Dinesh, P.R. vs Pioneer Shopping Complex (P) Ltd.

P.K. Balasubramanyan, J.—This petition is filed by the Plaintiff in O.S. No. 513 of 1997 on the file of the II Additional Subordinate Judge''s Court, Ernakulam who was Respondent No. I in C.M.A No. 131 of 1998. C.M.A. No. 131 of 1998 was filed by the first Defendant in that suit challenging an interim Order of injunction passed by the trial court in exercise of its jurisdiction under Order XXXIX, Rule 1 of the CPC restraining the first Defendant from interfering with the Plaintiff''s peaceful possession and enjoyment of two flats in his possession with his rights to enjoy the common facilities and from making any construction in the common property and giving possession of the common area to strangers and from allowing the strangers to enjoy the common facilities. This Court by the Order dated 5th November 1999 confirmed the Order of injunction passed by the trial court and dismissed the appeal filed by the first Defendant in the suit. We may notice that though the first Defendant approached the Supreme Court with a petition for special leave to appeal to that court challenging the decision of this Court in C.M.A. No. 131 of 1998, that petition was dismissed by the Supreme Court.

The present petition C.M.P. No. 3322 of 2000 is filed by the Plaintiff, the first Respondent in C.M.A. No. 131 of 1998 invoking Order XXXIX Rule 2A of the Code of Civil Procedure. According to the Plaintiff, the Petitioner, the first Defendant has violated the Order of injunction passed by the trial court and confirmed by this Court in appeal and since the Order of the trial court in I.A. No. 5243 of 1997 had merged in the decision of this Court in C.M.A. No. 131 of 1998, the application under Order XXXIX, Rule 2A of the CPC was being filed before this court. Of course, the filing of the petition for special leave to appeal to the Supreme Court and the rejection of that application does not bring about a merger of the decision of this Court with that of the Supreme Court in the light of the recent decision of the Supreme Court in Kunhayammed v. State of Kerala 2000 (3) KLT 354 (S.C.). It is therefore submitted by the Plaintiff that the application lies to this Court and this Court may take action against first Respondent for violation of the interim injunction. The first Defendant has filed a counter affidavit denying the allegation of violation of the interim Order of injunction. The first Defendant has also raised a preliminary objection that the proceeding under Order XXXIX Rule 2A of the CPC is a proceeding of an original nature and the application would lie only before the trial court which was in seisin of the suit and in which the suit was pending. Since the preliminary objection was raised regarding the maintainability of the petition in this court; that objection was heard preliminary.

According to learned Counsel for the first Defendant, the proceeding under Order XXXIX, Rule 2A of the CPC is an original proceeding. It had therefore to be instituted in the lowest forum on the principle of Section 15 of the Code of Civil Procedure. Moreover, in this case, the suit itself was still pending and therefore the appropriate court to which that application could be mode, was the court of first instance. Counsel did not dispute that the Order of the trial court in I.A. No. 5243 of 1997 in which the Order of injunction was granted had merged in the Order of this Court in C.M.A. No. 131 of 1998. But according to counsel, the principle of merger cannot affect the question of the application under Order XXXIX, Rule 2A of the CPC being maintainable only in the trial court and not in the appellate court. Counsel submitted that the Order that may be made under Order XXXIX, Rule 2A of the CPC was an appealable Order in terns of Section 104 of the Cede of Civil Procedure read with Order XLIII Rule 1 of the CPC and if this Court were to entertain the application as a court of first instance, the first Defendant would lose the right of appeal and that is also a reason to hold that the application would lie only in the trial court and not in this court. The further argument was that an application under Order XXXIX Rule 2A of the CPC in a case where the alleged violation was denied, could not be decided merely based on affidavits, that evidence had to be taken and since u/s 3 of the Evidence Act, an affidavit itself was not evidence, the matter had to be tried only by the original court having original jurisdiction and since the High Court of Kerala does not have original jurisdiction, this Court cannot entertain or try the application. Learned Counsel for the Plaintiff, on the other hand, contended that once it is conceded that the Order of the trial court in I.A. No. 5243 of 1997 had merged in the Order of this Court in C.M.A. No. 131 of 1998, it had to be held that the application would lie only to this Court in the light of the principle recognized by the Full Bench decision of this Court in Kannan v. Narayani 1980 KLT 9 (F.B.). Counsel also referred to the relevant passages from the Full Bench decision of this Court in Thambi v. Mathew 1987 (3) KLT 848 (F.B.). Counsel submitted that the mere fact that evidence may become necessary in appropriate cases is no ground for holding that this Court cannot initiate or take action under Order XXXIX Rule 2A of the CPC in cases where this Court had exercised its appellate jurisdication u/s 104 of the CPC read with Order XLIII Rule 1 of the Code of Civil Procedure. Counsel pointed out that in terms of Section 107(2) of the Code of Civil Procedure, the Appellate Court had all the powers of the trial court and nothing stood in the way of the Appellate Court trying and disposing of an application under Order XXXIX Rule 2A of the CPC when it is made before this court. Counsel also submitted that Section 15 of the CPC cannot have any relevance in the circumstances.

There cannot be any doubt that the Order of injunction granted by the trial court when confirmed in C.M.A. No. 131 of 1998 by this court had merged in the Order of this court. Once there is a merger, obviously, the Operative Order of injunction is the Order of this Court and this Court can certainly entertain an application complaining of violation of the Order and seeking the taking of action for such violation. We cannot accept the proposition that, because the first Defendant would lose an opportunity of appeal if this Court were to entertain the application, this Court must decline jurisdiction and hold that this Court does not have jurisdiction. Similarly, the contention that evidence may be required and that is a reason for declining jurisdiction cannot also be accepted. For taking evidence in respect of an application for alleged violation of an Order of the injunction, it is not necessary that this Court should have ordinary original civil jurisdiction just like the chartered High Courts. Even in exercise of its appellate jurisdiction, this Court can conduct an enquiry into the question whether the Order of this Court has been violated or not. It is therefore not possible to accept the argument of learned Counsel for the first Defendant that this Court cannot exercise jurisdiction in an application under Order XXXIX Rule 2A of the Code in a situation like the present one. No authority was brought to our notice to the effect that merely because a right of appeal would be lost, it must be held that this Court did not have jurisdiction to entertain an application under Order XXXIX Rule 2A of the Code of Civil Procedure. Reliance was placed on the decision of this Court in Sanku v. Antony 1990 (2) KLT 578. That was a case where in addition to passing a decree, the court also passed an independent Order on an application under Order XXXIX Rule 2A of the Code of Civil Procedure, and an attempt was made to challenge the Order on the application under Order XXXIX Rule 2A of the CPC in the appeal against the decree by invoking Section 105 of the Code of Civil Procedure. In that context, the learned Single Judge held that the Order under Order XXXIX Rule 2A was an independent Order and could not be challenged in the appeal against the decree since it was not an Order that led to the Decree and even if there was an Order under Order XXXIX Rule 2A of the Code of Civil Procedure, the suit could still be dismissed. That principle has no relevance here. Here, the question for consideration is whether this Court having affirmed the Order of injunction passed by the trial court, has the jurisdiction to entertain an application filed alleging violation of that injunction.

We are therefore of the view that this Court has the necessary jurisdiction to entertain the application under Order XXXIX Rule 2A of the Code of Civil Procedure. We may also notice that in terms of Article 215 of the Constitution, this Court is a court of record and this Court has power to punish a person not only for violation of the Order of this Court but also of an Order of any court subordinate to it. That aspect has been dealt with by this Court in Joseph Kuzhijalil v. Joseph Pulikunnel 1999 (3) KLT 165.

Thus, in any view of the matter, we are of the view that this petition is maintainable in this court. The petition will therefore be posted for further consideration.