Gujarat High Court
Riverfront Properties Private Limited vs Aastik S/O Girishchandra ... on 24 November, 2022
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
C/SCA/18449/2021 JUDGMENT DATED: 24/11/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18449 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL Sd/-
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? YES
2 To be referred to the Reporter or not ?
YES
3 Whether their Lordships wish to see the fair copy
of the judgment ? NO
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
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RIVERFRONT PROPERTIES PRIVATE LIMITED
Versus
AASTIK S/O GIRISHCHANDRA BHAGWATPRASAD
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Appearance:
MR AMAR N BHATT(160) for the Petitioner(s) No. 1
MR KUNAL P VAISHNAV(5111) for the Petitioner(s) No. 1
MRS SANGEETA PAHWA for THAKKAR AND PAHWA ADVOCATES(1357)
for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 24/11/2022
ORAL JUDGMENT
1.Heard learned Advocate Mr.Amar Bhatt appearing on behalf of the petitioner and learned Advocate Page 1 of 34 Downloaded on : Fri Dec 23 23:54:11 IST 2022 C/SCA/18449/2021 JUDGMENT DATED: 24/11/2022 Mrs.Sangeeta Pahwa appearing on behalf of the respondents.
2.Issue Rule returnable forthwith. Learned Advocate Mrs.Pahwa waives of notice of Rule for the respondents. With the consent of the learned Advocates for the parties, the present petition is taken for final hearing.
3.By way of this petition, the petitioner challenges an order passed by the learned Judge, Court No.25, City Civil and Sessions Court, Ahmedabad dated 30.10.2021 below Exh. 70 in Civil Suit No.1208 of 2013. Vide the said impugned order, the learned City Civil Court has directed that application preferred by the present petitioner herein under Order XXXIX Rule 2A of the Code of Civil Procedure (herein after referred to as "the Code") shall be heard later in point of time than an application under Order XXXIX Rule 1 and 2 of the Code preferred by the applicant - petitioner herein himself.
4.Facts, shorn off unnecessary details, are stated herein below:-
4.1. It appears that the petitioner herein is the original plaintiff, whereas the respondents herein Page 2 of 34 Downloaded on : Fri Dec 23 23:54:11 IST 2022 C/SCA/18449/2021 JUDGMENT DATED: 24/11/2022 are the original defendants. The plaintiff -
petitioner herein having filed a Summary Suit for recovery of certain amount and whereas vide an application Exh.6-7, notice of motion for interim injunction had also been preferred. It appears that vide an order dated 9.5.2013, the Chamber Judge, City Civil Court, Ahmedabad had granted ad-interim relief ex parte injunction in terms of paragraph 9(B) till the returnable date. Paragraph 9(B) reads as thus:-
"9(B) The defendants and their agents be restrained by way of a temporary injunction of this Hon'ble Court during the pendency of this Suit from selling, alienating, transferring, mortgaging or in any manner encumbering the suit property described in the Schedule hereto."
It would also be pertinent to mention that a Schedule referred to at prayer 9(b) was also attached with the application for interim injunction.
4.2. It appears that the respondents had appeared on the next date i.e. on 27.5.2013 and whereas the respondents had applied for adjournments. It also appears that the respondents had filed their Page 3 of 34 Downloaded on : Fri Dec 23 23:54:11 IST 2022 C/SCA/18449/2021 JUDGMENT DATED: 24/11/2022 reply on 10.7.2013 i.e. much after the period of 30 days under Order XXXIX Rule 3 of the Code for deciding an application for interim injunction. It appears that from the year 2013 till the year 2019, while certain events had taken place, in the nature of the civil suit being transferred to the Commercial Court and later on being re- transferred back and whereas in the considered opinion of this Court, such aspects are not relevant for the present purpose and, therefore, this Court deems it appropriate not to delve into the same.
4.3. It appears that vide sale deed dated 28.2.2019, a property in the Schedule of Properties mentioned in the Suit had been sold and whereas according to the respondents, the said property had been sold by the HUF of which the respondents were Kartas. Be that as it may, the plaintiff, upon coming to know about the fact of the respondents having sold the property, had preferred an application Exh. 59 under Order XXXIX Rule 2A of the Code inter alia claiming breach of the order of the learned City Civil Court and for appropriate action with regard to the same. It also appears that the learned City Civil Court had issued a show-cause notice to the Page 4 of 34 Downloaded on : Fri Dec 23 23:54:11 IST 2022 C/SCA/18449/2021 JUDGMENT DATED: 24/11/2022 respondents and whereas the respondents had filed a reply to Exh. 59 and a rejoinder was also filed by the petitioner. Later on, it appears that the respondents filed an application Exh.70 praying that the application Exh.6 and 7 i.e. notice of motion under Order XXXIX Rule 1 and 2 of the Code be heard first or rather be heard prior to the application under Order XXXIX Rule 2A of the Code. Learned City Civil Court vide impugned order dated 30.10.2021 had accepted the application below Exh.70 and had directed that application under Order XXXIX Rule 1 and 2 of the Code should be heard prior to the application under Order XXXIX Rule 2A of the Code for breach of injunction. The petitioner, being aggrieved by the said order, has approached this Court by way of the present petition.
5.Learned Advocate Mr.Bhatt for the petitioner would take this Court through the prayers made in the application under Exh.6 and 7 as well as the Schedule, which is part of the prayers and whereas the learned Advocate would also draw the attention of this Court to the order granting ex parte injunction dated 9.5.2013. Learned Advocate Mr.Bhatt relying upon the said documents, would submit that the fact of the property in question, Page 5 of 34 Downloaded on : Fri Dec 23 23:54:11 IST 2022 C/SCA/18449/2021 JUDGMENT DATED: 24/11/2022 being covered under the ex parte injunction is undeniable. It is submitted that the respondents, being well aware about the fact of the ex parte interim injunction having been granted on 9.5.2013, have not taken any steps whatsoever for vacating or challenging the ex parte ad-interim injunction and whereas, in spite of the very clear knowledge about the said order, the respondents having sold the property in question, they have clearly committed a breach of the interim injunction.
5.1. Learned Advocate Mr.Bhatt would thereafter submit that once an application for breach of injunction has been preferred, the same would be akin to an application preferred under Contempt of Courts and whereas general principle would be that the contemnor would not be heard on the merits of the issue, unless he purges himself of the contempt. Learned Advocate would submit that the respondents, after not having taken any appropriate steps from 9.5.2013 till 9.9.2021 when they had filed application Exh.70 after they had committed a clear breach of the ex parte ad- interim injunction, ought not to have been granted the liberty of having application Exh.59 under Order XXXIX Rule 1 and 2 of the Code for interim injunction heard prior to purging themselves of Page 6 of 34 Downloaded on : Fri Dec 23 23:54:11 IST 2022 C/SCA/18449/2021 JUDGMENT DATED: 24/11/2022 clear breach which they had committed. Learned Advocate Mr.Bhatt in support of his submission would be relying upon the decision of the Probate Division in case of Hadkinson Vs. Hadkinson reported in 1952 (P) 285 (CA). Learned Advocate would rely upon the observations of the Probate Division Court inasmuch as any person, who has committed a disobedience of an order of a Court has to be punished and whereas only after such person purges himself of such contempt, should he be heard on merits. Learned Advocate would also rely upon the decision of the Hon'ble Apex Court in case of Prestige Light Limited Vs. State Bank of India, reported in (2007) 8 SCC 449. Learned Advocate would also refer to the decision of the Hon'ble Apex Court in case of Prithawi Nath Ram Vs. State of Jharkhand, reported in (2004) 7 SCC 261 and also in case of Tayabbhai Bagasarva Vs. Hind Rubber Industries, reported in AIR 1997 SC 1240.
5.2. Learned Advocate Mr.Bhatt would further submit that while the law laid down in the judgements referred to is very clear that unless a party, who has committed disobedience/breach of an order of the Court, purges himself of the breach, only thereafter such party be required to Page 7 of 34 Downloaded on : Fri Dec 23 23:54:11 IST 2022 C/SCA/18449/2021 JUDGMENT DATED: 24/11/2022 be heard on merits, yet the learned City Civil Court, relying upon judgements, which may not have any applicability on the facts, had passed the impugned order, which may be interfered by this Court.
5.3. Learned Advocate would draw the attention of this Court to the findings of the learned City Civil Court, more particularly the findings starting from paragraph 7 of the impugned decision and would submit that the decision of the Apex Court in case of Quantum Securities Private Limited and Ors. Vs. NDTV Limited, reported in (2015) 10 SCC 602, would not have any applicability as regards the facts of the case. Learned Advocate would further submit that as such, a plain reading of the judgement would make it clear that the Hon'ble Apex Court had not laid down any proposition of law as sought to be relied upon by the learned City Civil Court that an application for taking action for breach of interim injunction under Order XXXIX Rule 2A ought to be and should be decided after an application for interim injunction under Order XXXIX Rule 1 and 2 is heard. Learned Advocate would further submit that while the learned City Civil Court has relied upon the observation of the Hon'ble Apex Court in Page 8 of 34 Downloaded on : Fri Dec 23 23:54:11 IST 2022 C/SCA/18449/2021 JUDGMENT DATED: 24/11/2022 case of Padma Sundara Rao (dead) and Ors. Vs. State of Tamil Nadu and Ors., reported in (2002) 3 SCC 533 and whereas it is submitted that the observations of the Hon'ble Apex Court relied upon by the learned Civil Civil Court, is relied upon in its breach. It is submitted that while the learned City Civil Court inter alia relies upon the observations of the Hon'ble Apex Court that the peculiar facts of each case have to be examined and whereas difference of one additional fact or circumstance can make a world of difference, yet the observations of the Hon'ble Apex Court in Quantum Securities Private Limited and Ors. Vs. NDTV Limited (supra), which may not have any applicability on the facts of the present case, has been relied upon by the learned City Civil Court to pass the impugned order. Having regard to such submissions, learned Advocate Mr.Bhatt on behalf of the petitioner would request this Court to quash and set aside the impugned decision and whereas it is also prayed that the learned City Civil Court may be directed to hear and decide the application under Order XXXIX Rule 2A prior in point of time than application under Order XXXIX Rule 1 and 2.
6.This petition is vehemently objected to by learned Page 9 of 34 Downloaded on : Fri Dec 23 23:54:11 IST 2022 C/SCA/18449/2021 JUDGMENT DATED: 24/11/2022 Advocate Mrs.Sangeeta Pahwa on behalf of the respondents. Learned Advocate Mrs.Pahwa would submit that the learned City Civil Court has not committed any error, which requires interference by this Court, exercising supervisory jurisdiction under Article 227 of the Constitution of India. Learned Advocate Mrs.Pawha would submit that as such, the learned City Civil Court has relied upon a decision of the Hon'ble Apex Court in case of Quantum Securities Private Limited and Ors. Vs. NDTV Limited (supra) and whereas, according to the learned Advocate, the facts before the Hon'ble Apex Court and the facts before the learned City Civil Court were co-relatable and hence, no error whatsoever has been committed by the learned City Civil Court in passing the impugned order. Learned Advocate would also submit that as such, the suit preferred by the present applicant was itself not maintainable and whereas even the ad-interim order had been obtained after misrepresentation of facts and whereas under such circumstances, the learned City Civil Court has not committed any error in deciding the application under Order XXXIX Rule 1 and 2 of the Code prior to hearing application under Order XXXIX Rule 2A of the Code.
6.1. Learned Advocate would further submit that as Page 10 of 34 Downloaded on : Fri Dec 23 23:54:11 IST 2022 C/SCA/18449/2021 JUDGMENT DATED: 24/11/2022 such the property in question was an HUF property and whereas the property had been sold by the respondents as Kartas of the HUF.
6.2. Learned Advocate would thereafter refer to and rely upon the decisions of the Hon'ble Apex Court as well as this Court. Learned Advocate, at the outset, would rely upon the decision of the Hon'ble Apex Court in case of Quantum Securities Private Limited and Ors. Vs. NDTV Limited (supra).
6.3. Learned Advocate Mrs.Pahwa would submit that in the said case, in a similar situation, the Hon'ble Apex Court has inter alia held that it is always in larger interest of the parties to the lis to get the main case (lis) decided first on its merits as far as possible, rather than pursue off shoots proceedings on merits. According to the learned Advocate Mrs.Pahwa, in a similar situation, the Hon'ble Apex Court had inter alia directed the learned Single Judge of the High Court to decide the notice of motion in accordance with law and whereas till such time is decided, the contempt proceedings were stayed. It is further directed by the Hon'ble Apex Court that after disposal of the notice of motion, contempt proceedings may be Page 11 of 34 Downloaded on : Fri Dec 23 23:54:11 IST 2022 C/SCA/18449/2021 JUDGMENT DATED: 24/11/2022 decided in accordance with law. Learned Advocate would submit that in the instant case, since there is a close similarity of the fact situation and whereas in view thereof, the learned City Civil Court having relied upon the said decision of the Hon'ble Apex Court and passed the impugned order, under such circumstances, no interference is warranted as regards the impugned order. Learned Advocate Mrs.Pahwa would also rely upon the decision of the Hon'ble Apex Court in case of State of Jammu & Kashmir Vs. Mohd. Yaqoob Khan and Ors., reported in (1992) 4 SCC 167 and decision of the learned Coordinate Bench of this Court in case of Puniben Bhojabhai Vs. Legal Heirs of Datiyabhai Bava & Ors., reported in (1999) SCC Online Guj 312.
6.4. Learned Advocate Mrs.Pahwa would also rely upon the decision of the Hon'ble Apex Court in case of Mohd. Inam Vs. Sanjay Kumar Singhal & Ors., reported in (2020) 7 SCC 327, more particularly contending that under supervisory jurisdiction of this Court, exercising jurisdiction under Article 227 of the Constitution of India, the High Court should not take up cases as a Court of Appeal. Learned Advocate would rely upon the Page 12 of 34 Downloaded on : Fri Dec 23 23:54:11 IST 2022 C/SCA/18449/2021 JUDGMENT DATED: 24/11/2022 observations of the Hon'ble Apex Court to submit that powers under Article 227 of the Constitution, though are wide, must be exercised sparingly and to only to keep subordinate Courts and Tribunals within their bounds of their authority and not to correct mere errors. Relying upon the said observations, learned Advocate would submit that since the view taken by the learned learned City Civil Court is a possible view in the facts of the case and whereas since this Court is not to sit in appeal over the decision and since the power available to this Court under Article 227 are to be exercised sparingly, therefore, this Court may not interfere with the impugned order.
6.5. Learned Advocate Mrs.Pahwa would also try and distinguish the decisions relied upon by the learned Advocate for the petitioner by submitting that the decisions relied upon, were more or less with regard to interim orders, whereas the case on hand is with regard to an ex parte interim order. Learned Advocate would submit that such being the difference in facts of the case, therefore, the decisions relied upon may not have any applicability insofar as the facts of the present case are concerned. Learned Advocate Mrs.Pahwa has also relied upon the decision of Page 13 of 34 Downloaded on : Fri Dec 23 23:54:11 IST 2022 C/SCA/18449/2021 JUDGMENT DATED: 24/11/2022 the Hon'ble Apex Court in case of Food Corporation of India Vs. Sukh Deo Prasad, reported in (2009) 5 SCC 665, more particularly paragraph 38 thereof, whereby the Hon'ble Apex Court has inter alia observed that 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 and whereas it is submitted that since the decisions relied upon, more particularly insofar as the decision of Hon'ble Apex Court in case of State of Jammu & Kashmir Vs. Mohd. Yaqoob Khan and Ors. (supra) is with regard to powers under the Contempt of Courts Act and whereas since it has been held that the power under Order XXXIX Rule 2A is akin to the power under the Contempt of Courts Act, therefore, according to the learned Advocate Mrs.Pahwa, the observations of the Hon'ble Apex Court even insofar as cases relating to or under the Contempt Courts Act would be applicable in the instant case. Having regard to such submissions, learned Advocate Mrs. Pahwa would request this Court not to entertain the present petition and not to interfere with the order passed by the learned City Civil Court.
7.Heard the learned Advocates for the respective Page 14 of 34 Downloaded on : Fri Dec 23 23:54:11 IST 2022 C/SCA/18449/2021 JUDGMENT DATED: 24/11/2022 parties, who have not submitted anything further.
8.In the considered opinion of this Court, the question which falls for consideration of this Court is whether in the facts of the case, the learned City Civil Court was justified in passing the impugned order, whereby the learned City Civil Court has inter alia directed that the application for interim injunction would be heard first in point of time, than an application preferred claiming breach of ex parte interim injunction under Order XXXIX Rule 2A of the Code.
9.At the outset, while the fact of the order in question, of which breach is claimed by the present petitioner is an ex parte interim order, is not in dispute, but at the same time, the question arises as to whether a party, who has not taken any steps to either challenge the ex parte injunction or request for modification or vacation of the said ex parte interim injunction, is entitled to question the said order, almost after a period of eight years of the said order remaining unchallenged, on the ground that the said order is an ex parte order without giving an opportunity of hearing to the respondents. The facts as it stands and most of the same being undisputed, would reveal that for a pretty long time i.e. from 2013 till the year 2021, the respondents had not Page 15 of 34 Downloaded on : Fri Dec 23 23:54:11 IST 2022 C/SCA/18449/2021 JUDGMENT DATED: 24/11/2022 taken any steps whatsoever to either have the ex parte interim injunction modified or the ex parte interim injunction set aside by preferring an appeal. As a matter of fact, while it appears that the learned City Civil Court had granted ex parte interim injunction on 9.5.2013, and whereas within less than a month i.e. on 27.5.2013, the respondent No.1 had appeared before the Court and applied for adjournment and the ad-interim relief had been extended with the consent of the parties. It appears that the said ex parte interim relief had continued to be extended from time to time, and whereas for the first time on 9.9.2021 i.e. approximately two years after the present petitioner preferred an application under Order XXXIX Rule 2A of the Code claiming breach of interim injunction did the respondents herein file an application Exh.70 praying for hearing of the application Exh.6 and 7 under Order XXXIX Rule 1 and 2 before hearing of the application claiming breach of interim injunction. In the considered opinion of this Court, while the fact of the order in question being an ex parte order is unquestionable, by virtue of the fact that the same has continued for 8 years after the defendants had filed their appearance, would preclude the defendants - respondents from trying to distinguish the judgements relied upon by the petitioner on the Page 16 of 34 Downloaded on : Fri Dec 23 23:54:11 IST 2022 C/SCA/18449/2021 JUDGMENT DATED: 24/11/2022 ground that the orders in relation to which toe Hon'ble Apex Court had passed the judgements were interim orders. While the defendants may have been permitted to rely upon the ex parte nature of the order, if the breach alleged had happened near about the same time when the order had been passed, whereas in the instant case, the breach alleged is after 6 years of the order being passed and the respondents entering their appearance.
10. It is also required to be noted here that as regards the breach, prima facie certain aspects clearly appear to be undisputable. It appears that the property in question was mentioned in the schedule of properties, with regard to which the learned City Civil Court had granted ex parte interim injunction on 9.5.2013. It also appears that the present respondents had appeared before the Court and had filed the reply almost after two months of the ex parte interim order being passed. It is also not attempted to be disputed by the respondents that the property in question is a different property or that the sale of the property was but a mistake. As it appears to this Court, the respondents are attempting to justify their act of having allegedly breached the ex parte interim injunction by questioning the maintainability of the suit and/or Page 17 of 34 Downloaded on : Fri Dec 23 23:54:11 IST 2022 C/SCA/18449/2021 JUDGMENT DATED: 24/11/2022 questioning the grant of ex parte interim injunction and whereas as noted herein above, it clearly appears that from the date of the ex parte interim relief till the date when they sold the property i.e. for 6 years and even approximately till 2½ years thereafter, the respondents did not take out any steps whatsoever to either have the ex parte interim relief either modified or clarified or set aside. Thus, in the considered opinion of this Court, the question in addition to what has been noted herein above, as to whether the application for interim injunction under Order XXXIX Rule 1 and 2 ought to be heard before the respondents purge themselves of the breach of interim injunction or not, is also to be viewed from the stand point of the fact that whether the respondents who have prima facie disobeyed the ex parte interim injunction, should be or ought to be granted any benefit whatsoever, including a benefit of deciding which application is to be heard first in point of time. In the considered opinion of this Court, the issue also is as to whether an order of a Court, even if it is ex parte could be permitted to be breached by a party at its sweet will.
11. As it is, in the considered opinion of this Court, the law as it stands today, insofar as contempt or breach of injunction is concerned, is no more res Page 18 of 34 Downloaded on : Fri Dec 23 23:54:11 IST 2022 C/SCA/18449/2021 JUDGMENT DATED: 24/11/2022 integra. That by now it is a well settled position, even as reiterated by the Hon'ble Court in case of Prestige Light Limited Vs. State Bank of India (supra) that for a person, who is alleged to have committed a contempt or who is alleged to have breached any interim direction of a Court, then the first aspect which is expected of such a person is to purge the contempt or violation, as the case may be. If the party does not do the same and either tries to justify his action or tries to wriggle out of the situation by giving excuses, then the consequence of such contemptuous action or breach of injunction should be imposed upon such a party. Only after a party purges itself of the contemptuous action or breach of injunction order, would the party be permitted to be heard on merits. In the considered opinion of this Court, the same being the law of the land, the present respondents, could not be permitted to take shelter under the fact that either the order in question was an ex parte order or shelter under the fact that the application for interim injunction under Order XXXIX Rule 1 and 2 was pending consideration of the learned City Civil Court.
12. At this stage this Court seeks to refer to and rely upon the observations of the Hon'ble Apex Page 19 of 34 Downloaded on : Fri Dec 23 23:54:11 IST 2022 C/SCA/18449/2021 JUDGMENT DATED: 24/11/2022 Court in case of Prestige Lights (supra). Paragraphs 24 to 26 of the said judgement being relevant for the present purpose are being reproduced herein below for benefit:
"24. An order passed by a competent court interim or final- has to be obeyed without any reservation. If such order is disobeyed or not complied with, the Court may refuse the party violating such order to hear him on merits. We are not unmindful of the situation that refusal to hear a party to the proceeding on merits is a 'drastic step' and such a serious penalty should not be imposed on him except in grave and extraordinary situations, but some time such an action is needed in the larger interest of justice when a party obtaining interim relief intentionally and deliberately flouts such order by not abiding the terms and conditions on which a relief is granted by the Court in his favour.
25. In the leading case of Hadkinson v. Hadkinson, (1952) 2 All ER 567, the custody of a child was given to the mother by an interim order of the court, but she was directed not to remove the child out of jurisdiction of the Court without the prior permission of the Court. In spite of the order, the mother removed the child to Australia without prior permission of the Court. On a summons by father, the Court directed the mother to return the child within the jurisdiction of the Court. Meanwhile, an appeal was filed by the mother against that order. A preliminary objection was raised by the father that as the appellant was in contempt, she was not entitled to be heard on merits. Upholding the contention and speaking for the majority, Romer, L.J. observed;Page 20 of 34 Downloaded on : Fri Dec 23 23:54:11 IST 2022
C/SCA/18449/2021 JUDGMENT DATED: 24/11/2022 "I am clearly of the opinion that the mother was not entitled, in view of her continuing contempt of court, to prosecute the present appeal and that she will not be entitled to be heard in support of it until she had taken the first and essential step towards purging her contempt of returning the child within the jurisdiction. In a concurring judgment, Denning, L.J. also stated;
"The present case is a good example of a case where the disobedience of the party impedes the course of justice. So long as this boy remains in Australia, it is impossible for this court to enforce its orders in respect of him. No good reason is shown why he should not be returned to this country so as to be within the jurisdiction of this Court. He should be returned before counsel is heard on the merits of this case, so that, whatever order is made, this court will be able to enforce it. I am prepared to accept the view that in the first instance the mother acted in ignorance of the order, but nevertheless, once she came to know of it, she ought to have put the matter right by bringing the boy back. Until the boy is returned, we must decline to hear her appeal."
(emphasis supplied)
26. That, however, does not mean that in each and every case in which a party has violated an interim order has no right to be heard at all. Nor the court will refuse to hear him in all circumstances. The normal rule is that an application by a party will not be entertained until he has purged himself of the contempt. There are, however, certain exceptions to this rule. One of such exceptions is that the party may appeal with a view to setting aside the order on which his Page 21 of 34 Downloaded on : Fri Dec 23 23:54:11 IST 2022 C/SCA/18449/2021 JUDGMENT DATED: 24/11/2022 alleged contempt is founded. A person against whom contempt is alleged must be heard in support of the submission that having regard to the meaning and intendment of the order which he is said to have disobeyed, his actions did not constitute a breach of it."
The Hon'ble Apex Court has in the above decision has laid down the law that if any decision of a competent Court is not obeyed or complied with, then such party committing the breach or disobedience shall not be heard on merits. While the Hon'ble Apex Court has carved out certain exceptions to the rule, including being filing of an appeal against the very order or that his actions do not constitute a contempt having regard to the scope, ambit and meaning of the order. At the same time the Hon'ble Apex Court has laid down the dictum - "the normal rule is an application by a party will not be entertained until he has purged himself of the contempt".
12.1. In the considered opinion of this Court, this being the law laid down by the Hon'ble Apex Court, the learned City Civil Court, while passing the impugned order was in clear error. Considering the fact situation from the standpoint of the law laid down by the Hon'ble Apex Court as above the respondent herein ought to make good case, in the application under Order XXXIX Rule Page 22 of 34 Downloaded on : Fri Dec 23 23:54:11 IST 2022 C/SCA/18449/2021 JUDGMENT DATED: 24/11/2022 2A of the Code preferred by the present petitioner, that the respondent did not commit any breach of the ex parte interim injunction, that would warrant action under Order XXXIX Rule 2A of the Code against him or in the alternative purges himself of the contempt, i.e. take corrective steps to ensure that the breach or disobedience cannot remain, the respondent could not have been heard even as regards his application Exh. 70 whereby they had requested the learned City Civil Court to hear application under Order XXXIX Rule 2 before the application under Order XXXIX Rule 2A.
13. Insofar as the decisions relied upon by the learned Advocate Mrs.Pahwa, more particularly insofar as the decision of the Hon'ble Apex Court in case of Quantum Securities Private Limited and Ors. Vs. NDTV Limited (supra), which is relied upon heavily by the learned Advocate for the respondents and which is also relied upon by the learned City Civil Court, in the considered opinion of this Court, the facts of the case before the Hon'ble Apex Court and the facts of the present case are completely different. As could be noted from paragraphs 4, 5, and 6 of the said decision, it appears that the learned Single Judge had granted Page 23 of 34 Downloaded on : Fri Dec 23 23:54:11 IST 2022 C/SCA/18449/2021 JUDGMENT DATED: 24/11/2022 an ex parte injunction to the applicant in terms of Prayer A and whereas Prayer A as has been reproduced by the Hon'ble Apex Court inter alia seeks for a direction against the defendants and their associates to be injuncted from, in any manner, writing to third parties letters that are defamatory in nature against the plaintiff or its management or its promoters. It appears that the respondent before the Hon'ble Apex Court had moved an application praying for appropriate direction on account of alleging breach of interim order and whereas subsequently, in such context of facts that the Hon'ble Apex Court had passed the said decision. In the considered opinion of this Court, while the aspect of there being a possibility or there being a requirement of the Court concerned, requiring to first decide whether the material/letter which was stated to be contemptuous, was in fact, defamatory or not was required to be decided and whereas in the instant case, from the facts as elaborately reproduced herein above, there is no dispute with regard to the property being one upon which the ex parte interim injunction was applicable and there is also no dispute that its is the very selfsame property that has been sold by the respondents, though claiming to be Kartas of an HUF. Under such circumstances, more particularly since the fact of Page 24 of 34 Downloaded on : Fri Dec 23 23:54:11 IST 2022 C/SCA/18449/2021 JUDGMENT DATED: 24/11/2022 the interim injunction being breached is apparent from the face of it, which does not appear to be the case in the facts before the Hon'ble Apex Court in case of Quantum Securities Private Limited and Ors. Vs. NDTV Limited (supra), in the humble opinion of this Court, the observations of the Hon'ble Apex Court may not be of any avail to the respondents. Further more, while the observations of the Hon'ble Apex Court at paragraph 17 are relied upon to argue that while the order in question was an ex parte order, the onus was on the Court concerned to dispose of the application within 30 days as per Order XXXIX Rule 3-A. In the considered opinion of this Court, while the dictum as set out by the Hon'ble Apex Court is binding on all Courts throughout the country, but at the same time it requires to be noted that the defendant had also not taken any reasonable steps for eight long years to have either the interim relief modified or vacated, as the case may be. Furthermore, paragraph 19 and 20 have been relied upon by the learned Advocate for the respondent to contend that the Hon'ble Apex Court had, in the case of Qantum Securities (supra) inter alia come to a conclusion that the applicant in notice of motion ought to be decided first before the off-shoot proceedings are decided and whereas it is contended that following the same Page 25 of 34 Downloaded on : Fri Dec 23 23:54:11 IST 2022 C/SCA/18449/2021 JUDGMENT DATED: 24/11/2022 ratio, learned City Civil Court had directed the application below Exh.5 to be heard before the application for breach of injunction preferred by the present respondent. In the considered opinion of this Court, it was on the facts of the said case that the Hon'ble Apex Court had made the observations and whereas it would be required to be mentioned here that while the ex parte interim injunction had been granted on 6.8.2013, an application for contempt had been filed in the very year before the High Court. It also appears that the High Court issued notice to the appellants before the Hon'ble Apex Court to show cause as to why action under provisions of the Contempt of Courts Act should not be taken against the appellants. In the considered opinion of this Court, the ex parte interim injunction and the alleged violation thereof appear to be in close proximity and whereas the contempt application also is filed immediately in close proximity to the ex parte interim injunction. It also appears that in the present case, while the ex parte interim injunction had been granted in the year 2013, the same had continued till the alleged breach, which had taken place in the year 2019 and complained of by filing an application below Exh.59 in the month of October 2019. It appears that again the respondent - defendant had moved an Page 26 of 34 Downloaded on : Fri Dec 23 23:54:11 IST 2022 C/SCA/18449/2021 JUDGMENT DATED: 24/11/2022 application Exh.70 for directions to hear application under Order XXXIX Rule 1 and 2 for interim injunction prior to hearing the application below Order XXXIX Rule 2-A for breach in the year 2021. Thus, it is clear that while ex parte interim injunction had continued for a substantially long period of time i.e. for six years, and whereas after its breach upon coming to know thereof the applicant had preferred an application for taking action against the defendants for such breach and whereas for approximately for two years the respondents did not do anything and thereafter the respondents had filed an application Exh.70 as noted herein above. Thus, it appears that the respondent - defendant having accepted the ex parte interim injunction had allegedly committed breach thereof and whereas thereafter he had waited for two years for filing the application below Exh.70. Thus, it appears that at every stage, the respondent in spite of having knowledge about the ex parte interim injunction had probably committed a breach thereof and then wanted an application under Exh.5 to be heard first in point of time and whereas the law laid down by the Hon'ble Apex Court in Prestige Light (supra) as discussed herein above, expressly prohibiting a party who has committed contempt to be heard before purging himself of the contempt, in the Page 27 of 34 Downloaded on : Fri Dec 23 23:54:11 IST 2022 C/SCA/18449/2021 JUDGMENT DATED: 24/11/2022 considered opinion of this Court, the law laid down by the Hon'ble Apex Court in Quantum Securities (supra) may not advance the cause of the respondents and more particularly in view of the decision of Prestige Light (supra), which has discussed and laid down the law on the issue, which has arisen in the present petition.
14. At this stage, this Court also seeks to rely upon the decision of the Hon'ble Apex Court in case of Padma Sundara Rao (dead) and Ors. Vs. State of Tamil Nadu and Ors., (supra) where the Constitution Bench of Hon'ble Apex Court has inter alia observed that Court should not place reliance on decision without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Paragraph 9 of the said decision, which though relied upon by the respondent, is relied upon by this Court for benefit:-
"9. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case, said Lord Morris in Herrington Vs. British Railways Board (1972) 2 WLR 537.Circumstantial flexibility, one additional Page 28 of 34 Downloaded on : Fri Dec 23 23:54:11 IST 2022 C/SCA/18449/2021 JUDGMENT DATED: 24/11/2022 or different fact may make a world of difference between conclusions in two cases."
15. Having regard to the aforesaid law laid down by the Hon'ble Apex Court, it would clearly appear that unless the factual situation fits in, judicial utterance may not be relied upon and whereas one additional or different fact may make a world of difference in conclusion. Thus, as noted herein above, the facts of the case before the Hon'ble Apex Court in case of Quantum Securities (supra) may not advance the cause of the respondents. On the other hand, as elaborately noted herein above, since the decision in case of Prestige Light, where a question of law has been answered by the Hon'ble Apex Court and whereas since the same question of law arises in the present litigation, the observations of the Hon'ble Apex Court in the said decision would be applicable to the present case scenario. Furthermore, insofar as decision of the Hon'ble Apex Court in case of State of J & K (supra), it clearly appears that the Hon'ble Apex Court was concerned with an interim order which according to the Hon'ble Apex Court was "in substance, a final order allowing the writ petition in part, without hearing the other side", such not being the nature of order in the instant case, the ratio of the said decision would not advance the cause of the respondents.
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16. Insofar as the decision of Puniben Bhojabhai Vs. Legal Heirs of Datiyabhai Bava & Ors. (supra) of this Court upon which heavy reliance was also placed by the learned Advocate and whereas the said decision also being relied upon by the learned City Civil Court it also appears that the gross facts as have been elaborately mentioned herein above are missing in the case before the learned Coordinate Bench. While it appears that the learned Coordinate Bench was concerned with a possibility of ex parte injunction being abused by unscrupulous litigant, in the instant case, it clearly appears that there is no angle of exploitation of the said order, more particularly since the ex parte interim injunction, as noted herein above, had continued without any demurrer from the the year 2013 till 2021. It is only after eight long years that for the first time the respondents had moved an application, that too, such application was neither for vacating ex parte interim injunction nor for modification of such injunction, rather the first application Exb. 70 moved by the respondents herein was for requesting the Court to hear the application for interim injunction prior in point of time than the application for breach of interim injunction.
17. Insofar as the decision of the Hon'ble Apex Page 30 of 34 Downloaded on : Fri Dec 23 23:54:11 IST 2022 C/SCA/18449/2021 JUDGMENT DATED: 24/11/2022 Court in case of Mohd. Inam Vs. Sanjay Kumar Singhal (supra), relied upon by the learned Advocate for the respondents, more particularly to canvass the submission that this Court exercising jurisdiction under Article 227 of the Constitution of India is not to sit as an Appellate Court and whereas the power should be exercised sparingly, while the Hon'ble Apex Court, has relied upon various decisions, it also appears that the decision of a later date of the Hon'ble Apex Court in Garment Craft Vs. Prakash Chand Goel, reported in (2022) 4 SCC 181, where the Hon'ble Apex Court has, while reiterating the proposition, has explained the said proposition which in the considered opinion of this Court, would also be relevant. It appears that while the proposition as laid down in Mohd. Inam Vs. Sanjay Kumar Singhal (supra) has been reiterated and whereas the Hon'ble Apex Court has gone on further to hold "it is axiomatic that such discretionary relief must be exercised to ensure that there is no miscarriage of justice". In the considered opinion of this Court, the said proposition would be squarely applicable to the facts of the present case. In the considered opinion of this Court, permitting a person, who has committed a clear and palpable breach of injunction, to make submissions with regard to hearing an application for grant of interim Page 31 of 34 Downloaded on : Fri Dec 23 23:54:11 IST 2022 C/SCA/18449/2021 JUDGMENT DATED: 24/11/2022 injunction before the application for claiming breach of interim injunction is decided, in the considered opinion of this Court, would be nothing less than a miscarriage of justice. As observed herein above, in the considered opinion of this Court, every order of every Court should have and be treated with deserving respect and sanctity. No party can be heard to say that he or she would not comply or obey the order in question since either the proceedings were not maintainable or interim order was obtained by making wrong submissions. As noted herein above, in the instant case, all through out while the respondents were present before the Court from 2013 till 2019 when they had decided to sell off the property, there had never been any application for either modification, clarification or vacating of the said ex parte interim relief, the respondent did not challenge the ex parte interim order. Having not taken out any steps as against the ex parte order for almost six years and thereafter committing a breach of the said order, the party cannot be, in any manner, permitted to justify their breach. As noted by the Hon'ble Apex Court in case of Prestige Light Limited Vs. State Bank of India (supra), relying upon the English decision of Hadkinson Vs. Hadkinson (supra), the party concerned is and would be required to first purge themselves of the Page 32 of 34 Downloaded on : Fri Dec 23 23:54:11 IST 2022 C/SCA/18449/2021 JUDGMENT DATED: 24/11/2022 breach or contempt and thereafter the party can be permitted to be heard for everything else.
18. Having regard to the observations, discussions and conclusions arrived at herein above, in the considered opinion of this Court, the impugned order dated 30.10.2021 passed by the learned Judge, Court No.25, City Civil and Sessions Court, Ahmedabad dated 30.10.2021 below Exh. 70 in Civil Suit No.1208 of 2013 cannot be sustained and, therefore, the same is quashed and set aside. The learned City Civil Court is directed to first decide the application preferred by the present petitioner under Order XXXIX Rule 2A for breach of interim injunction and whereas after such application is decided, the learned City Civil Court, Ahmedabad could take up the hearing of application under Order XXXIX Rule 1 and 2 for interim injunction.
19. Needless to clarify that all the observations made herein above, more particularly with regard to breach of interim injunction/alleged breach of injunction etc., are only for the purpose of deciding the present application and whereas the learned City Civil Court would hear and decide application under Order XXXIX Rule 2A objectively on its own merits, without in any manner being influenced by any of the observations made herein above. It is further Page 33 of 34 Downloaded on : Fri Dec 23 23:54:11 IST 2022 C/SCA/18449/2021 JUDGMENT DATED: 24/11/2022 clarified that none of the observations herein above may be treated by the learned City Civil Court as being a conclusive finding either way as regards the allegation of breach of injunction by the respondents.
20. With the above observations and directions, the present petition is disposed of as allowed. Rule is made absolute to the aforesaid extent.
Sd/-
(NIKHIL S. KARIEL,J) V.V.P. PODUVAL Page 34 of 34 Downloaded on : Fri Dec 23 23:54:11 IST 2022