Karnataka High Court
Fakru Sab vs Hussain Be on 23 August, 1988
Equivalent citations: ILR1989KAR681, 1988(2)KARLJ542
ORDER Shivashankar Bhat, J.
1. There was an order of temporary injunction against the defendants restraining them from interfering with the possession and enjoyment of the property in question by the plaintiff. The finding is that the 1st defendant has trespassed into the land and removed a tree. His explanation that such removal was a bona fide action, as per the direction issued by the Karnataka Electricity Board Authority has not been accepted by the Courts below. The learned Munsfff directed that the first defendant shall be detained in civil prison for a period of one month. That order was affirmed by the lower Appellate Court.
2. The learned Counsel for the petitioner, Sri Krishnappa, contends that the detention of a person under Rule 2A(1) of Order 39 of the Code of Civil Procedure is not a matter of course; there is a discretion vested in the Court either to attach the property of the person who has contravened the order of injunction or to detain him in civil prison. Primarily, the penalty for disobedience of an order of injunction will be, the attachment of the property of the person who has committed the disobedience. The learned Counsel relied upon Sub-rule (2) of Rule 2A of C.P.C. as aiding him in this interpretation of Rule 2A.
3. The defence of the petitioner that his conduct was bona fide in cutting the tree, has not been accepted by both the Courts below. This is a question of fact. On this finding, it was argued by the learned Counsel for the plaintiff, Sri Narasimhamurthy, that the discretion exercised by the trial Court, in directing the detention of the first defendant, should not be interfered with by this Court.
4. The main proposition advanced by Sri Krishnappa, learned Counsel for the petitioner, is that, detention in civil prison, as a punishment should be in exceptional cases and that punishment has to be preceded by an order of attachment of the property of the guilty person.
As a proposition of law, this contention cannot be accepted. Order 39 Rule 2A(1) reads:-
"Consequence of disobedience or breach of injunction, - (1) In case of disobedience to 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."
The present Rule 2A of Order 39 introduced in the year 1976 is the successor of the earlier Order 39 Rule 2(3). The present Rule empowers the transferee Court also in addition to the original Court which passed the order disobeyed, to punish the person guilty of the disobedience. The essence of the Rule, however, is the same as before.
5. Rule 2A(1), by the very language of it, confers two alternative powers on the Court to punish the person guilty of disobedience. The Court may order attachment of the property of the person. Court may also impose the punishment of imprisonment in the civil prison. One mode of punishment is not dependent upon the other mode also being invoked.
6. From the words "and may also order such person to be detained" it was contended that, attachment of property is the primary punishment to be imposed; further, since detention results in the deprivation of personal liberty, such a punishment should be imposed only under exceptional circumstances.
7. A person guilty of disobedience of an order of the Court cannot claim the protection of a right to his personal liberty. The power to make an order of temporary injunction cannot be effectively executed without an appropriate power to enforce it and to prevent its disobedience, by imposing punishment. Therefore, the plea based on personal liberty in the context of this Rule, cannot be countenanced.
8. When two alternative powers are available to the Court, the question of choosing one or the other power, will be a matter of judicial discretion. The exercise of this judicial discretion would depend upon, like so many other judicial discretions, circumstances of each case. Gravity of the disobedience is one such factor. Another factor will be, the suitability of the particular action to prevent the recurrence of the disobedience. In a given case, attachment of the property of the guilty person may be an appropriate action to prevent him from repeating the delinquency. In another case, a deterrent punishment of civil imprisonment may be necessary. As observed by the Allahabad High Court, in NIRANJAN SHUKLA AND ANR. v. SHANKER SHUKLA -
"The nature of punishment will depend on the nature of breach. The violation of an injunction is a civil wrong and it is discretionary with the Court not to award any punishment when the breach is a minor breach or where the breach has not been the result of deliberate action. In a case where the breach is a continuing one and further disobedience is sought to be stopped, attachment of the property may be an appropriate remedy. But where the breach is a single completed breach, punishment by detention in civil prison alone will not be an inappropriate order."
Lack of bona fide, i.e., a purposeful disobedience is necessary for imposing the punishment of any kind under this Rule. Therefore, the fact that, the person who committed the breach, deliberately committed it, by itself cannot be a reason to impose the punishment of imprisonment. Read with some other circumstance, imprisonment may be the appropriate punishment. As already observed, choosing of the punishment depends upon several factors which are relevant in the matter of exercising a judicial discretion.
9. In this case, the only reason given by the learned Munsiff, for imposing the punishment of imprisonment, was that, the petitioner, deliberately committed the breach of the injunction order. Lack of bona fides on the part of the petitioner gave the cause to invoke Rule 2A. But, the circumstance justifying the particular penalty has not been stated. Though an elaborate order is not expected by the Court, the order penalising a person, should indicate in clear terms the circumstance, justifying the selection of the particular penalty, having regard to the alternatives available to the Court under this Rule.
The lower Appellate Court has affirmed the order without referring to any one of the circumstances.
10. In the circumstances, I am constrained to interfere with the discretionary order of the Courts below.
11. In the result, for, the reasons stated above, this petition is allowed, the orders under revision are set aside and the matter is remitted to the trial Court with a direction to dispose of the matter afresh in accordance with law in the light of the observations made above. No costs.