Jammu & Kashmir High Court
Jawahar Singh vs Des Raj And Ors. on 11 March, 2002
Equivalent citations: AIR2002J&K134, AIR 2002 JAMMU AND KASHMIR 134
ORDER B.L. Bhat, J.
1. This revision petition is directed against the order dated 7-2-2002, passed by the learned 2nd Addl. District Judge, Jammu whereby Civil First Miscellaneous Appeal has been dismissed and order of trial Court dated 16-1-2002 has been upheld.
2. The incontrovertible facts leading up to this revision are that Des Raj-plaintiff came to institute a suit for Permanent Prohibitory Injunction against the defendant-petitioner to the effect that he be permanently restrained to eject him from the suit shop without following due process of law. Alongside he came to file an application before the trial Court for the issuance of ad-interim injunction to the effect that petitioner-defendant be restrained to interfere with his possession with respect to suit shop till the final decision of the suit. This ad interim application came to be disposed of by the trial Court directing the petitioner-defendant to repair the roof top of the suit shop within a particular period. It appears that the petitioner failed to comply with the direction of the Court. On 16-1-2002 the respondent-plaintiff came to approach before the trial Court through the medium of an application for seeking attachment of the property of the defendant for the wilful disobedience of the Court order on his part. On 16-1-2002 the learned trial Court without issuing notice to the petitioner-defendant came to direct the SDPO, R.S. Pura, to look into the matter and arrest the petitioner and send him to the District Jail, Jammu (Civil Prison) for a period of one week, with a further direction to report compliance to the Court. This order came to be challenged before the learned 2nd Additional District Judge. Jammu in an appeal. The learned appellate Court by virtue of impugned order came to dismiss the appeal and confirmed the order passed by the learned trial Court.
3. The stand of Mr. Johal learned counsel appearing for the petitioner is that the trial Court committed an error of law by not issuing notice of the application to the petitioner-defendant, whereby the respondent-plaintiff sought attachment of the property of the petitioner/defendant because of the disobedience of the Court order on his part. Therefore, the order passed by the trial Court amounts to passing of the order on the asking of the respondents-plaintiff. He further submits that the petitioner-defendant has been condemned unheard in the matter. The order recorded by the trial Court and confirmed by the appellate Court are uncalled for, and there is apparent error in passing the said orders.
4. On the other hand stand of the learned counsel for the respondents is that the order of Injunction passed in the case stands upheld both by the appellate Court as well as by this Court and the petitioner-defendant has been disobeying the same. There is no error in recording the order passed by the trial Court as well as by the appellate Court.
5. Considered the rival contentions of the learned counsel for the parties and also perused the certified copy of the orders.
6. There is no quarrel on this point of law that before a party can be punished for disobedience or breach of order of an injunction recorded by the civil Court, it must be established that the order of injunction has been disobeyed and that such order is clear unambiguous and that the party was not under any bona fide misapprehension as to the scope of order alleged to have been disobeyed. A person alleged to have committed breach or disobedience of the Court order cannot be punished for such breach without giving him a clear cut idea of the alleged breach by issuance of notice and by stating the alleged prescribed act committed in breach by him. The alleged breach of the Court order is always factual in nature, in that case Court has no choice what to decide as to whether such breach/disobedience has been committed by the parties by giving an opportunity to the parties to prove their respective claims. The order of detention of the petitioner passed by the trial Court does no where demonstrate that any notice was ever given to him before proceeding against him in the matter. It is taken note of that proceeding under Order 39, Rule 2-A, CPC are quasi criminal in nature since the person committing the breach of the order deserves to be imprisoned as a consequence thereof. It is, therefore, all the more necessary that before proceeding against the person alleged to have committed breach of the Court order, notice is required to be given to him as to what is the case he has to meet so that he can file his explanation/objection to adduce the evidence accordingly. The learned appellate Court has not looked into this aspect of the case and has committed irregularity in dismissing the appeal against the said order of the trial Court.
7. Viewed thus, the order of trial Court dated 16-1-2002 directing SDPO to arrest the petitioner and send him to District Jail, Jammu for a period of one week and the order impugned recorded by the Appellate Court in dismissing the appeal, suffer from material irregularity which if allowed to stand shall cause injustice to the petitioner-defendant.
8. Therefore, this motion of revision succeeds. The orders recorded by the trial Court dated 16-1-2002 and impugned order recorded by the appellate Court are set aside with a direction to the trial Court to proceed a fresh with the proceedings in accordance with law after giving an opportunity to the petitioner to file objections and pass orders in the proceedings after recording evidence of both the parties in support of their claims. Copy of this order be sent to the trial Court for information and proceed with the matter in accordance with the observations recorded above.