Itwar Singh Vs Ganeshram and Another

Chhatisgarh High Court (Single Judge)

322 of 2014 of 2015, Judgment Date: Feb 02, 2015

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HIGH COURT OF CHHATTISGARH AT BILASPUR
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SINGLE BENCH:HON'BLE SHRI JUSTICE SANJAY K. AGRAWAL
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Contempt Case (C) No.322 of 2014
APPLICANT : Itwar Singh
VERSUS
RESPONDENTS Ganeshram and Another
CONTEMPT PETITION UNDER ARTICLE 215 OF THE
CONSTITUTION OF INDIA READ WITH SECTION 12 OF THE
CONTEMPT OF COURTS ACT, 1971
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Present :
Shri Praveen Dhurandhar, counsel for the applicant.
Mr. Ajay Shrivastava, counsel for the respondent No.1
and 2.
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ORAL ORDER
(Passed on 02.02.2015)
1. Invoking contempt jurisdiction of this Court under Section 12
of the Contempt of Courts Act read with Article 215 of the
Constitution of India this contempt petition has been filed
complaining, non-compliance of judgment and decree for
injunction dated 02.02.2007 passed by the First Civil Judge
Class-II, Durg in matter of Itwar Singh & another v. Gram
Panchayat Achhoti & others, granting decree for permanent
injunction in favour of applicant/plaintiff and restraining the
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respondent No.2/contemnor and other defendants therein
from interfering with his peaceful possession.
2. The applicant herein Itwar Singh and Rohit Kumar instituted a
Civil Suit No.34-A/2006 before the jurisdictional Civil Court
(First Civil Judge Class-II, Durg) for seeking declaration of
their title and permanent injunction restraining the defendant
Gram Panchayat and thirty others from interfering with their
peaceful possession. The said Court by its judgment and
decree for injunction dated 02.02.2007 decreed the suit
holding that the defendants therein had no right to make an
encroachment over the suit land and restrained them from
interfering with the peaceful possession of the plaintiffs.
3. Thereafter, present applicant filed an application under Order
39 Rule 2-A of C.P.C. for breach of injunction order stating
inter alia that the present respondents/contemnors had
dismantled the Iron Gate affixed by the applicant in breach of
decree for permanet injunction granted by the civil court, and
therefore, they are liable to be punished. It is case of the
applicant herein that the said application was dismissed by
the said court finding the said application not maintainable in
law by order dated 18.07.2014.
4. The applicant has now preferred contempt petition under
Article 215 of the Constitution of India read with Section 10 &
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12 of Contempt of Courts Act for initiating contempt
proceeding against the respondent herein for breach of
decree for injunction granted by the civil court on 02.02.2007
stating inter alia that the respondents/contemnors had
dismantled the Iron Gate affixed by the applicant in breach of
decree for permanent injunction granted by the civil court and
therefore, the respondents/contemnors deserves to be
punished for the breach of decree for injunction granted by
the civil court.
5. Shri Praveen Dhurandhar, learned counsel appearing for the
contempt petitioner would submit that the
respondents/contemnors have deliberately violated the
decree for perpetual injunction granted by the civil court on
02.02.2007 by dismantling the Iron Gate and as such the
proceeding for contempt be initiated against them for the
deliberate non compliance of the Court's order.
6. Shri Ajay Shrivastava, learned counsel appearing for the
respondents/contemnors would submit that the decree for
perpetual injunction is executable decree under Order 21
Rule 32 of Code of Civil Procedure and as such contempt
petition framed and filed is not maintainable in law and
deserves to be dismissed.
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7. I have heard the learned counsel for the parties and given
thoughtful consideration to the submission made therein.
8. Section 2(b) of the Contempt of Courts Act, 1971 defines
“civil contempt” to mean “willful disobedience to any
judgment, decree, direction, order, writ or other process of a
court”, thus the contempt proceeding can be initiated for
willful disobedience to comply with or carryout an order made
in favour of a party.
9. Order 21 Rule 32 of the Code of Civil Procedure provides
manner of executing the decree for an injunction. Order 21
Rule 32 of the Code of Civil Procedure provides as under:-
“Rule 32. Decree for specific performance for
restitution of conjugal rights, or for an injunction.-
(1) Where the party against whom a decree for specific
performance of a contract, or for restitution of conjugal
rights or 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 restitution of conjugal rights by the
attachment of his property or, in the case of a decree
for the specific performance of a contract or for an
injunction] by his detention in the civil prison, or by the
attachment of his property, or by both.
(2) ................
(3) ...............
(4) Where the judgment-debtor has obeyed the decree
and paid all costs of executing the same which he is
bound to pay, or where, at the end of a [six months]
from the date of the attachment, no application to have
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the property sold has been made, or if made has been
refused, the attachment shall cease.
(5) Where a decree for the specific performance of a
contract or for an injunction has not been obeyed, the
Court may, in lieu of or in addition to all or any of the
processes aforesaid, direct that the act required to be
done may be done so far as practicable by the decreeholder
or some other person appointed by the Court, at
the cost of the judgment-debtor, and upon the act
being done the expenses incurred may be ascertained
in such manner as the Court may direct and may be
recovered as if they were included in the decree.
[Explanation.-For the removal of doubts, it is hereby
declared that the expression " the act required to be
done" covers prohibitory as well as mandatory
injunctions.";]”
10. It is well settled law that the contempt proceeding is not like a
execution proceeding under the Code of Civil Procedure,
1908. In the matter of Niaz Mohammad and others v. State
of Haryana and others1, their Lordships of the Supreme
Court pointed out the distinction between the contempt and
execution proceeding by observing as under:-
“9…… The party in whose favour an order has been
passed, is entitled to the benefit of such order. The
court while considering the issue as to whether the
alleged contemner should be punished for not having
complied with and carried out the direction of the court,
has to take into consideration all facts and
circumstances of a particular case. That is why the
framers of the Act while defining civil contempt, have
said that it must be wilful disobedience to any
judgment, decree, direction, order, writ or other
process of a court. Before a contemner is punished for
non-compliance of the direction of a court, the court
must not only be satisfied about the disobedience of
any judgment, decree, direction or writ but should also
1 (1994) 6 SCC 332
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be satisfied that such disobedience was wilful and
intentional. The civil court while executing a decree
against the judgment-debtor is not concerned and
bothered whether the disobedience to any judgment,
or decree, was wilful. Once a decree has been passed
it is the duty of the court to execute the decree
whatever may be consequence thereof. But while
examining the grievance of the person who has
invoked the jurisdiction of the court to initiate the
proceeding for contempt for disobedience of its order,
before any such contemner is held guilty and
punished, the court has to record a finding that such
disobedience was wilful and intentional………”
11. Again in the matter of Kapildeo Prasad Shah and others v.
State of Bihar and others2, the above stated proposition has
been reiterated by their Lordships of the Supreme Court in
following words:-
“10………Jurisdiction to punish for contempt exists to
provide ultimate sanction against the person who
refuses to comply with the order of the court or
disregards the order continuously. Initiation of
contempt proceedings is not a substitute for execution
proceedings though at times that purpose may also be
achieved.”
12. Their Lordships of the Supreme Court have cautioned the
courts against misuse of contempt jurisdiction to execute the
decree in a matter of R.N. Dey and other v. Bhagyabati
Pramanik and others3, by holding that the contempt court
should be slow to haul up officers for contempt for non
2 (1999) 7 SCC 569
3 (2000) 4 SCC 400
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satisfaction of money decree. The relevant paragraph states
as under:-
“7. We may reiterate that the weapon of contempt
is not to be used in abundance or misused.
Normally, it cannot be used for execution of the
decree or implementation of an order for which
alternative remedy in law is provided for.
Discretion given to the court is to be exercised for
maintenance of the court’s dignity and majesty of
law…………...
8. Further, the decree-holder, who does not take
steps to execute the decree in accordance with the
procedure prescribed by law, should not be
encouraged to invoke contempt jurisdiction of the
court for non-satisfaction of the money decree. In
land acquisition cases when a decree is passed
the State is in the position of a judgment-debtor
and hence the court should not normally lend help
to a party who refuses to take legally-provided
steps for executing the decree. At any rate, the
court should be slow to haul up officers of the
Government for contempt for non-satisfaction of
such money decree.”
13. Very recently the aforesaid proposition has been reiterated by
the Supreme Court in a matter of Kanwar Singh Saini v.
High Court of Delhi4, by holding as under:-
“18. In case there is a grievance of non-compliance
with the terms of the decree passed in the civil suit,
the remedy available to the aggrieved person is to
approach the execution court under Order 21 Rule
32 CPC which provides for elaborate proceedings in
which the parties can adduce their evidence and
can examine and cross-examine the witnesses as
opposed to the proceedings in contempt which are
summary in nature. Application under Order 39 Rule
4 (2012) 4 SCC 307
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2-A CPC is not maintainable once the suit stood
decreed. Law does not permit to skip the remedies
available under Order 21 Rule 32 CPC and resort to
the contempt proceedings for the reason that the
court has to exercise its discretion under the 1971
Act when an effective and alternative remedy is not
available to the person concerned. Thus, when the
matter relates to the infringement of a decree or
decretal order embodies rights, as between the
parties, it is not expedient to invoke and exercise
contempt jurisdiction, in essence, as a mode of
executing the decree or merely because other
remedies may take time or are more circumlocutory
in character. Thus, the violation of permanent
injunction can be set right in executing the
proceedings and not the contempt
proceedings.................
20. The proceedings under Order 39 Rule 2-A are
available only during the pendency of the suit and not
after conclusion of the trial of the suit. Therefore, any
undertaking given to the court during the pendency of
the suit on the basis of which the suit itself has been
disposed of becomes a part of the decree and breach
of such undertaking is to be dealt with in execution
proceedings under Order 21 Rule 32 CPC and not by
means of contempt proceedings. Even otherwise, it is
not desirable for the High Court to initiate criminal
contempt proceedings for disobedience of the order of
the injunction passed by the subordinate court, for the
reason that where a decree is for an injunction, and the
party against whom it has been passed has wilfully
disobeyed it, the same may be executed by
attachment of his property or by detention in civil
prison or both.
21. The provision of Order 21 Rule 32 CPC applies to
prohibitory as well as mandatory injunctions. In other
words, it applies to cases where the party is directed to
do some act and also to the cases where he is
abstained from doing an act. Still to put it differently, a
person disobeys an order of injunction not only when
he fails to perform an act which he is directed to do but
also when he does an act which he is prohibited from
doing. Execution of an injunction decree is to be made
in pursuance of Order 21 Rule 32 CPC as the CPC
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provides a particular manner and mode of execution
and therefore, no other mode is permissible.”
14. Bearing in mind the principles of law laid down by their
Lordships of the Supreme Court in above-stated cases
(supra) particularly case of Kanwar Singh (supra), in which it
has been clearly held that execution of injunction decree is to
be made in a manner prescribed under Order 21 Rule 32 of
the Code of Civil Procedure. The contempt jurisdiction is not
substitute of the execution proceeding and remedy of the
decree holder of injunction decree is to levy execution for
injunction decree as he has the effective alternative remedy
in law. Turning attention to the factual score of the case, if the
respondents/contemnors have violated the injunction decree,
the remedy of the applicant is to proceed in accordance with
Order 21 Rule 32 of the Code of Civil Procedure by levying
execution, as such, the contempt petition as framed and filed
cannot be entertained for alleged violation of injunction
decree dated 02.02.2007 being inexpedient in law.
15. The decision relied upon by the applicant in the matter of S.K.
Sarkar v. Vinay Chandra Mishra5, in which their Lordships
of the Supreme Court has held that High Court may also take
suo moto cognizance of criminal court subordinate to it,
5 (1981) 1 SCC 436
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is no way helpful to the applicant in view of the facts of this
case noted hereinabove.
16. Consequently the contempt petition deserves to and hereby
dismissed with a cost of Rs.2,000/- payable by the present
applicant to the respondents and contempt proceeding is
hereby dropped. However, the applicant is at liberty to
proceed in accordance with Order 21 Rule 32 of the Code of
Civil Procedure, 1908.
Judge
inder
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HEAD-NOTE
Contempt petition is not an appropriate remedy for breach of
injunction decree, remedy for such breach lies under Order 21 Rule
32 of C.P.C.
fu"ks/kkKk vkKfIr ds mYya?ku gsrq voekuuk ;kfpdk leqfpr mipkj ugh gS] ,sls
mYya?ku ds fy, mipkj vkns'k 21 fu;e 32 O;ogkj izfdz;k lafgrk] 1908 esa
micaf/kr gSA
(INDRAJEET SAHU)
P.S.TO HIS LORDSHIP