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Judgment
Bakshi, J.—This Letters Patent Appeal arises out of proceedings for contempt taken out against the appellant for breach of an ad interim
injunction granted in Insolvency Petition No. 24 of 1961, In these proceedings, there were two chamber summons one in respect of the transfer of
rickshaw bearing No. BYD. 9602 (New No. GJD 1890) and the other in respect of transfer of rickshaw bearing No. BYD 9410 by the appellant
in contravention of the order of injunction passed by the Court on 21st March 1960 restraining the appellant and respondent No. 2 from disposing
of their property. The injunction was served on the appellant on 22nd March 1960 when an inventory of the property was taken. These two
rickshaws were shown as properties belonging to the appellant in Schedule ''A'' which was annexed to the main petition and the inventory that was
taken in the presence of the first opponent referred to a permit in the name of one Haji Nurmahmad in respect of rickshaw No. 9410 and the name
of Jairam Dunger in respect of rickshaw No. 9602. It was the case of the petitioning creditor that rickshaw No. 9602 was transferred on 29th
April 1960 and rickshaw No. 9410 was transferred at a date subsequent to the order of in junction and that the appellant had parted with
possession of the two rickshaws. The defence of the appellant was that the rickshaws did not belong to him and that he had not committed any
breach of the order of injunction. These two applications in respect of the two rickshaws were heard together and the learned Judge of the City
Civil Court held that it was established that the two rickshaws belonged to the appellant and the appellant had disobeyed the injunction order
issued on 21st March 1960 and ordered the appellant to be committed to civil prison for one day in respect of each of the breach of injunction and
further ordered both the punishments to run concurrently. Against this order, the appellant preferred Appeal No. 100 of 1964 in the High Court
which was dismissed summarily by Divan J. on 8th October 1964. It is against that order of dismissal that the present Letters Patent Appeal has
been preferred by the appellant.
As regards the question of ownership of the two rickshaws, the finding of the learned Judge of the City Civil Court that the two rickshaws
belonged to the appellant has not been seriously challenged by Mr. S. N. Shelat appearing on behalf of the appellant. There is sufficient material on
the record to support this finding of the learned Judge. In the first place, the two rickshaws were shown in the list of properties annexed to the
petition as belonging to the appellant. When an inventory was taken on 22nd March 1960 in the presence of the appellant, two permits in the
names of Haji Nurmahmad and Jairam Dunger in respect of the two rickshaws were found. The appellant filed his reply to the main petition as also
to the application for injunction and nowhere in that reply has he denied that the two rickshaws mentioned in the schedule were not of his
ownership. Besides this, there are sufficient facts and circumstances which establish beyond doubt the fact that the two rickshaws were of the
ownership of the appellant. The evidence discloses that the appellant was in possession of the two rickshaws that the appellant got the two
rickshaws plied on hire and collected the income out of such hire; that the appellant maintained day to day accounts of the earnings of these two
rickshaws by crediting the earnings and treating them as his own and utilized the same for expenses incurred in connection with the said rickshaws
as also for his household and personal expenses. The appellant did not examine the permit holders or the drivers plying the rickshaws to prove his
version that the accounts in respect of the two rickshaws were merely maintained, on behalf of the drivers and that he had nothing to do with the
same.
The appellant stated in his evidence that he had maintained accounts in respect of the rickshaws; that he had given bonus to the rickshaw
drivers; that he had given moneys by way of permit charges to the persons in whose names the permits of the two rickshaws stood and that he had
treated the earnings as his own by crediting them on the credit side and then appropriating them towards not only the expenses incurred in respect
of the rickshaws but also towards his household expenses. There is no note that has been maintained by the appellant which would show that he
was getting a remuneration of Rs. 15 per month in respect of each of the rickshaws. The earnings of these two rickshaws appear to have been
credited from day to day and a diary has been maintained in the form of a cash-book where there are corresponding debit entries showing as to
how these earnings were appropriated. The learned trial Judge has referred to the accounts and the entries in detail and the learned advocate for
the appellant has not advanced any argument to show that the several entries and the documents referred to by the learned trial Judge were false or
that the learned trial Judge had in any manner, erred in the appreciation of evidence on the basis of which he had come to the conclusion as regards
the ownership of the two rickshaws. It must therefore, be held that the two rickshaws were of the ownership of the appellant.
It has not been disputed before us that the two rickshaws were transferred subsequent to the order of injunction. The main question that has
been canvassed by ,Mr. Shelat was as regards the legality of the punishment passed by the learned trial Judge against the appellant. Mr. Shelat
contended that the order of injunction was passed by the learned trial Judge Under Clause (b) of Rule 1 of Order XXXIX of the CPC and that
there was no provision in Rule 1 of Order XXXIX or in any other rule of that order empowering the Court to impose any penalty for breach of an
injunction granted under Order XXXIX, Rule 1(b). In Sub-clause (3) of Rule 2 of Order XXXIX, there is a provision for the imposition of penalty
in case of disobedience of the terms of an injunction, but Mr. Shelat contended that Sub-clause (3) of R. 2 provided for the breach of the terms of
an injunction granted under Rule 2 and not Rule 1 of Order XXXIX. It was contended by Mr. Shelat that a provision for imposing penalty for
disobedience of an injunction similar to Clause (3) of Rule 2 does not appear below Rule 1 of Order XXXIX and that therefore, the Legislature
never intended that a breach of an order for injunction issued under Rule 1 should be punished. On the basis of this argument, Mr. Shelat
contended that the learned trial Judge had no power to punish the appellant for breach of the order of injunction passed against him.
The exercise of the power to punish for breach of an injunction has been justified by courts in India on two grounds, firstly on the basis of
Section 36 read with Order 21, rule 32 of the CPC and secondly on the basis of section 94 read with Clause (3) of Rule 2 of Order XXXIX. The
Nagpur High Court in the case of Pannalal Bose v. Shreeram Daluram AIR 1945 Nag 134, has taken the view that disobedience of an injunction
issued under Order 39, Rule 1 is not punishable under Order 39, Rule 2(3) but can be dealt with under Order 21, Rule 32 read with Sections 36
and 58, Civil Procedure Code. In that case at page 136 of the report. It has been observed that -
The further argument on behalf of the appellant was that the Court below was wrong in its decision that dis-obedience of an order passed under
Order 39, Rule 1 Civil P. C. was punishable under Order 39, R. 2(3). It was contended that no penalty is attached for disobedience of an order
passed under Order 39, Rule 1, Civil P.C., and that therefore the lower Court''s order was one without jurisdiction and was illegal. The lower
Court relied on Jang Bahadur Singh Vs. Chhabila Koiri, wherein the Patna High Court, after reviewing several authorities on the question, came to
the conclusion that the penalty provided for by Sub-rule (3) of Rule 2 of Order 39. Civil P.C., applied also to disobedience of orders passed
under R. 1 of the same Order. The appellant''s counsel argued that the decision in Jang Bahadur Singh Vs. Chhabila Koiri, was wrong and should
not be followed. A later decision reported in Dulhin Janak Nandini Kunwari Vs. Kedar Narain Singh, was brought to , our notice and it was
argued that it should be held that Order 39, Rule 2(3), Civil P.C., was applicable, not to injunctions issued under Rule 1, but only to those issued
under Rule 2 of the Order. The entire case law has been re viewed in Dulhin Janak Nandini Kunwari Vs. Kedar Narain Singh, . The Patna
decision Jang Bahadur Singh Vs. Chhabila Koiri, is based on a comparison of Rules 1 and 2 of Order 39, Civil P.C., with Sections 491 and 493,
Civil P.C., 1882. It is, however, admitted by the Judges who decided that case that the construction they were placing on the rules as they stood
was by declaring that the drafting was not lucid and that it was desirable for the Legislature to re-draft Rule 2, perhaps by replacing Rule 2(3), with
such modifications as may be required, by a new Rule 2A. The very decision therefore, indicates that the construction that the Judges wanted to
put on the two rules of Order 39. Civil P.C., ,viz. Rules 1 and 2, and in particular Rule 2(3), was not logical one but a strained one. They had to
state that the drafting was defective, but they thought that the intention was to punish disobedience of injunctions where the injunction was issued
under Rule 1 or Rule 2 of Order 39. This again was based on the fact that the Legislature was not likely to omit the provision of a penalty for
breach of an injunction under Order 39, Rule 1, Civil P.C. As the rules stand, no penalty has been prescribed for breach of a temporary injunction
granted under Order 39, Rule 1. ** ** **
Inasmuch as Rule 2 refers to a temporary injunction granted in a suit for restraining the defendant from committing a breach of contract or other
injury of any kind, Sub-rule (3) provides that the Court may attach his property or put him in the civil prison in case of disobedience.
Inasmuch as Sub-rule (3) is a part of main Rule 2 the necessary inference is that it provides a penalty only for the disobedience of an injunction
issued in the special circumstances mentioned in Rule 2. This appears to be the reasonable construction that can be placed on Rules 1 and 2 of
Order 39. The Allahabad High Court in Dulhin Janak Nandini Kunwari Vs. Kedar Narain Singh, has pointed out that the interpretation put by the
Patna High Court was not a natural one, and that it was not necessary to strain the meaning of Order 39, Rule 2(3), as it was possible to enforce
the injunction issued under R. 1 under the provisions of Section 36 and Order 21, Rule 32 Civil P. C. The Allahabad High Court has thus pointed
out that the Legislature has not omitted to provide a penalty for disobedience of an injunction issued under Order 39, Rule 1. The difficulty
therefore expressed by the Patna High Court vanishes if the argument of the Allahabad High Court be correct. Section 36, Civil P.C. lays down
that -
the provisions of this Code relating to the execution of decrees shall, so far as they are applicable, be deemed to apply to the execution of orders.
Under Order 21, Rule 32 injunctions contained in decrees can be enforced in certain ways, and by the application of Section 36 an order under
Order 39, Rule 1, Civil P. C. can be enforced by imposing a penalty such as is provided for in Order 21, Rule 32. Order 21, Rule 32 lays down:
(1) Where the party against whom a decree ....for an injunction has been passed, has had an opportunity of obeying the decree and has wilfully
failed to obey it, the decree may be enforced in the case of a decree ... for an injunction by his detention in the civil prison, or by the attachment of
his property or by both.
This is a penalty that is almost the same as the one contained in Order 39, Rule 2 (3). The period of detention in the civil prison will, however, be
regulated by the provisions of Section 58, Civil P.C. Agreeing with the Allahabad High Court we respectfully dissent from the view taken in Jang
Bahadur Singh Vs. Chhabila Koiri, and hold that disobedience of an injunction issued under Order 39, Rule 1, Civil P.C., is not punishable under
Order 39, Rule 2(3), but can be dealt with under Order 21, Rule 32, read with Sections 36 and 58, Civil P.C.
In this case, the Nagpur High Court followed a similar view that was taken by the Allahabad High Court in the case of Dulhin Janak Nandini
Kunwari Vs. Kedar Narain Singh, .
The other view that Sub-clause (3) of Rule 2 of Order XXXIX applies to cases of disobedience of all injunctions issued u/s 94 of the CPC was
taken by the Madras High Court in Adaikkala Thevan v. Imperial Bank, Madura Branch AIR 1926 Mad 574. the relevant observations are as
follows:--
Under Section 94, Civil Procedure Code, the Court is empowered to commit a person guilty of disobedience of an injunction to the civil prison
and to direct that his property shall be attached and sold. Order 39, Rule 2(3) prescribes the punishment and under it, the person in default may be
detained in the civil prison for a term not exceeding six months, and his property may be attached. The drafting of this rule, as has been pointed out
in Ram Prasad Singh Vs. The Benares Bank Limited, is somewhat inartistic, but there is no doubt that it applies to disobedience generally of an
injunction granted by the Court Order 39, Rule 2(3) applies not only to disobedience of an order issued under Clauses (1) and (2) of that rule but
has a more general application, it applies alike to disobedience of all injunctions issued u/s 94. See also Krishnapur Mutt by Vidyapurna
Thirthaswami v. Vicar of Suritkal Church AIR 1918 Mad 340.
In Thummu Koti Nagaiah Vs. D. Sambaiah and Others, , it was held that a combined reading of Section 94 and Order 39, Rules 1 and 2 would
lead to the conclusion that the punishment prescribed by Sub-rule (3) of Rule 2 applies to an injunction issued under Order 39 and Section 94. In
that decision, the decisions of the Madras High Court in S. Adaikkala Thevan and Another Vs. The Imperial Bank, Madura Branch and Others,
referred to above and Jang Bahadur Singh Vs. Chhabila Koiri, were relied upon. It was observed at page 137 that -
A perusal of Section 94 C.P.C. clearly Indicates that it is intended to take in breaches of all injunctions, that section being couched in general
terms. We are not persuaded that the generality and scope of relevant statutory provisions should be confined to breach of injunctions issued under
Rule 2 of Order 39. C.P.C. It is true that the provision containing the punishment for disobedience of injunctions is included as part of rule 2 but
that is not decisive of the matter. Order 39 C.P.C. has to be read in the light of Section 94 C.P.C. In our considered judgment, this was intended
by the legislature to be applied to all breaches of injunctions issued under Order 39 and Section 94 C.P.C. It cannot be postulated that the
legislature did not provide for penalty through some inadvertence in Order 39, Rule 1 C.P.C. for punishing persons guilty of disobedience of
orders of Courts.
It is argued for the appellant on the basis of Dulhin Janak Nandini Kunwari Vs. Kedar Narain Singh, that the legislature had not omitted to
provide a penalty for breach of injunction issued under Order 39, Rule 1, C.P.C. in that the injunctions contained in Orders could be enforced
under Order 21, Rule 32 read with Section 36 C.P.C. and that it would not be natural to interpret Order 39, Rule 2, Sub-rule (3) as covering
orders under Order 39, Rule 1. We are unable to assent to the principles enunciated in the two cases cited above.
We are not satisfied that Order 21, Rule 32 read with Section 36 C.P.C. is in tended to apply to temporary injunctions issued under Order 39.
Order 21, Rule 32 read with Section 36 C.P.C. deals with execution of orders. The remedy provided under Order 21, Rule 32 and Section 36
could be availed of only by parties to a proceeding and it does not empower a Court suo motu to punish a person for breach of an injunction.
These provisions are meant to enable a party to enforce the injunctions contained in the decrees or orders but not for the purpose of empowering a
Court to punish a party guilty of disobedience. That being the object of Order 21, Rule 32 read with Section 36 C.P.C. resort cannot be had to
those provisions for the purpose of punishing a person for breach of an injunction.
In our opinion, a combined reading of Section 94 and Order 39, Rules 1 and 2, C.P.C. leads to the conclusion that the punishment prescribed
by Sub-rule (3) applies to an injunction issued under Order 39 and Section 94 C.P.C. It may be that Sub-rule (3) was drafted somewhat
inartistically but the intendment of the legislature appears to be clear, namely to punish persons guilty of violation of injunctions issued under either
of the two rules.
We are fortified in this opinion of ours by the judgment of a Division Bench of the Madras High Court in S. Adaikkala Thevan and Another
Vs. The Imperial Bank, Madura Branch and Others, . Venkata Subba Rao and Madhavan Nair JJ., laid down in that case that Sub-rule (3) of
Rule 2 applies not only to disobedience of orders issued under Clauses 1 and 2 of that rule, but it applies equally to disobedience of an injunction
issued u/s 94 of the Code. The learned Judges referred with approval to the judgment of Kumaraswamy Sastri J.; in Krishnapur Mutt by
Vidyapurna Thirthaswami Vs. The Vicar of Suratkal Church, . The view taken by the Patna High Court in Jang Bahadur Singh Vs. Chhabila Koiri,
and Sita Ram Sahu Vs. Lachmi Narain Sah and Others, is in accord with this doctrine. We are not satisfied that the law stated in 50 MLJ 401 =
AIR 1926 Mad 574 is wrong and that it requires reconsideration, as suggested by the learned counsel for the appellant. We feel that it brings out
clearly the spirit of Section 94 and Order 39 C.P.C.
It would be convenient here to quote the provisions of Order XXXIX, Rules 1 and 2;
Where in any suit it is proved by affidavit or otherwise -
(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution
of a decree,
(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to defraud his creditors,
the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the
wasting, damaging, alienation, sale, removal or disposition of the property as the Court thinks fit, until the disposal of the suit or until further orders.
2(1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in
the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a
temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any breach of contract or injury
of a like kind arising out of the same contract or relating to the same property or right.
(2) The Court may by order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or
otherwise, as the Court thinks fit.
(3) In case of disobedience, or of breach of any such terms, the Court granting an injunction 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 six months,
unless in the meantime the Court directs his release.
(4) No attachment 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, and shall pay the balance, if
any, to the party entitled thereto.
It is, no doubt, true that the provision for penalty for breach of an injunction is not contained as a separate clause in Rule 1 and it is equally true that
it is Sub-rule (3) of Rule 2 which provides for the disobedience or breach of the terms of an injunction. But that could not be considered to be
conclusive of the matter. It appears that by some deficient or inartistic drafting, the provision for imposing the penalty for disobedience of an
injunction has been included in Sub-rule (2), but the intendment of the Legislature appears to be clear, viz. to punish a person guilty of violation of
an injunction. It is true that the Court cannot fill in gaps left over by the Legislature and the intention of the Legislature has to be gathered from what
has been enacted by it. It is also true that the cardinal rule of construction of the Acts of Legislature is that they should be construed according to
how the Legislature itself has expressed and when the language and the structure of a provision is clear, it should be given effect to. But that does
not mean that one should ignore the true perspective and the setting in which a provision has been placed. It is true that the language of an
enactment reflects the legislative intent but all that can be said in the present case is that Sub-rule (3) of Rule 2 has not been placed at its proper
place. Nevertheless, the intent of the Legislature is clear and the words that have been used in Sub-rule (3) are that ""In case of disobedience, or of
breach of any such terms"" and these words which are followed by the penalty to be imposed show that the Legislature intended to punish breaches
of injunctions falling under Rule 1 as well as under Rule 2. Order XXXIX, Rule 1 and Rule 2 have to be read with Section 94 of the CPC which is
as under :--
In order to prevent the ends of justice from being defeated the Court may, if it is so prescribed, --
(a) issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not give security for his appearance, and if
he fails to comply with any order for security commit him to the civil prison;
(b) direct the defendant to furnish security to produce any property belonging to him and to place the same at the disposal of the Court or order
the attachment of any property;
(c) grant a temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and order that his property be
attached and sold;
(d) appoint a receiver of any property and enforce the performance of his duties by attaching and selling his property;
(e) make such other interlocutory orders as may appear to the Court to be just and convenient.
Under Sub-clause (c) of Section 94, the Court is empowered to grant a temporary injunction and in case of disobedience commit the person guilty
thereof to the civil prison and order that his property be attached and sold. The grant of an injunction has been provided for under Order 39 and if
we read both the section and the rules together, it would appear that the punishment prescribed under Sub-rule (3) of Rule 2 would apply to an
injunction issued under Order XXXIX and Section 94. Order XXXIX has to be read in the light of Section 94 and on reading both the sections
together, it appears that what was intended by the Legislature was that the punishment provided for in Sub-rule (3) of Rule 2 was in respect of all
injunctions issued under Order XXXIX and section 94 and we cannot persuade ourselves to accept the argument that the Legislature did not
intend to punish a person who had flouted an order of injunction issued under Order XXXIX, Rule 1, although it intended to punish a person who
had committed a breach of injunction issued under Rule 2 of Order XXXIX. We are, therefore, in agreement with the view expressed in S.
Adaikkala Thevan and Another Vs. The Imperial Bank, Madura Branch and Others, and Thummu Koti Nagaiah Vs. D. Sambaiah and Others, .
The learned trial Judge had, therefore, the power to punish the appellant for breach of the injunction granted on 21st March 1960. In view of the
above finding, it is unnecessary to take resort to the provisions of section 36 and Order 21, Rule 32 of the Civil Procedure Code. Section 36
provides that -
The provisions of this Code relating to the execution of decrees shall, so far as they are applicable, be deemed to apply to the execution of
orders.
Order 21, Rule 32 lays down that where the parly against whom a decree ..... for an injunction has been passed, has had an opportunity of
obeying the decree and has wilfully failed to obey it, the decree may be enforced in the case of a decree ...... for an injunction by his detention in
the Civil prison, or by the attachment of his property, or by both. It will be seen that the penalty is almost the same as one contained in Order
XXXIX, Rule 2(3) and the period of detention in civil prison would be regulated by the provisions of Section 58 of the Civil Procedure Code. It
was on this reasoning that the power to impose penalty for a breach of an order of injunction issued under Order XXXIX, Rule 1 was sought to be
justified by the Nagpur High Court in AIR 1945 Nag 134. This is indeed a possible view of the matter, but as already stated, the power to punish
for breach of an order of injunction issued under Order XXXIX, Rule 1 can more appropriately be justified on the view that Sub-rule (3) of Rule 2
of Order XXXIX also covers cases of breach of orders for injunction issued under Order XXXIX, Rule 1.
For the reasons aforesaid, we are unable to accept the argument of Mr. Shelat that the learned trial Judge had no power in law to punish the
appellant for the breach of the order of injunction passed against him.
The appeal, therefore, fails and is dismissed with costs.