Patna High Court
Arjun Suie vs Emperor on 17 July, 1917
Equivalent citations: 44IND. CAS.737, AIR 1918 PATNA 451
JUDGMENT Atkinson, J.
1. The petitioners before us were charged with offences under Sections 186 and 225B of the Indian Penal Code and they have each been convicted of offences under these sections and sentenced, petitioner No. 3 to two months' and petitioners Nos. 1 and 2 to one month's rigorous imprisonment each.
2. The facts of the case are very short and may be briefly stated as follows:
A Zamindar, by name Srimati Pramada Devi, was the plaintiff in a suit in which the petitioner No. 3 was the defendant. The petitioner No. 3 was the Tahsildar of numbered Suit No. 1 of 1916. The suit was for account as between a principal and an agent and a preliminary decree was granted in that suit on the 10th of June 1916, and by that preliminary decree petitioner No. 3, who was the defendant in the suit, was required within one month from the date of the preliminary decree to furnish and render accounts. The defendant failed within the time specified in the decree to furnish the accounts and consequently it is contended that he was guilty of disobeying the 'injunction" granted by the Court and that, therefore, the Court was entitled under Order XXI, Rule 32, to take proceedings against the defendant as if the defendant, petitioner No. 3, had been guilty of committing a breach of an ''injunction." Everything in the case touching the guilt of the accused depends upon the validity of the order directing the attachment of the petitioner No. 3. If the Court had no power to direct the attachment of the petitioner No. 3, then no offence would have been committed under Sections 186 and 225B.
3. Order XXI, Rule 32, re enacts in a revised form Section 260 of the old Code of Civil Procedure. The old Code provided that where a party to a decree for specific performance or restitution of conjugal rights or for an order requiring the performance of, or abstention from any other particular act disobeys or refuses to comply with the order, having had a reasonable opportunity of obeying the decree, then such person would be liable to detention of his person or attachment of his property. Under the old Code it has been held in two cases Degamber Mozumdar v. Kallynath Roy 7 C. 654 : 9 C.L.R. 265 : 3 Ind. Dec. (N.S.) 970 and Rajhunath v. Ganpati 27 A. 374 : A.W.N. (1905) 3. that under the words ''performance of, or abstention from, any other particular act," a party who has been ordered to file accounts and did not do so might be proceeded against under Section 260 of the old Civil Procedure Code. But the words "performance of, or abstention from, any other particular act" have been completely eliminated from Order XXI, Rule 32, and in lieu thereof the word is not to be used in the narrow sense defined in the Specific Relief Act, but that under the Order and rule cited it has a more extended meaning. The learned Vakil who appears on behalf of the prosecution contends that the word is to be used in its ordinary, general and popular sense as if meaning to ''order" or "enjoin." I do not think that the learned authors who revised the Code of 1908 used the word "injunction" without a very positive and express intention, or that they did not know that the word injunction had a specific legal meaning, and I think that they intentionally used the word in order to remove the ambiguity which existed by the use of the general term performance of, or abstention from, any other particular act." No doubt these words were held, in the decisions cited above, to have a very wide general meaning and if the words used in the old Section 260 of the Civil Procedure Code had been left unrepealed they might, having regard to the authorities cited, be considered to apply to this case; but I think that it was the intention of the authors of the Code of 1908 to restrict the meaning of the words as used in the old section to the legal term "injunction" as generally known and legally understood. In effect I think it was the intention of the framers of the Code of 1908 to amend the old Section 260 so as to overrule the effect of the decisions in Degambar Mozumdar v. Kallynath Roy 7 C. 654 : 9 C.L.R. 265 : 3 Ind. Dec. (N.S.) 970 and Rajhunath v. Ganpati 27 A. 374 : A.W.N. (1905) 3 which seemed out of harmony with the general scope and intendment of that section.
4. It has been contended on behalf of the prosecution before us that every order of a Court requiring a person to do a certain act is an injunction. I cannot for one moment yield to that argument. An injunction has been recognized throughout legal history to have a defined meaning. It is, in its essence, the grant of a mode of relief consequential upon an infringement of a legal right. Where a party has had a right invaded then the Court would interfere; and consequential to a declaration that the party injured has had his right infringed, the Court grants relief by way of injunction restraining the invader from causing further injury. No better definition of the word injunction could be found than that given in Wharton's Law Lexicon, where it is stated that an injunction forms part of a decree made at a hearing upon the merits, whereby the defendant is perpetually inhibited from the assertion of a right, or perpetually restrained from commission of an act contrary to equity and good conscience." Now we are unable to hold that the order embodied in the decree of the 10th of June 1916 was an order by way of consequential relief following from any declaration of a right that the plaintiff was entitled to in the suit. It was a mere order passed by the Court itself requiring the defendant to do an act to enable the Court to carry out its preliminary decree and do justice between the parties. In no sense was that an order consequential upon the right of the plaintiff to have an account rendered as ' between himself and the defendant, petitioner No. 3. We cannot give to the word "injunction" the very loose and general meaning which has been contended for by the learned Vakil for the prosecution and which has been sanctioned by the lower Courts. Consequently it appears to us that there was no refusal by the petitioner to obey an injunction issued by, the Court within the meaning of Order XXI, Rule 32, and no order could, therefore, legally have been passed by reason of the decree of the 10th of June to justify the arrest of the petitioner No. 3. Consequently his arrest was unlawful and illegal and he was not liable to be prosecuted jointly with the other accused, petitioners Nos. 1 and 2, for offences under Sections 186 and 225 B of the Indian Penal Code. I, therefore, consider we are bound to set aside the conviction and sentence passed upon the petitioners; and the petitioners, being on bail, are discharged from their bail.
Mullick, J.
5. I agree. In my opinion an injunction is a just and convenient remedy for the purpose of protecting or enforcing the legal rights of the parties either as enacted by law or allowed by equity. In the present case the preliminary decree for account was not an injunction in this view of the meaning of the word; and, therefore, the conviction and sentence in my opinion are unsustainable.