M/S. Fire Arcor Infrastructure (Pvt.) Ltd. vs Avinash K. Chaurasia & Anr.

Heard.

Rule. Rule made returnable forthwith. Heard finally with the consent of learned Counsel appearing for the Petitioner and Respondent Nos. 1 and 2-party appearing in person.

By way of the present petition, the Petitioner-Company, through its Authorized Signatory, Shri Swapan Manoranjan Bhattacharje, is assailing the order dated 07.03.2024, passed by the learned 5th Joint Civil Judge, Senior Division, Nagpur, in M.J.C. No. 732/2022 ((hereinafter referred to as the ‘Impugned Order’), whereby the Application preferred by the Petitioner under Order XXXIX Rule 2-A read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as the “CPC”) came to be rejected, inter alia, on the ground that the Petitioner-company had failed to examine any independent witnesses in support of its allegations of defamation against the Respondents herein.

The facts, in succinct, are as follows:

(4.1) The Petitioner, is a Private Limited Company, incorporated under the Companies Act, 1956, and represented, through its Authorized Signatory, namely Shri Swapan Manoranjan Bhattacharje (hereinafter referred to as the ‘Petitioner-Company’ for the sake of brevity). The Petitioner-Company is involved in the business of real estate development, and in pursuance thereof, the Petitioner-Company started developing a Township in the area, admeasuring about 150 Acres, at Village – Kotewada, Tahsil – Hingna, Dist. Nagpur. The Respondent Nos. 1 & 2 herein, are husband and wife who have purchased a property in the said Township and are residents of the same.

(4.2) It is alleged by the Petitioner-Company that Respondent No.1 has a tendency to file false, frivolous and defamatory complaints against Petitioner-Company and its Directors before various authorities, and being aggrieved thereby, the Petitioner – Company filed a Special Civil Suit for declaration of damages and injunction before Civil Judge, Nagpur (hereinafter referred to as the ‘Ld. Trial Court’), which is registered as Spl Civil Suit No. 113 of 2019.

(4.3) In the said suit, the Ld. Trial Court vide its order dated 17.06.2019, passed below Exhibit-5, granted an Ad-interim injunction in favour of the Petitioner-Company and restrained the Respondents from making defamatory statements against the Petitioner-Company till further orders. The said injunction was subsequently confirmed by order dated 08.07.2022, and the restraint was directed to operate till the disposal of the suit.

(4.4) It is alleged that subsequent to passing of the Injunction Order, the Respondents persisted with their acts of sending defamatory email despite there being a restraining order, and being aggrieved thereby, the Petitioner-Company filed an Application under Order XXXIX Rule 2-A R/w Section 151 of the CPC for taking action against the Respondents for disobedience of injunction order passed in Spl. Civil Suit No. 113/2019, before the Ld. Trial Court, and the same was registered as M.J.C No. 732/2022 (hereinafter referred to as the ‘said proceedings’ for the sake of brevity). In the said Proceedings before the Ld. Trial Court, the Respondents despite being duly served failed to appear before the Ld. Trial Court and therefore the said proceedings proceeded ex-parte against the Respondents.

(4.5) The Petitioner-Company in the said proceedings had examined two witnesses in order to substantiate their claims of sending of defamatory emails by the Respondents.

(4.6) However, Ld. Trial Court on 07.03.2024 passed the impugned order and rejected the said Application by holding that the Petitioner-Company has failed to prove that the Respondents have disobeyed or have committed breach of the Injunction Order as the Petitioner-Company has failed to adduce the evidence of persons or authorities to whom the alleged defamatory emails were sent.

(4.7) Thus, the Petitioner-Company by being aggrieved with the impugned order passed by the Ld. Trial Court in M.J.C No. 732/2022, has assailed the same before this Court under Article 226 & 227 of the Constitution of India, 1950.

I have heard Shri. Shyam Dewani, learned Counsel appearing for the Petitioner, as also the Respondent Nos. 1 and 2 who are appearing in person.

It is submitted by Shri. Dewani, that the Ld. Trial Court has taken a hyper technical view while passing the impugned order and has ignored the evidence and material placed on record by the Petitioner-Company which established disobedience of the Injunction Order. He further submits that the Ld. Trial Court has committed a grave error in observing that the Petitioner ought to have examined persons/authorities to whom the defamatory emails were addressed, as the emails placed on record clearly establish the disobedience of the Injunction order.

He submits that the reasoning of the Ld. Trial Court is ex-facie unsustainable in the eyes of law as well as on facts for the reason that while coming to the conclusion, the Ld. Trial Court has overlooked the material placed on record and also the fact that the emails were not only restricted to the Director of the Company alone but also to various other persons, including officials of the Petitioner-Company, other persons and also various Government authorities which clearly establish the disobedience of the Injunction order.

It is further submitted by Shri. Dewani that the Ld. Trial Court has failed to consider the fact that the proceedings under Order XXXIX Rule 2 – A of the CPC are summary in nature, whose object is to ensure that the order of Injunction is not disobeyed. However, the Ld. Trial Court has transgressed its jurisdiction by failing to restrict itself to the alleged act of disobedience and has gone into the merits of the dispute which is sub-judice before the Court.

It is further contended by him that the Ld. Trial Court has erred in giving a finding that addressing email on personal email ID does not amount to defamation, as the Ld. Trial Court has failed to consider the fact that it was not deciding a case for Injunction but a case of disobedience of an existing Injunction Order. He further submits that the Ld. Trial Court has also failed to consider the fact that the entire documentary and oral testimony brought on record by the Petitioner-Company remains unrebutted and unchallenged, and therefore the same is to be considered as admitted. However, the Ld. Trial Court has ignored the effect of uncontroverted evidence and has dismissed the application in a legally untenable ground.

He further submits that the Ld. Trial Court has also failed to appreciate the settled principle of law, wherein if a party being fully aware of the order of the Court and despite knowing the consequences of its violation, ignores it or acts in violation thereof, then such disobedience is to be held as wilful disobedience. He submits that the Respondents were well aware of the Order of Injunction and even inspite of the same, the Respondents blatantly addressed emails and acted in contravention thereof.

Additionally he would further submit that the Respondents have not only disobeyed the Injunction Order passed by the Ld. Trial Court but also the Orders passed by this Court during the pendency of the present Petition, wherein the Respondent No.1 was directed to refrain from posting any material on any social media platform.

The learned counsel for the Petitioner Company, in order to buttress his submissions, has relied on the following judgments:-

Per contra, the Respondent Nos. 1 and 2 appearing in person support the impugned order and submit that the Ld. Trial Court has rightly rejected the application of the PetitionerCompany. It is the contention of the Respondents that in order to prove breach of any order, strict proof of breach is mandatory, and mere allegation of emails to Petitioner’s representative is insufficient, and in absence of examination of any third party no breach is proved and the Ld. Trial Court has rightly rejected the application.

The Respondents further submit that the Injunction order passed by the Ld. Trial Court is vague and open to more than one reasonable interpretation. It is canvassed by the Respondents that the Injunction Order merely restrains “Defamatory Statements in any manner whatsoever” and the Respondents, acted as prudent and reasonable persons, who understood the same to mean that all exceptions and defences available under defamation remained intact. Thus, it is the contention of the Respondents that such misinterpretation of an order cannot be held against them.

It is further contended by the Respondents that the Injunction order is vitiated by fraud as the Petitioner has obtained an ex-parte order by suppressing the reason for Respondent’s absence.

Respondents further submit that the Injunction Order was impossible to perform as according to them the Injunction order commands them to remain mute spectators, therefore the Respondents cannot be punished for orders which are impossible to perform.

Lastly it is submitted by them that jurisdiction of this Court under Article 227 is purely supervisory and the same cannot be converted into original contempt jurisdiction and therefore, this Court cannot conduct a full scale enquiry into disobedience under Order XXXIX Rule 2-A of CPC.

To support their contentions, the Respondents have relied on various judgments of the Hon’ble Apex Court as well as various High Courts, citations of the which are reproduced below:

After hearing both the parties at length and perusing the entire record with the assistance of the learned counsel appearing for the petitioner-Company and the respondents, rival contentions fall for my consideration.

In the backdrop of these facts, I have perused the record, which is voluminous in nature, as also the impugned order. As can be seen from the impugned order, the proceedings bearing MJC No.732 of 2022 were filed under the provisions of Order XXXIX Rule 2A of the CPC for disobedience of order of injunction passed in Special Civil Suit No.113 of 2019. The said suit was filed by the present petitioner seeking a declaration, claim for damages and injunction. In the said matter, order below Exhibit 5 i.e. an application for temporary injunction was passed on 08.07.2022. By way of said order, the trial Court restrained the respondents herein from making defamatory statements against the petitioners. The trial Judge, in the impugned order, in para 3, has mentioned various emails sent by the respondent herein, which, according to the petitioners, are defamatory in nature.

In that view of the matter, the present application was filed stating that the act of sending of such e-mails which contained defamatory statements was in breach of the order of injunction of the trial Court. It can also be seen that the petitioner i.e. the applicant before the trial Court examined itself and two witnesses in support of its contentions wherein the documents were duly exhibited and proved. It is pertinent to note that there is nothing on record in the impugned order to show that as to whether the witnesses of the applicant/petitioner's were cross examined. The only reason which has weighed with the trial Court in rejecting the application for injunction is found in para 15 and 16 of the order. As can be seen from the narrations in the said paras, the trial Court records that sending of e-mails by the respondent herein is clearly made out. However, it has non-suited the petitioner only on a premise that it has not examined any of the persons to whom the said e-mails were sent. In the opinion of the trial Court, it is obligatory to adduce the evidence of those persons or authorities to whom the non-applicants have sent the alleged defamatory e-mails but, however, since no such evidence is forthcoming it has proceeded to reject the application.

In my considered opinion, the reasoning as spelt out above is fallacious. The trial Court ought to have appreciated that e-mails sent to various authorities by the respondents herein was an admitted fact on record. The contents thereof were self-explanatory. Furthermore, in my considered opinion, the Court cannot close its eyes and non-suit litigants only because the persons to whom such e-mails were sent, are not examined. The reasoning, in my opinion, is erroneous. It would be, therefore, in the interest of everyone concerned that the matter is relegated to the trial Court to decide the matter afresh and have a re-look at the reasoning adopted by it while rejecting the application for breach of injunction. Since, I have chosen to relegate the matter, the various judgments cited by the parties are not discussed.

In that view of the matter, the petition is allowed, impugned order is quashed and set aside. The matter is relegated to the trial Court for re-deciding the MJC No.732/2022 in accordance with law.

It is, however, clarified that the order of temporary injunction dated 08.07.2022 which restrained the respondents from making any defamatory statements has not been touched upon by this Court. The Court has only examined the correctness or otherwise of the order passed in MJC No.732/2022.

Needless to mention that the trial Court would grant an opportunity of hearing to the parties concerned and also take into consideration the material placed before it by the parties. In above mentioned terms, the petition is allowed and disposed of.