Smt. Lali and Another vs Civil Judge (Jr. Div.) and Judicial Magistrate, 1st Class and Others

Narendra Kumar Jain, J.—Admit.

Shri J.P. Gupta, Advocate, appears for the contesting respondents.

Heard learned Counsel for the parties. The plaintiff-petitioners filed a suit for permanent injunction along-with an application for temporary injunction, which was allowed by the trial court vide order dated 11th May, 2006 and the defendant-respondents were restrained not to put any obstruction while irrigating the land by the plaintiffs. The defendants did not file any appeal against the aforesaid order and that order has attained finality during the pendency of the suit. The plaintiffs filed an application in the trial court u/s 151 CPC for providing police aid to ensure compliance of the order dated 11th May, 2006 on the ground that defendants are violating the order passed by the trial court. The trial court rejected the said application vide impugned order dated 26th August, 2006 and observed that the plaintiffs have already filed an application under Order 39 Rule 2A CPC; and so far as the present application is concerned, the same requires evidence and no order can be passed on the same. Being aggrieved with the same, the plaintiffs have preferred the present writ petition.

The learned Counsel for the petitioners contended that the trial court committed an illegality in rejecting their application u/s 151 CPC for providing police aid to ensure compliance of the injunction order dated 11th May, 2006 only by observing that an application under Order 39 Rule 2A CPC has already been filed by the plaintiffs and the present application cannot be decided without any evidence, whereas the present application was altogether different than the application under Order 39 Rule 2A CPC wherein no order for compliance of the order can be passed and only the punishment order can be passed therein, therefore, it was necessary for the trial court to pass necessary order on their application u/s 151 CPC.

The learned Counsel for the respondents submitted that the order dated 11th May, 2006 passed by the trial court had already been complied by them and the trial court was fully justified in rejecting the application of the plaintiffs.

I have heard the learned Counsel for the parties and examined the impugned order passed by the trial court in the light of submissions of the learned Counsel for the parties. The injunction order in favour of the plaintiff-petitioners was passed on 11th May, 2006, and that has attained finality during the pendency of the suit as no appeal has been preferred against that order by the defendants. In case the injunction order is not complied with then there are two remedies available for the plaintiffs; first, they may file an application for compliance of the order and second they may file application for convicting of the defendants under Order 39 Rule 2A CPC for disobedience of the order. So far as the application under Order 39 Rule 2A CPC is concerned, the same can be decided only by adducing evidence by both the parties and in that application in case the trial court reaches to the conclusion that the defendants have disobeyed the order then the order of their conviction can be passed but the order for compliance of the order cannot be passed therein. So far as the application u/s 151 CPC is concerned, the trial court cannot reject the same only on the ground that another application under Order 39 Rule 2A CPC has already been preferred. It is a duty of the trial court to decide the application u/s 151 CPC on the basis of affidavits filed by respective parties about compliance or non-compliance of the order. If the trial court comes to a conclusion that the order has been complied with then no order of police aid will be passed and, in case it comes to a conclusion that the order of the trial court has not been complied with, necessary order can be passed by it. In these circumstances, I find that the learned trial court committed an illegality in rejecting the application of the petitioners filed u/s 151 CPC and, therefore, the impugned order passed by the trial court cannot be allowed to be sustained and the same is liable to be set-aside.

Consequently, the writ petition is allowed. The impugned order dated 26th October, 2006 passed by the trial court is set aside. The trial court is directed to hear and decide the application of the plaintiff-petitioners filed u/s 151 CPC, afresh, after hearing both the parties in the light of observations made herein-above. The matter has already been delayed, therefore, the trial court is directed to decide the application at the earliest but not later than two months from today. A copy of this order may be sent to the concerned court for compliance. Costs is made easy.