Janki Jeevan Sharan Richariya Dead Through Lrs Siddhant Richariya & Ors. vs Nisha Richhariya & Ors.

It is therefore prayed that the Hon'ble Court be pleased to initiate proceedings under Order 39 Rule 2-A of CPC as pleaded above against the non-applicants for not obeying their undertaking vide order dated 03.03.2025 passed in MP No. 5852/2024.

7.

Mr. Narayanaswami Iyer contends that any proceeding taken under Act XII of 1926 can be initiated only by an application filed on the Original Side of this Court and there was no other remedy open to the plaintiff. In the view I take, it is not necessary for me to express any opinion as to whether proceedings under Act XII of 1926 must necessarily be taken on the Original Side of this Court or can be dealt with on the Appellate Side. It is not suggested that if the case is covered by the provisions of O. 39, the lower Court had no jurisdiction to deal with the matter. The main argument is that there is no injunction as contemplated by O. 39. I have carefully considered this question. It is common knowledge that in proceedings before the Courts in the mofussil hundreds of orders are passed on undertakings given by one or other of the parties. Unless I find some reason compelling me to hold that the lower Courts themselves are powerless to deal with breaches of such undertakings I am loath to deny to them such power. Whether what has happened in any particular case amounts to an injunction or not must be decided with reference to the substance of the Court's order and not as a mere matter of form. In the view that I am bound to uphold the authority of the Court so far as is reasonable and within the limits permitted by law, I would hold that when a Court accepts an undertaking given by a party its order amounts in substance to an injunction restraining him from acting in breach thereof. The form only implies that the Court is prepared to deal with him honourably in the expectation that he will treat his undertaking as equivalent to an order of Court. It does not seem to me to come with any grace from the mouth of a person who has given such an undertaking to say that because the Court was good enough to accept that undertaking and did not pass an order of its own he is not in the position of a person bound by an order of the Court. The difficulty referred to (1) i n Kochappa v. Sacbi Devi does not arise in the present case, because the order was here passed on an application made by the party and not suo motu by the lower Court. In these circumstances I see no reason to interfere with the order of the lower Court. (Emphasis supplied)

2.

He also undertook to clear the arrears of mesne profits and to continue to pay them regularly as and when due. Furthermore, he undertook not to part with possession in favour of any person other than the landlord decree-holder until he received the notice contemplated by the first condition. It is not disputed that the appellant received that notice on October 10, 1974. There is nothing in the conditions of the undertaking to imply that it was merely a consent order passed upon an agreement between the parties to which the order of the court had been superadded. The order incorporated express undertakings to the court although these may have induced the plaintiff to agree to the passing of the order in the form in which it was passed instead of pressing for an order of dismissal of the revision application before the High Court after which he could have executed his decree immediately. This feature, in itself, could not convert the order actually passed upon the undertakings given into a mere consent order. It was clearly a case of express undertakings to the court incorporated in the order. The order passed on January 22, 1973, ended as follows:

“In view of the respective undertakings given by the parties to this proceeding, which undertakings are on record, the petitioner does not wish to proceed with this CRA and does not therefore survive. The application is dismissed. No order as to costs in this circumstance of the case.” (Emphasis supplied)

4.

Having considered the argument, I do not think the learned counsel is right. The undertaking given by the petitioner solemnly before the Court was taken into account and was the foundation of the order rejecting the injunction application. In this circumstance, the undertaking must be deemed to be a part of the order passed by the Court and its violation must render the petitioner liable to punishment. To interpret the law otherwise would render it unreasonable and absurd. My view is supported by the decision i n A.B. Gurnmurthi Chetty v. Sella Perumal Pillai [A.I.R. 1936 Madras 651.] . I therefore, hold that the petitioner has been rightly held liable by the Courts below. (Emphasis supplied)

6.

Any action by which the process of the Court is attempted to be thwarted has to be viewed seriously. If an order of injunction is violated, that violation has to be dealt with sternly and seriously, for, otherwise, it will undermine the very basis of the Rule of Law. There is no difference, whether the violation pertains to an order, or to an undertaking made before a Court of law, which too will have as much effect as an interim injunction in such circumstances. The Court below disposed of such a serious complaint without considering it on merits. In so doing, it has erred; that error has to be corrected.

7.

On merits, there cannot be any doubt that an undertaking had been given by the respondent before the Court below during the pendency of the appeal before that Court. The materials indicate that undertaking was not honoured during the pendency of the appeal. A departure from the undertaking so given to the court below is therefore established. That action is punishable. (Emphasis supplied)

2-A. 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 order made, of 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.

"34.

In view of the above discussion, as such proceedings were not maintainable, the order of reference itself was not warranted. It also becomes crystal clear that the appellant had been subjected to unfair procedure from the institution of the suit itself. The suit had been “disposed of” in great haste without following the procedure prescribed in CPC. Once the suit has been decreed, the court could not entertain the application under Order 39 Rule 2-A CPC as the suit had already been decreed and such an application is maintainable only during the pendency of the suit in case the interim order passed by the court or undertaking given by the party is violated. In the instant case, no interim order had ever been passed and the undertaking given by the appellant-defendant not to dispossess the said plaintiff culminated into a final decree and thus, if any further action was required, it could be taken only in execution proceedings. There has been manifest injustice in the case and the doctrine of ex debito justitiae has to be applied in order to redress the grievances of the appellant-defendant. The judgment and order impugned cannot be sustained under any circumstance.

35.

The courts below have proceeded with criminal contempt proceedings not for disobeying any judgment or order but for taking inconsistent pleas in the reply filed by the appellant to the application under Order 39 Rule 2-A CPC, accepting it to be a false affidavit. Purposes of initiation of contempt proceedings are twofold : to ensure the compliance with the order passed by the court; and to punish the contemnor as he has the audacity to challenge the majesty of law. In the instant case, admittedly, the grievance of the complaint had been disobedience of decree/order of the civil court dated 12-5-2003. The High Court convicted the appellant and sent him to jail but did not grant any relief so far as the enforcement of the order dated 12-5-2003 is concerned. We failed to understand as under what circumstances, the High Court did not even consider it appropriate to enforce the judgment/order/decree if it had been disobeyed by the appellant. The instant case is a glaring example of non-application of mind and non-observance of procedure prescribed by law for dealing with such matters. Entire proceedings have been conducted in most casual and cavalier manner."