Kabul Singh vs Shafi Ahmad And Others

Ravindra Maithani, J

By means of the instant contempt petition, the petitioner seeks indulgence of this Court qua an order passed on 05.04.2023, in Civil Suit No. 44 of 2023, Kabul Singh Vs. Shafi Ahmad and Others (“the case”), by the Court of Civil Judge, Kashipur, District Udham Singh Nagar on an application filed under Order 39 Rule 1 and 2 of the Code of Civil Procedure, 1908 (“the Code”), by which the respondents have been restrained to interfere in the disputed property.

Heard learned counsel for the petitioner and perused the record.

At the very outset, the Court wanted to know as to why an application under Order 39 Rule 2A of the Code has not been moved before the Court concerned in the case? Learned counsel would submit that the respondents are continuously interfering in the scheduled property.

The order dated 05.04.2023, has been passed on an application for temporary injunction. It is an ad interim order, without hearing the respondents, calling them to file objections and in the meanwhile not to interfere in the disputed property. In fact, the order itself directs the petitioner to comply with the provisions of Order 39 Rule 3 of the Code. .

The consequence of disobedience or breach of an injunction granted under Order 39 Rule 1 and 2 of the Code is provided under Order 39 Rule 2A of the Code. It reads as hereunder:-

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 order 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.

In case, the order dated 05.04.2023 has been violated, the petitioner may very well move an application under Order 39 Rule 2A of the Code before the court concerned. What was the position of possession? How the interference was made? Who has made it? These all are factual aspects. They are privy to the litigation, which is pending before the Court. They might require filing of affidavits, may be survey reports, may be Commission reports. Therefore, the petitioner for contempt may not be entertained. Accordingly the contempt petition deserves to be dismissed at the stage of admission itself.

The contempt petition is dismissed in limnie.