Heard Sri Bhupendra Nath Singh, learned counsel for the applicant.
This contempt under Section 10 of The Contempt of Courts Act, 1971 has been filed for punishing the opposite parties for committing wilful/ deliberate disobedience of the judgment / decree dated 26.8.2008/ 10.9.2008 in Suit no.67 of 2007.
The applicant claiming himself to be a tenure holder in possession of Arazi no. 633/01 (Area 0.160 hectare) filed a suit for permanent prohibitory injunction i.e, O.S. no.67/2007 against the opposite parties, which upon contest was decreed in his favour on 26.8.2008, but as the decree was sought to be disobeyed, he filed Execution Case no. 3/08, which was dismissed on 28.8.2012 on the ground that the decree is being obeyed. It appears subsequently a dispute arose afresh when the opposite parties were compelling the applicant to remove the boundary wall from Arazi No. 633/01, else the same would be removed by O.P.'s no. 3 to 6, which was protested by the applicant on 25.7.2016 before the Collector/ the Superintendent of Police concerned in view of the judgement/ decree dated 26.8.2008, but as the same was not responded, on the contrary, the opposite parties threatened to demolish the boundary wall involving the use of a JCB Machine, the applicant has rushed to this Court under Section 10 of the Act.
At the very threshold, the Court confronted the learned counsel for the applicant on the maintainability of contempt in view of the provisions of Order XXI Rule 32 CPC. Learned counsel for the applicant submitted that notwithstanding the availability of the remedy under Order XXI Rule 32 CPC, the application under Section 10 of the Act is maintainable. He also submitted that once a decree has been satisfied, subsequent disobedience could only be adjudicated through an application under Section 10 of the Act. He relied upon three judgments, i.e, S.K. Sarkar, Member, Board of Revenue Vs. Vinay Chandra Mishra, AIR 1981 SC 723, Pallav Sheth Vs. Custodian and others, (2001) 7 SCC 549 and that of this Court in Vijay Pratap Singh Vs. Ajit Prasad, AIR 1966 Allahabad 305. On a pointed query, to which paragraph of the cited judgments does he rely, Sri Singh submitted that the Court may find out the same.
The approach of Sri Singh cannot be countenanced. Learned counsels are expected to assist the court without which the system of administration of justice cannot work. Learned counsel cannot take the liberty to cite authorities even without referring to the relevant paragraph of the cited judgment at a threshhold stage when the court has to formulate a prima facie view, as to the applicability of the cited authority on the facts of a particular case. This Court is reeling under huge arrears, wherein the system has evolved certain mechanism, to curtail the duration of arguments, but without sacrificing the cause of justice. A well established practice over the years has developed, where learned counsels either mark the relevant paragraph of the judgment or even orally refer to the relevant paragraph before it is cited as an authority. This necessarily facilitates the task of the judge as to the applicability/ relevance of a citation on the facts of the case, especially at the stage of cognizance. This assistance was lacking in the instant case, despite a request made by the Court.
Now a reference to the cited authorities.
The case of Pallav Sheth (supra) related to the period of limitation prescribed for initiating contempt under Section 20 of the Contempt of Courts Act, 1971 and power of this Court under Article 215 of the Constitution of India and nowhere in the said judgment the issue in hand was even remotely discussed.
The factual scenario in Vijay Pratap Singh (supra) is as under: -
Vijay Pratap Singh, an Advocate, filed a suit against the President, General Secretary of the U.P. Congress Committee and the General Secretary of the District Congress Committee, Azamgarh alleging that the election so held on 10.4.1964 for which the plaintiff and one Badri Singh were the only two candidates, the latter was declared elected despite illegalities/ irregularities in the conduct of the election, the election be declared as void/ inoperative. An ad interim order dated 18.4.1964 was passed restraining the District Election Officer and the Polling Officer concerned from holding elections of the DCC, PCC etc. It appears that the Congress Committee of the Indian National Congress, resolved that the election dispute be decided by a Tribunal constituted and not by recourse to judicial intervention and in furtherance thereof, letters were issued by the defendants of the suit to the Returning Officer expelling the plaintiff/ the contempt applicant from the Membership of the Congress. The learned Munsif vacated the ad interim injunction on the ground that the plaintff/ the contempt applicant is no longer a member of the Congress, which prompted him to file a contempt before this Court for punishing the defendants for committing contempt of the order of learned Munsif. An issue arose as to whether O.P. no.1 of the contempt upon having been appointed as a Governor of a State would still face contempt in view of the immunity granted to the office of Governor under Article 361(2) of the Constitution of India. In so far the other opposite parties were concerned, as they had issued letters to the plaintiff/ contempt applicant for approaching the Court of law as an anti-social/ reprehensible and a wilful misbehaviour without a word of regret/ apology, they were held guilty of contempt.
The third decision in the case of S.K. Sarkar (supra), related to the jurisdiction/ power of the High Court to take suo motu action under Section 15 of the Contempt of Courts Act, 1971.
Beyond aforesaid, nothing less nothing more, was held, yet learned counsel for the applicant cited the said authorities in support of his contention.
The applicant has a decree of permanent prohibitory injunction in his favour. Order XXI Rule 32 provides the mode of execution of such a decree, which is extracted hereunder:
"32. Decree for specific performance for restitution of conjugal rights, or for an injunction. -- (1) Where the party against whom a decree for the 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 by his detention in the civil prison, or by the attachment of his property, or by both."
A perusal of the aforesaid would manifest that a decree for an injunction can be enforced either by detention in prison or by attachment of the property or by both against the party, against whom a decree for injunction has been obtained, provided such a party has wilfully failed to obey it.
Ordinarily, contempt is not a mode of execution of a decree, when other modes have been provided. The Apex Court in Kanwar Singh Saini Vs. High Court of Delhi, (2012) 4 SCC 307, had an occasion to examine the enforcement of interim/ final orders/ decree of the Court including undertakings given to the Court vis-a-vis contempt.
Paragraph 21 of the said judgment is quoted hereunder:
"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 provides a particular manner and mode of execution and therefore, no other mode is permissible."
Thus from the language of Order XXI Rule 32 CPC, it does not transpire that proceedings under Order XXI Rule 32 CPC cannot be invoked, once a decree of permanent injunction is satisfied. On the contrary, language is explicit, as it provides that as and when there is a wilful disobedience of a decree, it may be enforced by detention/ attachment or by both as against the party in default. The rationale is that in the event a decree-holder complains of wilful disobedience on the part of a judgment debtor, then the proceedings under Order XXI Rule 32, would involve investigation of facts and leading of evidence, as to whether there is any wilful disobedience or not and only thereafter, a finding can be arrived at as to the wilful disobedience. If so, then penal consequences of civil detention/ attachment of property or both would follow.
Thus, this Court has no hesitation in holding that the remedy, if any, for the applicant is to invoke the forum under Order XXI Rule 32 CPC, the instant contempt is not maintainable and is liable to be dismissed.
The contempt is dismissed in limine.
Order Date :- 2.9.2016 N.S.Rathour