Himachal Pradesh High Court
Shri Nirmal Kumar And Others vs Kaushalya Devi And Others.Rt ... on 12 May, 2016
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMP (M) No. 1656 of 2015 in RSA NO. 110 of 2007 .
Order Reserved on 6.5.2016 Date of decision: 12.5.2016 Shri Nirmal Kumar and others ....Applicants In the matter of:
of Kaushalya Devi. ...Non-applicant/Appellant Versus Kaushalya Devi and others.rt ...Non-applicants/Respondents Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1 Yes.
For the Proposed Applicants: Mr.K.D. Sood, Senior Advocate with Ms.Ranjana Chauhan, Advocate.
For the Non-applicants: Mr.T.R. Jain, Advocate.
Tarlok Singh Chauhan J.
The legal representatives of the sole appellant have moved this application under Order 22 Rules 3 and 11 read with Section 151of the Code of Civil Procedure for substituting themselves in place of the appellant, who is stated to have died on 18.11.2015.
2. At this stage, it may be noted that in so far as Regular Second Appeal No. 110 of 2007 is concerned, the same already stands dismissed vide judgment and decree dated 5th June, 2014.
However, separate proceedings have been drawn up against the respondents under Order 39 Rule 2-A C.P.C. vide CMP No. 158 of 2012, in which the evidence of the parties is being recorded.
Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 15/04/2017 20:20:05 :::HCHP 2 CMP (M) No. 1656 of 2015 Therefore, this application is essentially for bringing on record the legal heirs of sole appellant in CMP No. 158 of 2012, which as observed earlier is pending adjudication before this Court.
.
2. The respondents have opposed the application by filing reply, wherein it is stated that the application is not maintainable, as the Regular Second Appeal already stands decided vide of judgment and decree dated 5th June, 2014 and therefore, no application after decision of the appeal even in the proceedings pending vide CMP No. 158 of 2012 would be maintainable.
rt I have heard the learned counsel for the parties.
3. The moot question that arises for consideration is as to whether the application under Order 39 Rule 2-A, wherein the impleadment of the legal heirs of the appellant is sought, can be permitted to continue in view of the dismissal of the main appeal vide judgment and decree dated 5th June, 2014.
4. Mr.K.D. Sood, Senior Advocate, assisted by Ms.Ranjana Chauhan, Advocate for the applicants would contend that it was during the pendency of the main appeal that the proceedings under Order 39 Rule 2-A vide CMP No. 158 of 2012 were initiated against the respondents. It is further contended that, no doubt, on 5.6.2014 the appeal filed by the appellant was ordered to be dismissed, however, vide separate order of the date, this Court framed the following issues in CMP No. 158 of 2012:-
"1. Whether the respondents have intentionally and willfully disobeyed the orders passed by this Court on 3.5.2007 in CMP No. 169 of 2007 in RSA No. 110 of 2007? ...OPA
2. Relief."::: Downloaded on - 15/04/2017 20:20:05 :::HCHP 3 CMP (M) No. 1656 of 2015
5. He would also contend that once the proceedings under Order 39 Rule 2-A had been initiated during the pendency of the appeal, the mere fact that the appeal itself has been .
dismissed, has no bearing on the proceedings initiated separately under Order 39 Rule 2-A as the same are distinct and separate and would continue irrespective of the dismissal of the appeal.
of He would further argue that no person can get away after disobeying the interim/interlocutory orders, while they are in force, more especially when the same have been passed prior to rt the decision of this Court on the main appeal itself.
6. The learned counsel for the applicants in support of his submission placed reliance on the following judgments:-
Tayabbhai M. Bagasarwalla and Another Vs. Hind Rubber Industries Pvt. Ltd. and others (1997) 3 SCC 443, Samee Khan Vs. Bindu Khan (1998) 7 SCC 59 and Prithawi Nath Ram Vs. State of Jharkhand and others (2004) 7 SCC
261.
7. In Tayabbhai M. Bagasarwalla and Another Vs. Hind Rubber Industries Pvt. Ltd. and others (1997) 3 SCC 443 the Hon'ble Supreme Court held as under:-
"16. According to this section if an objection is raised to the jurisdiction of the court at the hearing of an application for grant of, or for vacating, interim relief, the court should determine that issue in the first instance as a preliminary issue before granted or setting aside the relief already granted. An application raising objection to the jurisdiction to the court is directed to be heard with all expedition. Sub-rule (2), however, says that the command in sub-rule (1) does not preclude the court from granting such interim relief as it may consider necessary pending the decision on the question of jurisdiction. In our opinion, the ::: Downloaded on - 15/04/2017 20:20:05 :::HCHP 4 CMP (M) No. 1656 of 2015 provision merely states the obvious. It makes explicit what is implicit in law. Just because an objection to the jurisdiction is raised, the court does not become helpless forthwith - nor .
does it become incompetent to grant the interim relief. It can.
At the same time, it should also decide the objection to jurisdiction at the earlier possible moment. This is the general principle and this is what Section 9-A reiterates.
Take this very case. The plaintiff asked for temporary injunction. An ad-interim injunction was granted.
of Then the defendants came forward objecting to the grant of injunction and also raising an objection to the jurisdiction of the court. The court over-ruled the objection as to jurisdiction rt and made the interim injunction absolute. The defendants filed an appeal against the decision on the question of jurisdiction. While that appeal was pending, several other interim orders were passed both by the Civil Court as well as by the High Court. Ultimately, no doubt, High Court has found that the Civil Court had no jurisdiction of entertain the suit but all this took about six years. Can it be said that orders passed by the Civil Court and the High court during this period of six years were all non est and that it is open to the defendants to flout them merrily, without fear of any consequence. Admittedly, this could not be done until the High Court's decision on the question of jurisdiction. The question is whether the said decision of the High Court means that no person can be punished for flouting or disobeying the interim/interlocutory orders while they were in force, i.e., for violations and disobedience committed prior to the decision of the High Court on the question of jurisdiction. Holding that by virtue of the said decision of the High Court (on the question of jurisdiction), on one can be punished thereafter for disobedience or violation of the interim orders committed prior to the said decision of the High Court, would indeed be subversive of rule of law and would seriously erode the dignity and the authority of the courts. We must repeat that this is not even a case where a suit was filed in wrong court knowingly or only with a view to snatch an interim order. As pointed out hereinabove, the suit was filed in the Civil Court ::: Downloaded on - 15/04/2017 20:20:05 :::HCHP 5 CMP (M) No. 1656 of 2015 bonafide. We are of the opinion that in such a case the defendants cannot escape the consequences of their disobedience and violation of the interim injunction .
committed by them prior to the High Court's decision on the question of jurisdiction.
28. The correct principle, therefore, is the one recognised and reiterated in Section 9-A - to wit, where an objection to jurisdiction of a civil court is raised to entertain a suit and to pass any interim orders therein, the Court should decide the of question of jurisdiction in the first instance but that does not mean that pending the decision on the question of jurisdiction, the Court has no jurisdiction to pass interim rt orders as may be called for in the facts and circumstances of the case. A mere objection to jurisdiction does not instantly disable the court from passing any interim orders. It can yet pass appropriate orders. At the same time, it should also decide the question of jurisdiction at the earliest possible time. The interim orders so passed are orders within jurisdiction when passed and effective till the court decides that it has no jurisdiction to entertain the suit. These interim orders undoubtedly come to an end with the decision that this Court had no jurisdiction. It is open to the court to modify these orders while holding that it has no jurisdiction to try the suit. Indeed, in certain situation, it would be its duty to modify such orders or make appropriate directions. For example, take a case, where a party has been dispossessed from the suit property by appointing a receiver or otherwise; in such a case, the court should, while holding that it has no jurisdiction to entertain the suit, must put back the party in the position he was on the date of suit. But this power or obligation has nothing to do with the proposition that while in force, these orders have to be obeyed and their violation can be punished even after the question of jurisdiction is decided against the plaintiff provided the violation is committed before the decision of the court on the question of Jurisdiction."
8. He would further argue that the law on the subject is that even if the injunction order is subsequently set aside, the ::: Downloaded on - 15/04/2017 20:20:05 :::HCHP 6 CMP (M) No. 1656 of 2015 disobedience does not get erased, though it may be a different matter that the rigour of such disobedience may be toned down in the order, which has been subsequently decided. Reliance has .
been placed upon the following observations of the Hon'ble Supreme Court in Samee Khan Vs. Bindu Khan (1998) 7 SCC 59:-
of "12. But the position under rule 2A of Order 39 is different.
Even if the injunction order was subsequently set aside the disobedience does not get erased. It may be a different rt matter that the rigour of such disobedience may be toned down if he 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-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 39 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 disobedience."
9. On the same preposition, reliance has been placed upon the judgment of Hon'ble Supreme Court in Prithawi Nath Ram Vs. State of Jharkhand and others (2004) 7 SCC 261:-
"9. In a given case, even if ultimately the interim order is vacated or relief in the main proceeding is not granted to a party, the other side cannot take that as a ground for disobedience of any interim order passed by the Court."
10. On the other hand Mr.T.R. Jain, learned counsel for the respondents would argue that once the appeal itself has been ::: Downloaded on - 15/04/2017 20:20:05 :::HCHP 7 CMP (M) No. 1656 of 2015 dismissed, all interlocutory orders would automatically stand vacated, as it is more than settled that all interim orders merge with the final order. In support of his submission, he placed .
reliance upon the judgment of Hon'ble Supreme Court in Kalabharati Advertising Vs. Hemant Vimalnath Narichania and others (2010) 9 SCC 437:-
of "21. In Badrinath v. State of Tamil Nadu & Ors., (2000) 8 SCC 395, this Court observed that once the basis of a proceeding is gone, all consequential acts, action, orders rt would fall to the ground automatically and this principle of consequential order which is applicable to judicial and quasi-
judicial proceedings is equally applicable to administrative orders."
11. What would appear from the aforesaid exposition of law, as relied upon by the learned counsel for the appellants is that dismissal of the application for interim injunction, withdrawal or dismissal of suit/appeal or vacation of interim relief at a subsequent stage, does not render interim order passed earlier nonest or without jurisdiction. A party committing breach of such order or direction issued at the relevant time cannot escape consequences of such disobedience, breach or violation, though the rigour of such disobedience may be toned down.
12. In so far as the judgment relied upon by Mr.Jain, learned counsel for the respondents in Kalabharati Advertising case supra is concerned, there can be no quarrel with the preposition as laid down therein, but the question is as to whether the ratio laid down therein applies to the instant case.
13. It is more than settled that proceedings under Order 39 Rule 2 A are separate and distinct and in case the same have commenced during the pendency of the suit or appeal, then the ::: Downloaded on - 15/04/2017 20:20:05 :::HCHP 8 CMP (M) No. 1656 of 2015 subsequent dismissal of the suit/appeal does not render the interim orders passed earlier as nonest or without jurisdiction.
For that purpose, it has to be seen whether the order of injunction .
at the time when it was in force has been violated and disobeyed, because the person sought to be punished for disobedience or violation of interim orders is sought to be punished for such of disobedience or violation of the interim order committed during the time it was in operation or else in case such person goes unpunished only because either the order is subsequently vacated rt or main suit or appeal itself is dismissed, this would be subversive of rule of law and would seriously erode the dignity and the authority of the Courts.
14. Therefore, it can authoritatively be held that in a case where a party is accused of flouting or disobeying the interim/interlocutory orders and the proceedings have initiated during the pendency of the suit/appeal, as the case may be, the subsequent dismissal of the application, suit, appeal or even withdrawal of the same would have no consequence in so far as the disobedience is concerned and such proceedings would still continue. The interim orders so passed still have to be considered to be orders within jurisdiction when passed and effective.
Therefore, while in force, these orders have to be obeyed and their violation can be punished.
15. Having said so, the instant application cannot legally be opposed by the respondents on the ground of maintainability and since there is no contest on merits of the application, the ::: Downloaded on - 15/04/2017 20:20:05 :::HCHP 9 CMP (M) No. 1656 of 2015 same is allowed and the legal representatives of the sole appellant are ordered to be brought on record.
16. List before the Additional Registrar (Judicial) on .
18.5.2016 for fixing a date for recording evidence of the respondents.
(Tarlok Singh Chauhan), Judge.
of 12th May, 2016 (KRS) rt ::: Downloaded on - 15/04/2017 20:20:05 :::HCHP