Banamali Dey vs Satyendra Chandra and Others

B.P. Saraf, J.—This appeal under Order 43 Rule 1(r) of the CPC 1908 (hereinafter referred to as ''the Code of Civil Procedure,'') is directed against the order dated 16-12-1982 passed by the District Judge, Cachar at Silchar in Misc. Case No. 180 of 1982 refusing to proceed against the Respondents for disobedience of injunction order granted by the Court earlier on 7-9-1982. The facts of the case may be briefly stated as under.

The Respondent No. 1 Satyendra Chanda took settlement of a stone quarry from the Divisional Forest Officer, Karmganj Division, Karimganj for the year 1980-81 for collecting 4000 cm of stones. During the period of settlement he could collect only 2236 cm of stones He applied for extension of time for collection of the balance quantity of stones which was granted upto 28-2-1983. On the strength of the extension order the Respondent No. 1 sold to the Appellant 600 cm of stones at Rs. 13,000/- on 15-4-1982 and promised to supply the same as and when demanded within 28-2-1982.. Bat since then in spite of repeated demands the Respondent No. 1 did not supply any quantity of stones to the Appellant. On the other hand, he was trying to sell the stones to other persons. Under the circumstances the Appellant, as Plaintiff, brought a suit in the Court of the Assistant District Judge, Silchar against the Respondent No. 1 and two others, namely, the D.F.O., Karimganj and the Range Officer, Kalain Forest Range Office, Kalain. In the said suit, the Appellant also prayed for grant of temporary/permanent injunction restraining the Defendant-Respondent No. 1 from selling or removing the 600 cm of stones already sold to the Appellant. The learned Assistant District Judge passed an ex-parte order of temporary injunction. However, on hearing the parties the said order was vacated. On appeal, the learned District Judge, after hearing both the parties, passed the following order of injunction on 7-9-1982:

Upon hearing both sides, the operation of the impugned order so far as it relates to the vacation of the ad interim injunction is stayed with the direction that the Defendant-Respondent shall be entitled to operate the quarry without disposing of the stones which are the subject matter of the suit i.e. after collecting and keeping the contractual quantity of stones in reserve the Defendant will be able to sell the excess quantity....

The Plaintiff-Appellant, thereafter filed an application before the learned District Judge alleging disobedience of the aforesaid injunction order and praying for action under Order 39, Rule 2-A of the CPC against the Respondents. The allegation made in the said petition was that the Respondent No. 1 had started selling the entire quantity of stones without keeping the contractual quantity of stones in reserve, in violation of the injunction (sic) by the Court and that Respondents No. 2 and 3, who were officials of the Forest Department, had allowed the stones to be removed without keeping the contractual quantity in reserve.

On receipt of the petition alleging disobedience of the Court''s order the learned District Judge issued notice to the Respondent No. 1 to show cause as to why he should not be proceeded against for alleged violation of the Court''s injunction order dated 7-9-1982. A report was also called for from the other two official Respondents on the allegations made against them. Respondent No. 1 filed an objection in reply to the show cause notice wherein the allegations made by the Appellant were denied. The Divisional Forest Officer also filed objection. The learned District Judge after hearing all the parties fixed 15-12-1982 for local inspection. On local inspection, made in presence of the learned Advocates of both the parties, the learned District Judge found that the respective areas of the quarry were intact and no stones were collected and removed from those areas and as such, there was no violation of the Court''s order dated 7-9-1982, as alleged. The learned District Judge, therefore, did not find any force in the allegations of disobedience of the order of injunction and by his order dated 16-12-1988 dismissed the Misc. Case which was initiated on the basis of the information furnished by the Appellant. Against the aforesaid order dated 16-12-1982 holding that there was no disobedience or breach of injunction granted by the Court and refusing to pass any order against the Respondents under Order 39 Rule 2A of CPC the present appeal has been filed.

The sole contention of the Appellant is that after the local inspection, the learned District Judge ought to have prepared a Memorandum or the facts observed at the inspection and proceeded with the trial in the manner prescribed for trial of suits etc. In other words, the District Judge Could not have decide in a summary manner that there was no disobedience or breach of injunction.

Heard Mr. B.C. Das, learned Counsel for the Appellant as well as Mr. G.N. Sahewalla learned Counsel for the Respondents. Before considering the submissions of the learned Counsel of the Appellant on the merits of the case. I propose to examine the question regarding maintainability of the present appeal. The appeal has been filed under Order 43, Rule 1(r) of the Code of Civil Procedure. Rule 1 of Order 43 enumerates the orders against which appeal lies under the provisions of Section 104, Code of Civil Procedure. Clause (r) of Rule 1 thereof reads:

(r) an order under Rule 1, Rule 2, Rule 2A Rule 4 or Rule 10 of Order XXXIX.

Apparently an order passed under Rule 21A of Order 39 is appealable. Rule 2A deals with consequence of disobedience or breach of injunction. It reads:

2A. Consequence of disobedience or breach of injunction-(1) In the case of disobedience of 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 other 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.

(2) No attachment made under this rule shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues, the property attached may be sold and out of the proceeds, the Court may award such compensation as it thinks fit to the injured party and shall pay the balance, if any, to the party entitled thereto.

This rule empowers the Court to punish a person found guilty of disobedience or breach of any injunction order passed by it or by its predecessor Court. If an order is passed under this rule, an appeal lies. The question that falls for determination is whether an order refusing to take action under Rule 2A on the ground that there was no disobedience or breach of the injunction, can be said to be order under the said rule.

A careful reading of Rule 2A of Order 39 makes it clear that this rule deals with the nature of the order that may be passed by the Court in case of disobedience or breach of an injunction against a person found guilty of such disobedience or breach. In exercise of this power the Court may (1) order attachment of the property of the person guilty of such disobedience or breach and (2) may also order such person to be detained in civil prison for a term not exceeding three months. Sub-rule (2) of Rule 2A, however, puts a fatter on the power of the Court to keep the attachment in force for more than one year. If the disobedience or breach continues beyond that period, the Court may order the sale of the attached properties and out of the sale-proceeds award such compensation as it thinks fit to the injured party and pay the balance, if any, to the party entitled thereto.

From a plain reading of Rule 2A and the nature of the orders that a Court may pass thereunder, it is evident that an order passed by the Court holding that there was no disobedience or breach of injunction granted by it, is not an order within the meaning of Rule 2A. The question of passing an order under Rule 2A will arise only in a case where on consideration of the information received by it, the Court is satisfied that there was disobedience of the injunction granted by it. It may be noted herein that Rule 2A(1) deals with punishment that can be awarded by the Court to a person guilty of disobedience or breach of injunction. The initiation of a proceeding for such an action, however, depends on the satisfaction of the Court in regard to the factum of disobedience or breach. The alleged disobedience or breach pertains to an order of the Court and it is for the Court to determine or decide whether any such disobedience or breach did in fact take place. If it is not so satisfied, it may refuse to proceed further and in that event the question of passing an order under Rule 2A would not arise. If, on the other hand, the Court finds that there had been disobedience or breach of injunction, it may pass any of the orders of the nature specified in the said rule. Such order would be an order under Rule 2A and would be apealable order under Order 43, Rule 1(r). But no appeal has been provided against an order passed by the Court refusing to initiate a proceeding for action under Rule 2A on the ground that in its opinion there was no disobedience or breach of the injunction order passed by it. The learned Counsel for the Appellant referred to a decision of the Orissa High Court in Inda Bewa and Another Vs. Bharmananda Choudhury, , wherein it has been held that an order refusing to take action under Rule 2A of Order 39 is also appealable under Order 43 Rule 1(r). I have given careful consideration to the said judgment. With respect, I find difficult to agree with the same. In that view of the matter, I am of the opinion that the appeal in the instant case is not maintainable and is liable to be dismissed on that ground alone.

This appeal is accordingly dismissed. No order as to costs.