Chattisgarh High Court
Poonam Shukla vs Rahul Shukla on 11 June, 2025
Author: Narendra Kumar Vyas
Bench: Narendra Kumar Vyas
2025:CGHC:22984
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
WP227 No. 469 of 2025
1 - Poonam Shukla W/o Late Santosh Kumar Shukla Aged About 45 Years R/o
Kamthi Line Rajnandgaon, Tahsil And District- Rajnandgaon (C.G.)
... Petitioner(s)
versus
1 - Rahul Shukla S/o Manoj Kumar Shukla Aged About 40 Years R/o- Kamthi
Line Rajnandgaon, Tahsil And District- Rajnandgaon (C.G.) At Present R/o- Q.
No. 303, Rajendra Bhawan, Ntpc Kahalgaon, District- Bhagalpur (Bihar)
---- Respondent(s)
---------------------------------------------------------------------------------------------------------
For petitioner : Mr. Ratnesh Kumar Agrawal, Advocate.
Hon'ble Shri Justice Narendra Kumar Vyas.
Order on Board 11.06.2025
1. The petitioner has filed the present writ petition under Article 227 of the Constitution of India assailing registration of MJC No. 150/2019 against the petitioner on the application filed by the respondent under Order XXXIX Rule 2-A of the Code of the Civil Procedure for violation of interim injunction passed by the trial Court on 01.10.2009 under Order XXXIX Rule 1 and 2 read with Section 151 of the Code of the Civil Procedure in Civil Suit No. 27-A/2009 whereby direction for maintenance of status quo was given.
KISHORE KUMAR DESHMUKH Digitally signed by KISHORE KUMAR DESHMUKH Date: 2025.06.20 10:51:29 +0530 2
2. The brief facts as reflected from the record are that the plaintiff has filed Civil Suit No. 27-A/2009 for declaration of title of suit property described in Schedule-B of the plaint and partition of the suit property to the extent of ¼th separate share. The plaintiff has also filed an application for injunction against the defendant and the learned trial Court vide its order dated 01.10.2009 has ordered for maintaining the status quo with regard to the suit property. Thereafter, it has been alleged that the defendant has started construction over the suit property, as such, application under Order XXXIX Rule 1 and 2 CPC was filed on 16.10.2019. The record of the case further demonstrates that the said civil suit was dismissed on 31.10.2019.
3. From perusal of the order-sheets it is quite vivid that the plaintiff has been examined before the trial Court on 12.12.2024 by way of an affidavit as provided under Order 18 Rule 4 of the CPC in the proceedings initiated under Order XXXIX Rule 2A CPC but the cross- examination could not be done, as such the matter was fixed for cross-examination of plaintiff on 26.02.2025, 27.02.2025, 03.04.2025, 04.04.2025 and thereafter the matter was again fixed for the evidence of the plaintiff on 07.05.2025, thereafter, the petitioner has moved the present writ petition on 08.05.2025 under Article 227 of the Constitution of India challenging the registration of Miscellaneous Judicial Case against them for breach of injunction.
4. Learned counsel for the petitioner would submit that the petitioner has not disturbed the status quo order passed by the trial Court and since 3 Civil Suit No. 103A/2011 has been dismissed on 31.10.2019 by the trial Court, as such, the interim order passed by the Court has lost its significance, therefore, the proceeding initiated against the petitioner deserves to be quashed. To substantiate his submission he would refer to judgments passed by the Hon'ble Supreme Court in case of Neelam Gupta and Others vs. Rajendra Kumar Gupta and Others {Civil Appeal No. 3159-3160 of 2019 decided on 14.10.2024}, Kanwar Singh Saini vs. High Court of Delhi {2012 (4) SCC 307} and Food Corporation of India vs. Sukh Deo Prasad {2009 (5) SCC 665} and would submit that the proceeding drawn by the learned trial Court is without jurisdiction and would pray for quashment of the entire proceedings.
5. I have heard learned counsel for the petitioner and perused the documents annexed with the petition.
6. From the submission made by the learned counsel for the petitioner and the documents annexed with the writ petition, the point emerged for determination is 'whether the application for breach of injunction is not sustainable in view of subsequent dismissal of the suit?'
7. For proper adjudication of the issue raised in the present writ petition it is expedient for this Court to extract relevant provisions of the CPC which are extracted as under :-
Order XXXIX, Rule 1 provides that where in any suit it is proved by affidavit or otherwise:
(a) that any property in disputed in a suit is in danger of being wasted, damaged or alienated by any party to the suit or wrongfully sold is of a decree, or 4
(b) that the defendant threatens or intends to remove or dispose of his property with a view to defrauding his creditors, or
(c) that the defendant threatens or dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or disposession of the plaintiff or otherwise causing injury to the plaintiff in relatino to any property in dispute in the suit as the Court thinks fit, until the disposal of the suit or until further orders.
● Order XXXIX, Rule 2 provides injunction to restrain or continuance of breach:
(1) In suit for restraining the defendant from committing a breach of contract or otherwise injury of any kind, whether compensation is claimed in the suit or not the plaintiff may, at any time, after the commencement of the suit and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of or injury complained of or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property.
(2) The Court may by order grant such injunction on such terms as to the duration of the injunction, keeping an account, giving security or otherwise, as the Court thinks fit.
Order XXXIX, Rule 2A Consequence of disobedience or breach of injunction:
(1) In the case of disobedience of any injunction granted or other order made under rule 1 or rule 2 or breach of any of the terms on which the injunction was granted or the order made, the Court granting the injunction or making the order, or any Court to which the suit or proceeding is transferred, may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the Court directs his release.
(2) No attachment made under this rule shall remain in force for more than one year, at the end of which time if the disobedience or breach continues, the property attached may be sold and out of the proceeds, the Court may award such compensation as it thinks fit to the injured party and shall pay the balance, if any, to the party entitled thereto.5
8. From bare perusal of the record it is quite vivid that learned trial Court passed interim order on 01.10.2009 wherein the parties were directed to maintain staus-quo with regard to the structure of the suit property. The allegation of the violation of the interim order has been levelled against the petitioner on 16.10.2019 and the suit has been decided on 31.10.2019. As such, the proceedings for breach of injunction were already initiated during the pendency of the suit. Therefore, the stand taken by the petitioner that after dismisssal of the suit, the interim order has lost its significance as such inititiation of the proceedings under Order XXXIX Rule 2A is not maintainable and same deserves to be rejected. This issue of continuation of proceeding for breach of injunction has come up for consideration before the Hon'ble Supreme Court recently in case of Smt. Lavanya C and Another vs. Vittal Gurudas pai Since Deceased By Lrs and Others {Civil Appeal No. 13999 of 2024 decided on 05.03.2025} wherein Hon'ble Supreme Court has held as under :-
3. A question of maintainability of the application under Order XXXIX Rule 2A was raised. With reference to Samee Khan v.
Bindu Khan {1998 7 SCC 59}, it was held that even if the injunction order was subsequently set aside, the disobedience thereof is not erased. The subsequent dismissal of a suit does not absolve the party of liability of breach of injunction order. That apart, it was observed that an appeal against the Trial Court's dismissal of the Original Suit was also pending before the High Court bearing R.F.A.No.592/2017.
3.1 The substance of the dispute is that on 11 th July 2007, the counsel for the appellants herein filed memo as follows :
"The undersigned counsel undertake that the defendants have not alienate the suit schedule property to any third person"6
6. A few dates require immediate recall. The undertaking subject matter of controversy was given by the counsel on 11 th July 2007 and reiterated on 13th August 2007. The Trial Court made such an undertaking into an order of the Court on 17th November 2007. The same was extended at regular intervals. The application for violation of the undertaking/order of the Court under Order XXXIX Rule 2A was made in 2011. An order was made dismissing the application on 2nd August 2013. Immediately thereafter, an appeal was filed before the High Court. In the pendency of this appeal, the Original Suit came to be decided on 2nd January 2017. An appeal against such dismissal of the Original Suit was pending before the High Court on the date that the impugned judgment came to be passed. 7.4 In Samee Khan (Supra) it was observed that :
"12. But the position under Rule 2-A of 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 is the property to be attached in the case of disobedience of the order of injunction? Sub-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."
8. There is no question as to the maintainability of the application before this Court. It is also true that the order, in the challenge against which the impugned judgment was passed, was made in the pendency of the original suit and, therefore, it is saved from that bar as well. No error, therefore, can be found on the exercise of such jurisdiction.
9. The judgment cited by the learned counsel for the petitioner in case of Neelam (Supra) is distinguishable on the facts as before the Hon'ble Supreme Court while hearing the civil appeal, a contempt proceeding was also drawn against non-compliance of the interim order passed by the Hon'ble Supreme Court. The Hon'ble Supreme Court taking into consideration the fact that the civil suit has been decreed in 7 favour of the appellant by the Hon'ble Supreme Court, closed the contempt proceeding whereas in the present case, the civil suit was pending when the proceeding under Order XXXIX Rule 2-A of the CPC was initiated, as such it is not applicable to the facts of the case.
10. So far as the judgment cited by the learned counsel for the petitioner in Kanwar Singh Saini (Supra), he has relied upon paragraph Nos. 17 and 18 which reads as under :-
17. Application under Order XXXIX Rule 2A CPC lies only where disobedience/breach of an injunction granted or order complained of was one, that is granted by the court under Order XXXIX Rules 1 & 2 CPC, which is naturally to enure during the pendency of the suit. However, once a suit is decreed, the interim order, if any, merges into the final order. No litigant can derive any benefit from mere pendency of case in a Court of Law, as the interim order always merges in the final order to be passed in the case and if the case is ultimately dismissed, the interim order stands nullified automatically.
18. In case there is a grievance of non-compliance of the terms of the decree passed in the civil suit, the remedy available to the aggrieved person is to approach the execution court under Order XXI Rule 32 CPC which provides for elaborate proceedings in which the parties can adduce their evidence and can examine and cross-examine the witnesses as opposed to the proceedings in contempt which are summary in nature. Application under Order XXXIX Rule 2A CPC is not maintainable once the suit stood decreed. Law does not permit to skip the remedies available under Order XXI Rule 32 CPC and resort to the contempt proceedings for the reason that the court has to exercise its discretion under the Act 1971 when an effective and alternative remedy is not available to the person concerned. Thus, when the matter relates to the infringement of a decree or decretal order embodies rights, as between the parties, it is not expedient to invoke and exercise contempt jurisdiction, in essence, as a mode of executing the decree or merely because other remedies may take time or are more circumlocutory in character. Thus, the violation of permanent injunction can be set right in executing the proceedings and not the contempt proceedings. There is a complete fallacy in the argument that the provisions of Order XXXIX Rule 2A CPC would also include the case of violation or breach of permanent injunction granted at the time of passing of the decree.
8
11. This is not the situation in the case in hand as the Hon'ble Supreme Court has held that application under Order XXXIX Rule 2A CPC is not maintainable once the suit stood decreed as the decree holder has remedy available to him under Order 21 Rule 32 CPC which provides an opportunity of obeying the decree and has willfully failed to obey the decree and the decree may be enforced by way of attachment of the property or by detaining in the civil prison or by both. This provision further provides that in case of a decree for restoration of conjugal rights by the attachment of the property or in the case of a decree for specific performance of the contract. In the present case, since the breach of injunction has been alleged during the pendency of the suit, therefore, no assistance can be provided to the petitioner on the strength of this judgment.
12. So far as judgment cited by the learned counsel for the petitioner in Sukh Deo Prasad (Supra), he has relied upon paragraph 38 which read as under :-
38. The power exercised by a court under order XXXIX, Rule 2A of the Code is punitive in nature, akin to the power to punish for civil contempt under the Contempt of Courts Act, 1971. The person who complains of disobedience or breach has to clearly make out beyond any doubt that there was an injunction or order directing the person against whom the application is made, to do or desist from doing some specific thing or act and that there was disobedience or breach of such order. While considering an application under order XXXIX Rule 2A, the court cannot construe the order in regard to which disobedience/breach is alleged, as creating an obligation to do something which is not mentioned in the `order', on surmises suspicions and inferences. The power under Rule 2A should be exercised with great caution and responsibility.9
13. From the above stated judgments, it is quite vivid that none of the judgments dealt with the situation where proceedings have been initiated during the pendency of the suit and subsequently the suit has not been decreed in favour of the defendant, therefore, the judgments cited by the learned counsel for the petitioner are distinquishable on the facts of the present case.
14. In view of the aforesaid law laid down by the Hon'ble Supreme Court in Smt. Lavanya (supra) and considering the facts of the present case, initiation of action against the petitioner under Order XXXIX Rule 2A of the CPC during the pendency of the civil suit is still maintainable after dismissal of the civil suit, therefore, learned trial Court has not committed any illegality or pervisity in registering the MJC No. 150/2019 against the petitioner on the application under Order XXXIX Rule 2-A of the CPC which warrants interfrence by this Court.
15. So far as the stand of the learned counsel for the petitioner that the petitioner has not chagned the structure of the suit land, as such not violated the interim order dated 01.10.2009 is a matter of evidence which can only be ascertained by the learned trial Court. Therefore, I do not find any ground to entertain present Writ Petition. Accordingly, the writ petition deserves to be and is hereby dismissed.
16. It is made clear that this Court has not expressed anything on the merits of the case. It is for the trial Court to decide the case on its own merits, evidence, materials placed on record without being influenced 10 from the facts that the proceeding against registration of the case for alleged violation of injunction order has been dismissed by this Court.
17. No order as to costs.
Sd/-
(Narendra Kumar Vyas) JUDGE Deshmukh