XXXIX is different. Even if the injunction order was subsequently set aside the disobedience does not get erased. It may be a different matter that the rigour of such disobedience may be toned down if the order is subsequently set aside. For what purpose the property is to be attached in the case of disobedience of the order of injunction? Sub-Page 21 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT
rule (2) provides that if the disobedience or breach continues beyond one year from the date of attachment the Court is empowered to sell the property under attachment and compensate the affected party from such sale proceeds. In other words, attachment will continue only till the breach continues or the disobedience persists subject to a limit of one year period. If the disobedience ceases to continue in the meanwhile the attachment also would cease. Thus, even under Order XXXIX, Rule 2A the attachment is a mode to compel the opposite party to obey the order of injunction. But detaining the disobedient party in civil prison is a mode of punishment for his being guilty of such obedience."
11. Thus, in view of the above, it becomes crystal clear that the proceedings are analogous to the contempt of court proceedings but they are taken under the provisions of Order XXXIX, Rule 2A of the Code for the reason that the special provision inserted in the Code shall prevail over the general law of contempt contained in the Contempt of Courts Act, 1972 (for short, "the Act, 1972"). Even the High Court, in such a case, shall not entertain the petition under the provisions of Act, 1972.
12. A Constitution Bench of the Supreme Court in State of Bihar v. Rani Sonabati Kumari, AIR 1961 SC 221, observed that the purpose of such proceedings is for the enforcement or effectuation of an order of execution. Similarly, in Sitarami v. Ganesh Das, AIR 1973 All 449, the Court held as under :
"The purpose of Order XXXIX, Rule 2A, Civil P. C. is to enforce the order of injunction. It is a provision which permits the Court to execute the injunction order. Its provisions are similaV to the provisions of Order XXI, Rule 32, Civil P. C. which provide for the execution of a decree for injunction. The mode of execution given in Order XXI, Rule 32 is the same as provided in Rule 2A of Order Page 22 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT XXXIX. In either case for the execution of the order or decree of injunction attachment of property is to be made and the person who is to be compelled to obey the injunction can be detained in civil prison. The purpose is not to punish the man but to see that the decree or order is obeyed and the wrong done by disobedience of the order is remedied and the status quo ante is brought into effect. This view finds support from the observations of the Supreme Court in the case of State of Bihar v. Sonabati Kumari, AIR 1961 SC 221 ; while dealing with Order XXXIX, Rule 2 (iii), Civil P. C. (without the U. P. Amendment) the Court held that the proceedings are in substance designed to effect enforcement of or to execute the order, and a parallel was drawn between the provisions of Order XXI, Rule 32 and of Order XXXIX, Rule 2 (iti), C.P.C. which is similar to Order XXXIX, Rule 2A. This curative function and purpose of Rule 2A of Order XXXIX, Civil P. C. is also evident from the provision in Rule 2A for the lifting of imprisonment, which normally would be when the order has been complied with and the coercion of imprisonment no longer remains necessary. Hence, even if Sitaram had earlier been sent to the civil imprisonment he would have been released on the tinshed being removed, and it would therefore, now serve no purpose to send him to prison. For the same reason the attachment of property is also no longer needed. The order of the court below has lost its utility and need no longer be kept alive."
13. In Kochira Krishnan v. Joseph Desouza, AIR 1986 Ker 63, it has been held that violation of injunction or even undertaking given before the Court is punishable under Order XXXIX, Rule 2A of the Code. The punishment can be imposed even if the matter stood disposed of, for the reason that 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 the Court and not with the ultimate decision in the matter. While deciding the said case, the Court placed reliance upon the judgment of the Privy Council in Eastern Trust Co. v. Makenzie Mann & Co. Ltd., AIR 1915 PC Page 23 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT 106, wherein it had been observed as under :
"An injunction, although subsequently discharged because the plaintiffs case failed, must be obeyed while it lasts..........."
14. Thus, it is evident from the above discussion that the proceedings are analogous to the proceedings under the Act, 1971. The only distinction is that as the Legislature, in its wisdom, has enacted a special provision enacting the provisions of Order XXXIX, Rule 2A, it would prevail over the provisions of the Contempt of Courts Act.
15. The primary object of Rule 2A of Order 39 of the Code is not to punish a person, who has disobeyed the order of injunction, but to enforce the order. The willful disobedience, no doubt, invites wrath of penal action as envisaged in the said provision, hence, where any action is done in violation of a order or stay or injunction, it is the duty of the Court, as a policy, to set the wrong right and not to allow perpetuation of the wrong doing. These provisions are intended to maintain majesty of judicial order, to preserve rule of law and to ensure the faith of litigants in the administration of justice. It is a curative provision and its purpose is to ensure that the direction of the Court is implemented, disobedience of order is remedied and status quo ante is restored.
16. The following facts are not in dispute:
(I) An ex-parte ad-interim relief against the transfer of the suit land as well as possession was granted by the Civil Court vide order dated 20.02.1992.Page 24 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT
(ii) The same was confirmed by the Civil Court on 18.09.1999.
(iii) The sale deeds were executed on 5th June, 1992, 8th June, 1992 and 18th October, 2000 respectively.
(iv) The original defendant No.1-Saraswatiben, who executed the sale deeds in favour of the defendant No.2 passed away on 9th September, 2013.
(v) Prima facie, it appears that the very foundation of the purchase by the respondent No.2 is the agreement to sell dated 1st May, 1991 executed by Saraswatiben in their favour and the ULC permission dated 3rd June, 1992.
(vi) While obtaining the ULC permission, the concerned authorities would require a statement as to whether there was any stay or injunction operating of any court. Prima facie, it appears that while both, the purchaser and seller were parties to the said proceedings, they brought only those proceedings to the notice of the authority where there was no stay or the stay was vacated. The permission granted under the ULC is dated 3rd June, 1992. The ad-interim relief was granted just four months before, i.e., on 20th February, 1992.
(vii) Saraswatiben filed her written statement in the suit on 9th July, 1992 but failed to disclose that she had already sold the property.
(viii) The litigation with regard to impleading the respondent No.2 as a party in the proceedings went on upto 2010. Prima facie, it appears that the appellant came to know about the transfer only after the public notice dated 18th December, Page 25 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT 2004.
17. Bearing the aforesaid in mind, I now propose to deal with the respective submissions.
18. Let me first deal with the issue as regards the limitation to prefer an application for disobedience of injunction under Order 39 Rule 2A of the CPC.
19. Issue of limitation:
19.1 This issue is no longer res-integra in view of the decision of this Court in the case of Bharatbhai Jivrajbhai (supra). A learned Single Judge (Coram: M.R. Shah, J.) (as his Lordship then was) had the occasion to consider whether there is any period of limitation, governing the proceedings under Order 39 Rule 2A of the CPC. I may quote the relevant observations:
"It is the case on behalf of the contesting respondents that as observed by the Honble Supreme Court in the case of Pallav Seth (Supra), the proceedings under Order 39 Rule 2A of the CPC breach of injunction are akin to the proceedings under the Contempt of Courts Act, the period of limitation as prescribed under the Contempt of Courts Act would be applicable. In support of his above submission, he has also relied upon the decision of the Division Bench of this Court in the case of Dinesh A. Parikh (Supra). The aforesaid has no substance and cannot be accepted. Merely because the proceedings under Order 39 Rule 2A of the CPC for breach of injunction are considered to be akin to the proceedings under the Contempt of Courts Act, the period of limitation as prescribed under Section 20 of the Contempt of Courts Act would not be applicable. The Honble Supreme Court in the case of Pallav Seth (Supra) has not held that the period of limitation prescribed under Section 20 of the Contempt of Courts Act would be applicable in a proceeding for breach of injunction under Order 39 Rule 2A of the CPC.Page 26 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT
Similarly, even no such view has been expressed by the Division Bench of this Court in the case of Dinesh A. Parikh (Supra). Under the circumstances, the contention on behalf of the contesting respondents that the present application is barred by law of limitation i.e. beyond the period of one year either from the date of alleged breach of injunction i.e. execution of the Agreement to Sell or even from the date of knowledge i.e. from the date of issuance of the notice upon the defendants alleging breach of injunction cannot be accepted. No such period of limitation is prescribed for initiation of the proceedings for breach of injunction under Order 39 Rule 2A of the CPC which is provided under Section 20 of the Contempt of Courts Act. Under the circumstances, the contention on behalf of the contesting respondent Nos.2, 4 and 5 that even for initiating the proceedings for breach of injunction under Order 39 Rule 2A of the CPC, the application is to be submitted within a period of one year as provided under Section 20 of the Contempt of Courts Act cannot be accepted. So long as the breach of injunction continues the aggrieved party in whose favour there is an injunction can initiate the proceedings for breach of injunction under Order 39 Rule 2A of the CPC."
19.2 The aforesaid decision of this Court was later followed by a Division Bench of the Delhi High Court in the case of Caravan Commercial Co. Ltd. vs.Yashashwi Aggarwal, reported in (2017) 238 DLT 643. Justice Indira Banerjee (as her Ladyship then was), speaking for the Bench, observed as under:
"Insofar as the plea of limitation is concerned, there is no dispute that IA 22682/2012 was filed under Order 39 Rule 2A CPC only without any reference to or under the provisions of the Contempt of Courts Act. The limitation becomes relevant in view of the provisions of Section 20 of the Contempt of Courts Act and not when an application under Order 39 Rule 2A CPC is filed. Even otherwise, when the allegation is of violation of an interim order of the Court, the application would not be hit by delay and laches. We may note in this regard the judgment of the Gujarat High Court in the case of Page 27 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT Bharatbhai Jivrajbhai v. Chaganbhai Samabhai and Anr. passed in Miscellaneous Civil Application No. 1751/2011 decided on December 14, 2012, wherein Gujarat High Court, on an identical plea of limitation raised by the respondents 2, 4 and 5 therein and has rejected such a plea and observed that merely because the proceedings under Order 39 Rule 2A of the CPC for breach of injunction are considered to be akin to the proceedings under the Contempt of Courts Act, the period of limitation, as prescribed under Section 20 of the Contempt of Courts Act would not be applicable. The Court also held that the Supreme Court in the case of Pallav Sheth v. Custodian and ors (2001) 7 SCC 549 has not held that the period of limitation prescribed under Section 20 of the Contempt of Courts Act would be applicable in a proceeding for breach of injunction under Order 39 Rule 2A CPC. We are in agreement with such a FAO(OS) 385/2014 & connected matter Page 53 of 61 conclusion. Suffice to state, no period of limitation is prescribed for initiating proceedings for breach of injunction under Order 39 Rule 2A CPC, which is provided under Section 20 of the Contempt of Courts Act. It must be held that so long as the breach of injunction continues, the aggrieved party in whose favour there is an injunction, can initiate the proceedings for breach of injunction under Order 39 Rule 2A of the CPC. That apart, it must also be held that Order 39 Rule 2A CPC being a special provision inserted in the Code, shall prevail over the general law of contempt contained in the Contempt of Courts Act."
20. Whether the appellant remained unaware of the registered sale deeds for a period of almost 13 years is a question of fact.
21. To a large extent, Mr. Parikh, the learned counsel appearing for the appellant is right in his submission that under the Limitation Act, no period is advisedly prescribed within which an application under the provision of Order 39 Rule 2A of the CPC for disobedience or breach of injunction must be filed. Mr. Parikh is right in his submission that the Page 28 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT court may take suo motu cognizance of such a breach or disobedience at any stage in exercise of its power under section 151 of the CPC. According to Mr. Parikh, the case is one of collusion between late Saraswatiben and the purchaser. Mr. Parikh pointed out that it is only after the purchaser was permitted to implead as a party in the suit proceedings, the appellant was able to prefer the application, Exh.211. According to Mr. Parikh, the very right to file the application, Exh.211 crystalised on the purchaser being joined as a party defendant in the suit on 23rd November, 2010.
22. It is evident from the impugned order that the Trial Court has placed strong reliance on Article 137 of the Limitation Act. Coming to the aspect of limitation, Mr. Joshi submitted that by virtue of the residuary Article 137 of the Limitation Act, the application is barred by limitation as it was not filed within three years from the date of knowledge acquired by the aggrieved party in relation to the existence of the sale deed. Let me say something on Article 137 of the Limitation Act. The Schedule to the Limitation Act is divided into three divisions. The Third Division pertains to the application and consists of two parts, the first part being the "APPLICATIONS IN SPECIFIED CASES" and the second part being "OTHER APPLICATIONS"
under which Art. 137 falls. It reads thus :--
"137. Any other application Three years When the right to for which no period of apply accrues."
limitation is provided elsewhere, in this Division.
Page 29 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT23. The law on the point can be explained thus:
(A) Under the Limitation Act, no period is advisedly prescribed within which an application for disobedience or breach of injunction under the provision of Order 39 Rule 2A of the CPC must be made.
(B) The assumption that under Article 137, the right to apply necessarily accrues on the date of the breach or disobedience of injunction is unwarranted. At the same time, once the plaintiff comes to know about the breach, then he must necessarily prefer the application within three years thereof.
If there is gross or inordinate delay, then the same must be satisfactorily explained.
(C ) Such delay must be explained, but cannot be equated with the absolute bar of limitation.
(D) The inherent powers of the Court under Section 151 to punish for disobedience or breach of the order of injunction has nothing to do with Article 137 of the Limitation Act. In the interest of justice, if the Court deems fit, then it is always open for the Court to exercise its inherent powers at any point of time because it is the duty of the Court, as a policy, to set the wrong right and not to allow perpetuation of the wrong doing.
(E) If there is gross delay, then it is for the Court concerned to decide whether to exercise its inherent powers under Section 151 of the CPC or not.
24. I fail to understand why the appellant had to wait till the time the purchaser came to be impleaded as the defendant Page 30 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT No.2 in the suit proceedings. The appellant claims that the alleged breach came to his notice in the year 2005, but it took time before the purchaser was impleaded in the suit proceedings as the defendant No.2. This explanation is not convincing and has not appealed to this Court. In fact, the day, the appellant came to learn about the transfer of the suit land, he could have immediately brought it to the notice of the court concerned. Once such a fact is brought to the notice of the court concerned, then it is for the Court to look into the matter and deal with the person who is prima facie found to be guilty of such breach or disobedience of the injunction. In the case on hand, the breach cannot be termed as a continuing wrong. The execution of the sale deed could be termed as a singular act and the same was completed on the date of execution of the sale deeds. In such circumstances, it was expected of the appellant to prefer an appropriate application in the year 2005 itself. The question whether the alleged breach committed by the defendant No.1 in collusion with the defendant No.2 can be said to be continuing action has been rightly countered by the defendant No.2 relying on the decision of the Apex Court in the case of Balakrishna Savalram Pujari Waghmare & Ors. vs. Shree Dhyaneshwar Maharaj Sansthan & Ors., reported in AIR 1959 SC 798. It is observed in this decision that section 23 of the Limitation Act refers not to a continuing right but to a continuing wrong. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. In the aforesaid context, I may refer to one decision of the Bombay High Court in the case of Mahendra Builders (supra), wherein Justice A.M. Khanwilkar (as his Lordship then was) observed as under:
Page 31 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT"Reliance is also justly placed on the decision of the Nagpur Bench in the case of J.H.S. Evangelical German Mission, Superintendent Leprosy Asylum, Chandkhuri v. Mahant Ramsahaigir Chela Sunsergir Gosawi reported in AIR 1939 Nagpur 145. Even in this decision, while considering provisions of Section 23 and Articles 142 and 144 of the Limitation Act, the Court observed that complete usurpation of possession and occupation and consequent dispossession of the owner of the land is a wrong which is complete from the moment of the dispossession. Relying on this observation, counsel for the respondent would contend that the creation of third party interest in the suit premises of any nature as is alleged by the petitioner, the act is completed and period of limitation would reckon in that case from the date of knowledge acquired by the petitioner in relation to the existence of that fact. Counsel for the respondent had rightly argued that the argument which was pressed into service across the bar on behalf of the petitioner that the date on which petitioner acquired knowledge of existence of registered Deed of Assignment, that case is not stated in the petition. Whereas in the Petition the case is one of continuing contempt. Suffice it to observe that in the fact situation of the present case it is not possible to uphold the claim of continuing contempt. Thus, the Petition is barred by limitation."
25. However, at the same time, the issue with regard to limitation should not come in the way of the court concerned if it proposes to take action in accordance with law. I am saying so because it is the duty of the Court, as a policy, to set the wrong right and not to allow perpetuation of the wrong doing. The provisions like Order 39 Rule 2A of the CPC are intended to maintain the majesty of the judicial order, to preserve the rule of law and to ensure the faith of the litigants in the administration of justice. It is a curative provision and its purpose is to ensure that the direction of the Court is implemented, the disobedience of order is remedied and Page 32 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT appropriate order is passed. I am saying so keeping in mind Section 151 of the CPC.
26. Section 151 of the Civil Procedure Code confers power to make such orders as may be necessary for the ends of justice or to prevent abuse of process of court. Every court is constituted for the purpose of doing justice according to law and must be deemed to possess, as a necessary corollary, and as inherent in its very constitution, all such powers as may be necessary to do the right and to undo the wrong in the course of the administration of justice. As pointed out by the Supreme Court in N.S. Mills v. Union of India: [1976]1 SCR 803 , the inherent power of the court has its roots, in necessity and its breath is coextensive with the necessity. Section 151 does not confer any powers, but only indicates that there is a power to make such orders as may be necessary for the ends of justice and to prevent the abuse of process of court. As observed by the Supreme Court in Manoharlal v. Seth Hiralal: (1962)1 S.C.R. 450, the inherent power has not been conferred on the court; it is a power inherent in the court by virtue of its duty to do justice between the parties before it. As pointed out by the Supreme Court in Padam Sen v. The State of Bihar:
1961CriLJ322 , the inherent powers of the court are in addition to the powers specifically conferred on the court by the Code. They are complementary to those powers and therefore, it must be held that the court is free to exercise them for the purpose mentioned in Section 151 of the Code, when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the Legislature. The language of Section 151 of the Code is wide enough to clothe the civil courts with the Page 33 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT inherent powers to do the right and undo the wrong in the course of administration of justice.
27. I must bear in mind that when an order of temporary injunction is granted by the court under Order 39, Rule 1 of the Code or when a decree for permanent injunction is passed by the civil court, it involves the following three stages:
(A) The first stage is the issue of an order of temporary injunction or passing of a decree for permanent injunction.
When a petition under Order 39, Rule 1 of the Code is filed by a party, the court being satisfied that the conditions prescribed under Order 39, Rule 1 of the Code are satisfied, may issue an order of temporary injunction in favour of the party, who has applied for the same. Similarly, the court after full trial of a suit and upon the merits of the case, may pass a decree for permanent injunction in favour of a party. There is specific provision in the Code namely Order 39, Rule 1 dealing with the grant of the order of temporary injunction. Section 38 of the Specific Relief Act deals with the circumstances under which a decree for perpetual injunction can be passed by the courts.
(B) The second stage is the implementation of the order of temporary injunction or decree granting perpetual injunction. There is no specific provision under the Code dealing with the implementation of the order of temporary injunction or a decree for perpetual injunction.
(C ) The third stage is the punishment for disobedience of the order of injunction. Order 39, Rule 2A of the Code deals with Page 34 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT the consequences of disobedience or breach of injunction or other orders made under Order 39, Rule 1 of the Code. Order 21, Rule 32 of the Code says that where a party against whom a decree for injunction has been passed, has had an opportunity of obeying the decree but has willfully failed to obey it, the decree for injunction may be enforced by his detention in civil prison or by the attachment of his property or by both. Thus, the Code contains specific provision with regard to the grant of an order of temporary injunction and for punishing the party who disobeys the order of temporary injunction and the decree for perpetual injunction. However, there is no provision in the Code providing for the implementation of the order of temporary injunction or decree for perpetual injunction granted by the courts. When there is no specific provision of law which is sufficient to implement the order of temporary injunction or the decree for perpetual injunction granted by the court, there is no good reason why the provisions of Section 151 of the Code cannot be invoked for the said purpose to render justice or to redress the wrong, because, the courts should not only have the power to pass an order, but also should have the power to implement the said order. Therefore, when a party has obtained an order of temporary injunction from a court under Order 39, Rule 1 of the Code and the other party against whom the order of injunction is passed disobeys the same, the aggrieved party can certainly approach the court invoking the power of the court under Section 151 and also pray in peculiar circumstances for police aid for the enforcement of the order of temporary injunction. When it is brought to the notice of the court that the enforcement of the order of temporary injunction is sought to be prevented or obstructed, the court in Page 35 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT exercise of the inherent powers under Section 151, can even direct the police authorities to render all aid to the aggrieved party in the enforcement of the order of the injunction granted by the court in order to render complete justice. It must be remembered, by ordering police help to the party who has obtained an order of temporary injunction, the court merely takes the follow-up steps to implement its earlier order of injunction. In appropriate cases, where the court finds that a party who had secured an order of injunction from the court is not in a position to have its full benefit owing either to obstruction or non-co-operation of the other side, it is always open to the court to direct the police authorities to see that its order is obeyed. As observed by the Full Bench of the Bombay High Court in Century Flour Mills Ltd. v. Suppiah (1975)2 M.L.J. 54, when there is a violation of an order of injunction granted by the civil court, or when something has been, done in disobedience of such an order of injunction, it is the duty of the court as a matter of judicial Policy to undo the wrong done in disobedience of the court's order and the power to enforce the order of injunction by ordering police aid is available under Section 151 of the Code.
28. The impugned order passed by the Civil Court may not be happily worded. However, what is sought to be conveyed by the Civil Court indirectly in the impugned order, more particularly, on the issue of limitation, is that the proceedings under Rule 2A of Order 39 is a serious matter. The Court is empowered to order to take away the liberty of an individual and order detention in civil prison of the person who violates the order. This power is penal in nature. As discussed above, Page 36 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT the burden is heavily on the person who alleges disobedience to prove the ingredients of the offence beyond reasonable doubt. An order under Rule 2A should not be passed on suspicion or as a matter of course. There should be clear proof that the order to be obeyed was clear and unambiguous and with the full knowledge of the content of the order it was disobeyed. In the case on hand, Saraswatiben is dead and gone. Whether the purchaser was hand in glove with Saraswatiben or not is a question of fact and having regard to the materials on record, the Trial Court has arrived at the conclusion that there is nothing to indicate that the purchaser was hand in glove. Suspicion, however, strong cannot take the place of proof. It goes without saying that the order was flouted and the suit land came to be transferred while the injunction was in operation, but for that purpose, Saraswatiben could have been dealt with appropriately in accordance with law. The injunction was against Saraswatiben. It is, no doubt, true that if any collusion or connivance is established with the purchaser, the purchaser would be equally responsible. However, almost more than two decades have passed so far as the breach complained is concerned.
29. Standard of proof required in the case of breach of injunction:-
29.1 The standard of proof required in the case of threat of disobedience of injunction or alleged breach, disobedience or violation of an order of injunction should be very high and it should be in between the standard of proof beyond reasonable doubt and a standard of balance on probabilities. Be it noted, as held by the Supreme Court in Chottu Ram v. Urvashi Gulati:Page 37 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT
(2001) 7 SCC 530 : 2001 and Anil Ratan Sarkar v. Hirak Ghosh: (2002) 4 SCC 21 that in all cases of contempt the plea should be proved applying the very high standard of proof and not mere affidavits or self-serving statements of the party seeking the intervention of the Court.
29.2 The proceedings under this Rule are quasi-criminal in nature and have a punitive aspect as is evident from the contemnor being liable to be detained in civil prison. They are in substance designed to effect the enforcement or implementation of the order. This is clearly brought out by their identity with the procedure prescribed by the Code for execution of decree for permanent injunction under Order XXI Rule 32 which sets out the method by which such decree can be executed (State of Bihar V. Sonabati Kumari (AIR 1961 SC
221)). The person who complains of disobedience or breach has to clearly make out beyond any doubt that there was an order of injunction directing the opposite party to do or not to do something and there was disobedience or breach of such order. (Food Corporation of India V. Sukh Deo Prasad (2009) 5 SCC 665)). The powers under Rule 2A are required to be exercised with great caution and responsibility. It has, therefore, been held that there should be no element of vindictiveness in punishment. It should commensurate with maintaining the dignity of the Court.
Section 141 read with Order 23 Rule 1(4) of the C.P.C:-
30. Whether the application, Exh.211 under Order 39 Rule 2A of the CPC is barred by the provisions of Order 23 Rule 1(4) of the CPC?. It is not in dispute that the appellant had earlier filed application Exh.185 under Order 39 Rule 2A of the CPC against Page 38 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT the respondents. The said application was withdrawn. Following such withdrawal, a fresh application, Exh.211 came to be filed on the very same day and date. The argument on behalf of the respondents is that Order 23 Rule 1(4) of the CPC precludes the appellant from filing a fresh application in respect of the same subject matter having once abandoned the earlier application or withdrawn the application without any liberty to file a fresh application.
31. The moot question that falls for my consideration is whether an application filed under Order 39 Rule 2A of the CPC for breach or disobedience of injunction can be considered as a proceeding within the meaning of Section 141 of the CPC?. Some of the High Courts have held that the "proceedings" referred to in Section 141 of the CPC refers only to the original matters in the nature of suits, such as proceedings in probate, guardianship and so forth. In some cases like Ramgopal v. Shanti Lal, (1941) All. 807 it has been held that the proceedings which do not originate in themselves but spring out from a suit or from some other proceedings or which arose in connection therewith, do not fall within the ambit of Section 141 of CPC.
32. It may however be noted that the applications under certain provisions of CPC itself have been held to be proceedings within the meaning of Section 141 of CPC. For instance, applications under Section 92 of CPC have been held to be proceedings as contemplated under Section 141 of CPC by Madras High Court in B.S. Adityan v, R Kannan Adityan, (1983) 2 MLJ 32. The proceedings in a suit taken under the Page 39 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT provisions of the CPC which are independent and original in character have been held to be covered by the 'proceedings' referred to in Section 141 of CPC. For instance, the proceedings under Section 24 of the CPC for transfer of suit have been held to be so by the Madras High Court in the case of Subba Reddy v. Narayanaswamy Reddy, (1949) AM 283. In the case of Prem Singh v. Sal Ram, Das, , petition under Order
33. Rule 1 of CPC has been similarly held to come within the purview of Section 141 of CPC. Similarly, an application under Order 34, Rule 5(3) of CPC has been held to be such 'proceeding' by the Madras High Court in the case of Sri Ramulu v. Sri Ramulu, AIR 1933 Mad. 55. An application under Order 34, Rule 6 of CPC has been held to be covered by Section 141 of CPC by the Allahabad High Court in Babulal v. Raghunandhan, AIR 1930 All. 841.
33. The crucial question is whether an application under Order 39 Rule 2A of the CPC can be treated as an independent proceeding which originates in itself or is it a proceeding which is merely ancillary to another proceeding and which springs out from that proceeding.
34. For ascertaining this, it would be necessary to examine the nature of the proceeding under Order 39 Rule 2A of the CPC. At the cost of repetition, I may, once again, quote Order 39 Rule 2A of the CPC. It reads as follows:
"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 2 or breach of any of the terms on which the injunction was Page 40 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT 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 tone 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."
35. It is manifest from the plain reading of the aforesaid provision that:
(I) No proceeding originates with an application under this provision.
(ii) It springs out from the suit proceedings which is already pending before the Court.
(iii) The consequence of application of section 141 of the CPC to any application or proceeding would be that the procedure prescribed in the Code in regard to the suits shall be followed as far as it can be made applicable to such applications or proceedings. The implication is that Section 141 of the CPC would require the Court to follow the procedure prescribed in the Code as regards the withdrawal and adjournments of the suits governing within Order 23 of the CPC. Thus, the thrust is on the following of the "procedure" prescribed by the Code in the suit. Section 141 of the CPC will not apply so far as the substantive rights are concerned. It talks only about the Page 41 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT procedure.
36. I have, to my advantage, a very exhaustive judgment of the Gauhati High Court on the subject. In Hareswar Roy vs. Mustt. Monowara Begum & Ors., reported in 2010 GAUHATI 22, a learned Single Judge of the High Court was called upon to decide the question whether the provisions embodied under Order 17 are applicable to an application under Order 39 Rule 2A of the CPC or not?. The High Court examined the question keeping in mind whether an application under Order 39 Rule 2A can be treated to be a "proceeding" within the meaning of Section 141 of the Code. The High Court considered as to what a "proceeding" within the meaning of Section 141 is. The High Court discussed three important decisions of the Supreme Court on the subject. The first decision considered by the High Court is in the case of Munshi Ram vs. Banwari Lal, AIR 1962 SC 903, the second decision considered is in the case of Ram Chandra Agarwal vs. State of Uttar Pradesh, AIR 1966 SC 1888 and the third judgment considered is in the case of Nawab Usman Ali Khan vs. Sugar Mai, AIR 1965 SC 1798. The observations of the High Court are as follows:
"7. The question, posed above, brings me to the provisions of Section 141, which reads as follows :
"141. Miscellaneous proceedings. - The procedure provided in this Code in regard to suit shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.
Explanation:-In this section, the expression "proceedings"
includes proceedings under Order IX, but does not include any proceeding under Article 226 of the Constitution".
Page 42 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT8. The question as to what the word 'proceeding', occurring in Section 141, conveys is not easy to answer, for, Section 141 has a long and, interestingly enough, a tumultuous past. In this regard, worth noticing it is that the Code has, as a whole, undergone several amendments since its introduction in the year 1859, the principal amendments being in 1861, 1877, 1882, 1908, 1999 and 2002.
9. In the Code of 1859, there was no provision (as the one, which we have, under Section 141), laying down the procedure for trial of miscellaneous proceedings. It was, for the first time, in the Code of 1861 that such a provision was introduced. The said provisions came to be retained in Section 647 of the Code of 1877 and the Code of 1882 too. Section 647 of the Code of 1877 and 1882 read as follows :
"The procedure herein prescribed shall be followed, as far as it can be made applicable, in all proceedings in any Court of Civil jurisdiction other than suits and appeals."
10. To put an end to the difference of views among the High Courts as to whether a 'proceeding', in execution, falls within Section 647, an Explanation was added to the Section 647 by the CPC (Amendment) Act of 1892, which read thus : "Explanation. This section does not apply to applications for execution of decrees, which are proceedings in suits."
11. Laying down as to what the term proceeding, appearing in Section 647, conveyed, the Privy Council, in Thakur Prasad v. Fakirullah, reported in ILR (1895) 17 All 106 (PC), held and observed :
"their Lordships think that the proceedings, spoken of in Section 647, include original matters in the nature of suits, such as, the proceedings in probate, guardianship and so forth and do not include executions."
12. Though Thakur Prasad (supra) settled the meaning of the word "proceedings" in Section 647 (presently, Section
141) by laying down that 'proceedings' "include original matters in the nature of suits", it gave rise to a fresh spate of conflicting views from the various High Courts on Page 43 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT the meaning of the words, "original matters" occurring in Thakur Prasad (supra). For instance, while there was one set of decisions taking the view that an application under Order IX, Rules 9 and 13, same as applications made under Order XXI, Rules 89, 90, 91, 97 and 100, are original matters, the other set of views was that these are not original proceedings, for, the applications, made under Order IX, Rules 9 and 13, trace their origin to suits and, similarly, the applications, made under Order XXI, Rules 89, 90, 91, 97, 99 and 100, owe their birth to execution proceedings. The reason for the controversy, which so erupted, was that the word "original" was capable of, at least, two different shades of meanings. In its primary sense, the "original matters" would means those matters, which are capable of coming into existence on its own and not as derivative to some other suit or proceeding; for example, a proceeding for probate or guardianship comes into existence on its own and these proceedings do not owe their birth to any other proceeding. In contrast, a proceeding, under Order IX, Rules 9 and/or 13, same as proceedings under Order XXI, Rules 89, 90, 91, 97 and/or 100, derive their birth from suits and execution proceedings respectively. These proceedings are, strictly speaking, not original in nature, rather, these proceedings are derivatives or off-shoots of either suits or execution proceedings. However, though derivatives or off-shoots, the proceedings, under Order IX, Rules 9 and 13, are nevertheless independent of the suit and take birth on dismissal of the suit or on passing of the ex parte decree. Similarly, the proceedings, under Order XXI, Rules 89, 90, 91, 97 and 100, are original proceedings in a limited sense, for, these proceedings too are not really different stages of any execution proceeding, but are independent thereof. To put it differently, since these proceedings are not different stages of the suits or of the execution proceedings to which they owe their birth and are, in a limited sense, independent of the suit or the execution proceedings to which they owe their birth inasmuch as none of these proceedings rests on the pendency of the suit or the execution proceeding, these proceedings can be regarded as 'original matters', though in a limited sense. Such conflicting views from the High Courts, therefore, rested on the interpretation of the Privy Council's decision, in Thakur Prasad (supra), revolving around the meaning of the word "original" used therein.
Page 44 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT13. When the controversy as to what can be considered as 'original matters' for the purpose of Section 141 was thus on, came the decision of a three Judges Bench in Dokku Bhushayya v. Katragadda Ramakrishnayya, (AIR 1962 SC 1886). In this case, a person named Bapiah instituted a suit against Dokku Bhushayya, then a minor, his father and another person on a promissory note executed by the two last mentioned persons. Dokku Bhushayya was represented in the suit, by his maternal grand father as his guardian ad litem , A decree was passed in the suit. The decree-holder put the decree in execution and obtained an order for the sale of certain properties in which Dokku Bhushayya's interest was involved. The properties were sold in due course in favour of a clerk of the decree-holder. Thereafter, Dokku Bhushayya's guardian ad litem made an application, under Order XXI, Rule 90 of the Code of Civil Procedure, for setting aside the sale. Later, however, the guardian ad litem came to a settlement with the decree-holder and the auction-purchaser. According to the terms of settlement, the guardian ad litem was to give up his contention regarding the invalidity of the sale and withdraw the petition made for setting aside of the sale and also give up possession of the properties sold to the auction purchaser and, in return thereof, the decree- holder and the auction-purchaser agreed to give up their claim for costs of the petition. In pursuance of this agreement, the petition was withdrawn and dismissed by order made on August 12, 1932. After attaining majority, Dokku Bhushayya filed a suit, in the year 1944, to set aside the order of August 12, 1932, and for a re-hearing of the petition, which was dismissed by the order passed on that date. The suit was decreed by the trial Court, but on appeal, the decision of the trial court was reversed by the High Court at Madras and the suit was ordered to be dismissed. It was in these circumstances that Dokku Bhushayya came, in appeal, before the Supreme Court. The question, which, thus, came up before the Supreme Court was as to whether the order of August 12, 1932, was voidable under Order XXXII, Rule 7 of the Code of Civil Procedure, 1908, at the instance of the appellant? Order XXXII, Rule 7, it may be noted, forbids the guardian from entering into any agreement or compromise, on behalf of a minor, with reference to a suit without leave of the Court and provides that any such agreement or Page 45 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT compromise, entered into without the leave of the Court, shall be voidable against all parties other than minor.
14. Referring to, and relying upon, Thakur Prasad (supra), the Supreme Court, in Dokku Bhushayya (supra), observed and held, "this view has ever since been followed. We have already held that the application by the judgment-debtor to set aside the sale is a proceeding in execution and, therefore, Section 141 of the Code will not apply for two reasons, namely, (1) as execution proceedings were continuation of suit within the meaning of Order XXXII, Rule 7 of the Code, and as the Code provided specifically for suits. Section 141 could not be invoked, and (2) as we have held, an application by a judgment-debtor to set aside a sale, is a proceeding in execution, and, therefore, Section 141, which applies only to original proceedings, does not apply to such proceedings."
15. What, in substance, the Apex Court held, in Dokku Bhushayya (AIR 1962 SC 1886) (supra), is that to be a 'proceeding', within the meaning of Section 141, the proceeding must not be a stage and/or continuation of another proceeding or suit since an execution proceeding (same as an appeal) is merely a continuation or extension of the suit, execution proceedings cannot be regarded as proceedings within the meaning of Section
141. In other words, as a stage in a suit, such as, an execution proceeding, or a proceeding, which rests on the pendency of the suit or the appeal, such as, an application for temporary injunction, not being an original and independent proceeding, is not a proceeding within the meaning of Section 141.
16. I may briefly pause here to point out that since an application for injunction, made under Order XXXIX, Rules 1 and 2 lies only during the pendency of the suit or appeal, it logically follows that though an application for temporary injunction, made under Order XXXIX, Rules 1 and 2, are registered as miscellaneous proceedings, such applications for temporary injunction, do not really give rise to 'proceedings' within the meaning of Section 141, for, application for temporary injunction can neither be treated as a 'proceeding' in the nature of an original suit nor can it be treated as a proceeding, which is independent of the existence of the suit or the appeal. No Page 46 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT wonder, therefore, that in Shiv Shakti Co-op. Housing v. Swaraj Developers, reported in (2003) 6 SCC 659 : (AIR 2003 SC 2434), while summarizing the effect of the recent amendments to the Code, the Apex Court observed thus :
"32. A plain reading of Section 115 as it stands makes it clear that the stress is on the question whether the order in favour of the party applying for revision would have given finality to suit or other proceeding. If the answer is "yes" then the revision is maintainable. But on the contrary, if the answer is 'no' then the revision is not maintainable. Therefore, if the impugned order is interim in nature or does not finally decide the lis, the revision will not be maintainable. The legislative intent is crystal clear. Those orders, which are interim in nature, cannot be the subject-matter of revision under Section 115."
17. The decision rendered in Shiv Shakti Co-op. Housing (supra), makes it abundantly clear that granting or not granting of injunction does not finally dispose of the suit or the proceeding within the meaning of Section 141. Had an injunction application made, under Order XXXIX, Rules 1 and 2, been a 'proceeding' within the meaning of Section 141, granting of temporary injunction and/or refusal to grant temporary injunction could have been taken to have disposed of the 'proceeding' within the meaning of Section 141 and revision against such an order would have, then, been maintainable. However, since an application for temporary injunction, though registered as a miscellaneous proceedings, does not really give rise to a 'proceeding', which is either original or not dependent on the survival of the suit or the appeal, it cannot be regarded and is, in fact, not regarded as a proceeding within the meaning of Section
141. Thus, granting of temporary injunction or refusing to grant temporary injunction and/or affirming temporary injunction by an appellate Court does not end the 'proceeding'; hence, such a temporary order of injunction, in the light of the Shiv Shakti Co-op. Housing (supra), is not revisable.
18. What may, now, be noted is that in Munshi Ram v. Banwari Lal (AIR 1962 SC 903), a two Judges Bench of the Supreme Court held that it was competent for the Court, before which an award by an arbitrator is filed, to pass a Page 47 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT decree in terms of a compromise reached by the parties to the arbitration award, though the compromise entered into by the parties may be at variance with the arbitral award. Referring to the decision in Munshi Ram (supra), a two Judges Bench of the Supreme Court observed and held, in Ram Chandra Agarwal v. State of Uttar Pradesh, (AIR 1966 SC 1888) thus, "Similarly, recently this Court has held in Munshi Ram v. Banwari Lal, AIR 1962 SC 903, that under Section 41 of the Arbitration Act and also under Section 141, CPC, it was competent, for the Court, before which an award made by an arbitration tribunal is filed for passing a decree in terms thereof, to permit parties to compromise their dispute under O. XXIII, R. 3, CPC. Though there is no discussion, this Court has acted upon the view that the expression "civil proceeding" in S. 141 is not necessarily confined to an original proceeding like a suit or an application for appointment of a guardian, etc., but it applies also to a proceeding which is not an original proceeding."
19. It may be carefully noted that the decision in Ram Chandra Agarwal (supra), was rendered without, of course, referring to Thakur Prasad (supra) and Dokku Bhushayya (supra). Be that as it may, what the Supreme Court held, in Ram Chandra Agarwal (supra), was that a proceeding, in order to fall within the meaning of the word 'proceeding' in Section 141, need not necessarily be an original proceeding.
20. What, however, needs to be borne in mind is that though in the light of the decision in Ram Chandra Agarwal (AIR 1966 SC 1888) (supra), a 'proceeding', for the purpose of being a proceeding under Section 141, may not necessarily be an original proceeding, such as, an application for probate, yet a 'proceeding', in order to be a proceeding within the meaning of Section 141, has to be nevertheless a 'proceeding', which is not a stage of an already pending proceeding and is also not dependent on the existence or survival of another proceeding. A proceeding under Order IX of the Code falls within the meaning of the word 'proceeding' in this limited sense. No wonder, therefore, that the Explanation to Section 141 specifically makes a proceeding under Order IX of the Code a miscellaneous proceeding within the meaning of Section 141. These proceedings take birth from dismissal of the suit or from passing of an ex parte Page 48 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT decree in the suit. Though born out of the suits, these proceeding are not stages of the suit, such as, execution proceeding.
21. Can, therefore, the decision in Ram Chandra Agarwal (supra), be read to mean that every 'proceeding', during the progress of a suit or an appeal, such as, the proceeding arising out of an application for temporary injunction, be treated as a proceeding within the meaning of Section 141? Would such a reading of the decision in Ram Chandra Agarwal (supra) not be an incorrect proposition of law? While answering this crucial question, what needs to be borne in mind is that the decision of the five Judges Bench, in Thakur Prasad (supra), has not been completely overruled and that the decision in Dokku Bhushayya (AIR 1962 SC 1886) (supra), has been rendered by a Bench of three Judges, hence, the decision of two Judges Bench, rendered in Ram Chandra Agarwal (AIR 1966 SC 1888) (supra), cannot be read to ran wholly contrary to the law laid down in Thakur Prasad (supra), and also Dokku Bhushayya (supra). The decision in Ram Chandra Agarwal (supra), therefore, needs to be read in its correct perspective. When so read, it becomes abundantly clear, as already indicated hereinabove, that a 'proceeding' under Section 141, though may not be original, has to be, nevertheless, a 'proceeding', which is not really an extension of suit or appeal and though an offshoot from either a suit or an appeal, it has to be independent of the existence of the suit or the appeal in the sense that for its existence and survival, such a 'proceeding' must not depend on the survival of the suit or the appeal. Such a proceeding may, therefore, come into existence, when the suit or the appeal is not pending for disposal. Viewed thus, a 'proceeding' under Order IX, Rule 4, for restoration of a suit, is a 'proceeding' within the meaning of Section 141, for, a 'proceeding' under Order IX, Rule 4, is, strictly speaking, not an extension of suit and though it may be regarded as an offshoot from a suit, it comes into existence, when the suit is not pending and it is capable of standing on its own. Similarly, an application made under Order IX, Rule 13 seeking to get set aside an ex parte decree is a 'proceeding', within the meaning of the expression 'proceeding', occurring in Section 141. Considered in this light, a proceeding, which starts with the filing of an application for restoration or read-mission Page 49 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT of appeal under Order XLI, Rule 19, is also a proceeding, for, it is not really an extension of suit or appeal, and though an off shoot therefrom, it is an independent proceeding capable of standing on its own. In short, thus, an application, under order XLI, Rule 19, gives rise to a 'proceeding' within the meaning of Section 141.
22. While considering the above aspect of the matter, what also needs to be borne in mind is that the Code stands divided, broadly speaking, into two parts. While the main body of the Code, which consists of Sections, creates jurisdiction for the civil courts, the Rules, framed under various Orders, indicate the procedure for exercise of such jurisdiction. In other words, the Rules, framed under various orders of the Code, lay down the procedure for exercise of the powers conferred on such Courts. Taking note of this prominent feature of the Code, observed the Supreme Court, in Vareed Jacob v. Sosamma Greevarghese, reported in (2004) 6 SCC 378 :
(AIR 2004 SC 3992), thus :
"the main feature of the Code is its division into two parts. The main body of the Code consists of Sections which create jurisdiction while the rules indicate the manner in which the jurisdiction has to be exercised."
23. Coupled with the above, it is also imperative to note that Section 141 makes applicable to a 'proceeding' (which can be described as a 'proceeding' under Section
141) only procedural part of the Code and not that part, which relates to jurisdiction of the Courts under the Code . It was in this view of the matter that the Apex Court held, in Nawab Usman Ali Khan v. Sagar Mai (AIR 1965 SC 1798), that by virtue of Section 141 of the Code, only the procedure provided for suits in the Code and not the substantive right of the appellant thereunder can be applied to proceeding under the Arbitration Act. In short, only procedural part of the Code will apply to proceedings under Section 141 and not the substantive rights of the parties or the provisions creating jurisdiction of the Courts under the Code.
24. Bearing in mind as to what a 'proceeding' means and conveys, let me, now, turn to Order XXXIX, Rule 2A, which reads as under :
Page 50 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT"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, of the Court granting in 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."
25. From a bare reading of Rule 2A of Order XXXIX, it becomes clear that Order XXXIX, Rule 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 directs his release. The order, which is made under Rule XXXIX, Rules 1 and 2, may be varied, discharged and even set aside by the Court in terms of the provisions contained in Order XXXIX, Rule 4, An order of injunction, made under Order XXXIX, Rules 1 and 2, may be set aside even in appeal by taking resort to Order XLIII. Notwithstanding the fact that an order of injunction, passed under Order XXXIX, Rule 1 and 2 may be set aside, varied or discharged, the disobedience of any injunction order granted, or any other order, made under Rule 1 and Rule 2 of Order XXXIX, remains punishable, as provided under Rule 2A of Order XXXIX. Thus, an enquiry under Order XXXIX, Rule 2A survives notwithstanding the fact as to whether the order of injunction, or any order, made under Rules and 2 of Order XXXIX has or has not been set aside, discharged or varied. The reasons is very simple, and the reason is that so long as the order of injunction, or any other order, made under Rules 1 and 2 of Order XXXIX, 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 Page 51 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT embodied in Order XXXIX, Rule 2A. Thus, an application under Order XXXIX, Rule 2A, does give rise to a 'proceeding' within the meaning of Section 141.
26. Bearing in mind the fact that Order XXXIX, Rule 2A gives rise to a 'proceeding', let me, now, turn to Section 141 of the Code, which is reproduced below :
"Miscellaneous proceedings. - The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction."
27. A careful perusal of the provisions, contained in Section 141, clearly reveals that the procedure, provided in the Code, in regard to suit shall be followed as far as it can be made applicable, in all proceedings, in any Court of civil jurisdiction. Unless, therefore, it can be shown that the procedural provisions, contained in the Code, relating to suits, are not applicable mutatis mutandis to a 'proceeding' within the meaning of Section 141, the procedural provisions, contained in the Code, would be applicable to the 'proceeding' too under Section 141. Consequently, unless there is something in the provisions contained in Order XVII, Rule 1(1), which makes it impossible to apply these provisions to a 'proceeding' under Section 141, such as, the proceeding under Order XXXIX, Rule 2A, the provisions contained, as regards granting of time or adjournment in a suit, must be applied to a 'proceeding' too.
37. Thus, the High Court ultimately held that an application under Order 39 Rule 2A does give rise to a "proceeding" within the meaning of section 141.
38. I am in complete agreement with the view of the Gauhati High Court and I would like to follow the same.
39. Once I hold that an application under Order 39 Rule 2A does give rise to a "proceeding" within the meaning of section Page 52 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT 141 of the CPC, then the provision of Order 23 Rule 1(4) of the CPC would apply. Once, the provision of Order 23 Rule 1(4) of the CPC is made applicable, then the question would be whether the application in the instant case, i.e., Exh.211 could be said to be maintainable in view of the fact that the application filed first in point of time with regard to the same subject matter, i.e, Exh.185 was withdrawn without any liberty to file a fresh application.
40. Let me, at the outset, clarify that I am not impressed by the submission canvassed on behalf of the respondents that the application, Exh.211 is hit even by the rule of res-judicata. The rule of res-judicata applies to a case where the suit or an issue has already been heard and finally decided by a Court. In the case of abandonment or withdrawal of a suit, without the permission of the Court to file a fresh suit, although there is no prior adjudication of a suit or an issue is involved, yet the Code provides, that a second suit will not lie under Sub-Rule (4) of Rule 1 of Order 23 of the Code when the first suit is withdrawn without the permission referred to in Sub-Rule (3) in order to prevent the abuse of a process of the Court.
41. To overcome the hurdle of Order 23 Rule 1(4) of the CPC, it is sought to be argued that the application, Exh.185 was withdrawn by the concerned advocate on account of lack of communication and it was made clear while withdrawing the application, Exh.185 that the same was being withdrawn at that stage. It is argued that the words "at that stage"
necessarily implies that the intention was not to abandon the claim. It is also sought to be argued that the order permitting Page 53 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT withdrawal was also passed in terms of the endorsement which was put on the pursis by the concerned advocate. Therefore, according to the learned senior counsel appearing for the appellant, the Court, indirectly, could be said to have granted the permission to withdraw the application, Exh.185 with liberty to file a fresh application for the same cause of action in future.
42. The question for my consideration is whether I should look into the circumstances which had necessitated the withdrawal of the application, Exh.185 and also the circumstances, in which, the fresh application, Exh.211 was filed.
43. In the peculiar facts and circumstances of the case, I am of the view that the application, Exh.211 could not have been rejected by the Civil Court on the ground that Exh.185 was withdrawn without any liberty to prefer a fresh application. I am at one with Mr. Parikh, the learned counsel appearing for the appellant that the circumstances, in which, the application was withdrawn with a particular endorsement on the pursis would indicate that there was no intention to withdraw or abandon any part of any claim on merits. Mr. Parikh is right in his submission that the principle of res-judicata would not apply to any interim application. (see Arjun Singh vs. Mohindra Kumar & Ors., reported in AIR 1964 SC 993) (Para-13) Proceedings under Order 39 Rule 2A of the CPC against a third party:
44. The above takes me to consider the question whether the respondent No.2 (purchaser,) not being a party to the suit at Page 54 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT the time of the grant of temporary injunction and claiming to be unaware of such temporary injunction, could be said to have breached the same.
45. The word 'person' as appearing in Sub-rule (1) of Rule 2A of Order 39 is wide enough to engulf a person, who is an agent, a servant and a workman. Rule 2A was introduced by the Amending Act of 1976. It takes the place of Sub-rules (3) and (4) of Rule 2 of Order 39. The said sub-rules have been deleted from rule 2 by the said Amending Act. In addition to reproducing the provisions of Sub-rules (3) and (4) of Rule 2, the new Rule 2A provides for the breach of an order of injunction passed under Rule 1 of the said Order, and it also provides penalty for the breach or disobedience of an order of injunction made under Rule 1 or Rule 2. While considering a case under Sub-rules (3) and (4) of Rule 2, as it existed prior to the amendment, the Supreme Court in The State of Bihar v. Sonabati Kumari, AIR 1961 SC 221, held that the expression 'person' appearing in Order 39, Rule 2A has been employed merely compendiously to designate every one in the group defendant, his agents, servants and workmen and not for excluding any defendant against whom the order of injunction has primarily been passed. If such were not the law, orders of injunction would be rendered nugatory by their being contravened by the agents and servants of the parties, and it could be conveniently defied by setting up a third party. This legal position is brought out by the terms of an injunction order set out in Form 8 of Appendix F to the CPC. Whether a person not impleaded in the suit and not named in the injunction order can be proceeded against under Order 39, Rule 2A for violation Page 55 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT of the order depends on the facts and circumstances of the case?. An injunction is an equitable relief and it is trite law that equity acts in personam. Therefore, an injunction is a personal matter.
46. An injunction is a judicial process whereby a person is ordered to be restrained from doing or to do a particular act or thing in a particular manner. The former is called the "restrictive injunction" and the latter a "mandatory injunction". An interlocutory or interim injunction is to preserve matters "in site" until the case can be tried. The ordinary rule, therefore, is that the person disobeying the order of injunction is to be proceeded for contempt as the person named in the writ. Persons who are not parties where order of injunction is passed are normally not to be proceeded against for disobeying the injunction. However, the exception to this general rule is that where it is alleged and proved that the person who violated the order of injunction was an agent or servant or workman of the person against whom the order of injunction was passed, the proceeding can be validly initiated against such person. In such a case the person violating the order can be proceeded against, and also who have acted in abetting the violation of the order of injunction. The violation of an injunction is punishable under the Code itself. The nature of the proceedings and quality of evidence which are required to be proved and established may be of the standard of a criminal proceeding, though the proceeding is punitive in nature. However, stricter proof than civil actions is necessary. Though the proceedings under Order 39, Rule 2A have a punitive aspect as is evident from the contemner being liable to be Page 56 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT ordered in civil prison, they are designed to effect the enforcement of or to execute the order. This is clearly brought out by their identity with procedure prescribed by Order 21, Rule 32 for the execution of a decree of a permanent injunction. It is, however, to be borne in mind that where a person who is not a party to the suit is proceeded against in order to punish him it is essential that he should be made a party to the proceeding for violation and it should be brought home by sufficient and unimpeachable evidence that he had been guilty of abetting violation of injunction. A party proceeded against for violation of injunction can prove his innocence in the following manner, i.e. by proving that (a) the order was not within his knowledge, or (b) the order was ambiguous and was reasonably capable of more than one interpretation or (c) that in fact he did not intend to disobey the order, but conducted himself in accordance with his interpretation of the order. The question whether a party has understood an order in a particular manner, and has conducted himself in accordance with such a construction is primarily one of fact. The party setting up such a plea has to prove it. (see Prafulla Kumar Mohapatra vs. Jaya Krushna Mohapatra, AIR 1994 Ori. 173)
47. In short, to put it pithily, can it be said that for a breach of the injunction by a party or a stranger for aiding or abetting the breach alone, the Court's inherent power can be exercised and not in a case of a third party, who had the knowledge of the order, but decided to violate it, who may be guilty of obstructing the administration of justice still, will not be subject to any restitution order? This I feel needs no detailed Page 57 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT discussion. No person can obstruct the path of justice. No one can escape by committing a gross and violent obstruction to the implementation of the order/direction of the Court. The only question relevant in such a situation will be, whether the right which such a person has pleaded has been acquired by the violation of the order or had existed in him independently unaffected by the injunction. There can be no other law than one stated above that no person should be allowed to reap the benefits of a wrong done by him and thus whether he is a guilty of civil contempt or criminal contempt, the wrong doer can always be subjected to the inherent jurisdiction of the Court, which is not different for the civil or criminal contempt. Whether it is a civil concept or a criminal contempt, it is a contempt of Court and the disobedience of the order in any case is an obstruction in the administration of justice.
48. In my view, although there is some circumstantial evidence on record to indicate the collusion between Saraswatiben and the respondent No.2 purchaser, yet the same may not be sufficient enough to proceed against the respondent No.2 under Order 39 Rule 2A of the CPC. In this regard, the vociferous submission canvassed on behalf of the appellant is that the impugned order be quashed and the matter be remitted to the Civil Court for fresh consideration of the application, Exh.211 along with the suit. In other words, the appellant wants this Court to remit the matter to the Civil Court with a direction that the application, Exh.211 may be heard afresh and decided on the basis of the evidence that may be led by the parties in the suit proceedings, oral as well as documentary. In the facts and circumstances of the case, I Page 58 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT am not inclined to do so.
49. In the aforesaid context, Mr. Joshi invited the attention of this Court to a decision of the Supreme Court in the case of Sree Panimoola Devi Temple (supra), wherein the Supreme Court observed as under:
"If the plaintiffs had not led sufficient evidence to establish their case, as held by the High Court, ordinarily, that should have been the end of the matter. In any case, the conclusion of the High Court that the Exts.B-1 to B-4 were not sufficient to reach any positive conclusion does not commend to us in view of the elaborate consideration of the said documents by the learned trial court to reach the conclusion that the temple was a private temple. In such circumstances, remand of the suit for de novo consideration virtually gives to the plaintiffs a second opportunity to establish their case."
50. Applying the aforesaid analogy, Mr. Joshi submitted that the appellant, having failed to adduce evidence sufficient enough to hold the purchaser guilty of the disobedience or breach of the injunction order, he cannot seek a second innings by praying for remand of the application, Exh.211 for de novo cosideration.
51. Prima facie, it appears that the appellant is seeking remand of the matter in the hope that if, ultimately, he succeeds in establishing the collusion between the late Saraswatiben and the respondent No.2 and if the Court holds the respondent No.2 guilty in any manner, then he can seek a declaration from the Court that the sale deed executed in breach of the order of injunction be declared as invalid. The Page 59 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT suit instituted by the appellant is for specific performance of contract. If the appellant succeeds in getting the sale deed declared as invalid on account of the breach of the order of injunction, then the contest in the suit would be straight between the appellant and the legal heirs of late Saraswatiben. If the sale deed is not declared to be invalid on account of being executed in breach of the order of injunction, then the appellant will have to seek a decree against the respondent No.2 being the purchaser having stepped into the shoes of the original owner. In short, if, ultimately, the relief of specific performance is granted, then the Court may direct the respondent No.2 to execute the sale deed in favour of the appellant.
52. It is too late in the day for the appellant to seek an order from the Court declaring the sale to be invalid in view of the alleged breach of injunction order. In Thomson Press (India) Ltd. vs. Nanak Builders & Investors P. Ltd. & Ors., AIR 2013 SC 2389., the Supreme Court observed in Para-52 as under:
"52.There is, therefore, little room for any doubt that the transfer of the suit property pendete lite is not void ab initio and that the purchaser of any such property takes the bargain subject to the rights of the plaintiff in the pending suit. Although the above decisions do not deal with a fact situation where the sale deed is executed in breach of an injunction issued by a competent Court, we do not see any reason why the breach of any such injunction should render the transfer whether by way of an absolute sale or otherwise ineffective. The party committing the breach may doubtless incur the liability to be punished for the breach committed by it but the sale by itself may remain valid as between the parties to the transaction subject only to any directions which the Page 60 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT competent Court may issue in the suit against the vendor."
53. Thus, in the aforesaid decision of the Supreme Court, it has been made explicitly clear that even if the sale deed is executed in breach of any order of injunction, the sale, by itself, will not be invalid. The sale will remain valid as between the parties to the transaction subject only to any directions which the competent court may issue in the suit against the vendor. At the same time, the Supreme Court clarified that the party, committing breach, may undoubtedly, incur the liability to be punished for the breach committed, but the sale, by itself, may remain valid as between the parties to the transaction.
54. I must remind myself that I am deciding a miscellaneous civil appeal under the provisions of Section 104 read with Order 43 Rule 1 of the CPC. The Appellate Court will not interfere with the exercise of discretion of the court of the first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating the adjudication of an application like one under Order 39 Rule 2A of the CPC. It is a settled principle of law that an appeal against exercise of discretion is said to be an appeal on principle. The Appellate Court should not reassess the material and seek to reach a conclusion different from the one reached by the court below solely on the ground that if it had considered the matter at the interim stage of the trial, it would have come to a contrary conclusion. If the discretion has been exercised by the court Page 61 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT below reasonably and in a judicial manner, the fact that the appellate court would have taken a different view, may not justify the interference with the trial court's exercise of discretion. (See Wander Ltd. & Anr. vs. Antox India P. Ltd., (1990) SCC 727)
55. In the overall view of the matter, I have reached to the conclusion that I should not disturb the order passed by the Civil Court, rejecting the application, Exh.211. I am of the view that the day, the Civil Court rejected the application, Exh.209 preferred by the plaintiff for the purpose of restraining the respondent No.2 herein from developing the suit property, the issue with which I am concerned in the present appeal practically came to an end. The order of the Civil Court, rejecting the application, Exh.209, ultimately came to be affirmed by this Court in the appeal from order, and in the last, the order of the High Court passed in the appeal from order came to be affirmed by the Supreme Court. The respondent No.2 was permitted to develop the suit property. With all these developments, it will be too much to say now at this stage that the respondent No.2 had colluded or connived with late Saraswatiben and thereby committed breach of the order of injunction and should be appropriately punished.
56. In the result, this appeal fails and is hereby dismissed. The Special Civil Suit No.66 of 1992 should now be taken up for hearing and shall be disposed of within a period of one year from the date of the receipt of the writ of this order by the Civil Court. The Special Civil Suit No.66 of 1992 shall be decided by the court concerned on its own merits without being influenced Page 62 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019 C/AO/371/2015 CAV JUDGMENT in any manner by any of the observations made by this Court in this judgment.
57. In view of the order passed in the main matter, civil application, if any, stands disposed of.
(J. B. PARDIWALA, J) Vahid Page 63 of 63 Downloaded on : Tue Jul 30 20:57:28 IST 2019