IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : Code of Civil Procedure, 1908 CCP 55/2000, 1141/99 and 82/1999 IN CS (OS) 635/1992 Judgment delivered on: 5.12.2007 ANAND KUMAR DEEPAK KUMAR... Petitioners - versus - HALDIRAM BHUJIAWALA and ORS.... Respondents Advocates who appeared in this case: For the Petitioner : Mr Sandeep Sethi Sr Advocate with Mr Mahendera Rana, Mr Gurvinder Singh, Mr Ratnesh Kumar, Ms Rinkoo Palliwal and Mr Abhyudai Singh. For the Respondent. : Mr C. Mukund with Mr Pankaj Jain, Mr Shashank Sharma and Mr Amit Kasera BADAR DURREZ AHMED, J 1. A preliminary objection has been raised by the learned counsel for the respondents as to the maintainability of these contempt petitions before this Court. The question raised by the learned counsel for the respondents is that there is a specific provision under the Code of Civil Procedure, 1908, which provides the remedy for violation of an interim injunction passed under Order 39 Rules 1 and 2 of the said Code. That remedy is provided by Order 39 Rule 2A. According to the learned counsel for the respondents, the provisions of Order 39 Rule 2A are both remedial and punitive. He submits that in the present case, the contempt petitions have been filed stating that there have been violations of the injunction order passed by this Court on 12.5.1999 in CS (OS) 65/1992. The suit has since been transferred to the District Court in view of the raising of the bar of pecuniary jurisdiction. According to the learned counsel for the respondents, a contempt petition under the Contempt of Courts Act, 1971 does not lie at all and the only remedy for the petitioner is by way of filing an application under Order 39 Rule 2A. He submitted that the contempt petitions, in question, were filed essentially under Sections 10 and 12 of the Contempt of Courts Act, 1971 and under Article 215 of the Constitution of India. Although, the provisions of Order 39 Rule 2A have also been mentioned.
2. In support of his contentions, the learned counsel for the respondents placed reliance on a decision of a learned Single Judge of this Court in Govind Sarda v Sartaj Hotels Apartments and Villas Pvt. Ltd and Ors.: 130 (2006) DLT 460. In paragraph 4 of the said decision, it was observed that there was no dispute that if any action under Order 39 Rule 2A CPC was to be taken the same will lie before the District Judge/Additional District Judge before whom the suit was pending. It was further observed that if an action under the Contempt of Courts Act was sought to be taken, then this Court would have the jurisdiction. The issue before the Court was whether a violation of an injunction order passed under Order 39 Rules 1 And 2 CPC could be remedied and/or dealt with under the Contempt of Courts Act when specific provisions under Order 39 Rule 2A were available. After referring to a Division Bench decision of this Court in the case of Dr Bimal Chand Sen v. Mrs Kamla Mathur: 1982 RLR 553, the learned Judge arrived at the following conclusion:- 7. In view of the judgment of this Court in Dr. Bimal Chandra Sen's case (supra) the question raised before me is no more res integra. The proper Court to approach is the Court before whom the suit at present is pending. The proper provision under which the application is required to be made is Order 39 Rule 2A, CPC. Accordingly, I dismiss the present petition with no orders as to costs. 3. Reliance was also placed on Ishwar Industries Ltd. v. The Crocus Chattels Pvt. Ltd and Others: 128 (2006) DLT 10, which is another decision of a learned Single Judge of this Court. The learned counsel referred to paragraph 11 of this decision to indicate that a distinction has been drawn between a contempt which is of a nature where interference with the administration of justice can be spelt out and a contempt which is a mere violation of an order inter-se the parties. Referring to the said paragraph 11, the learned counsel for the respondents submitted that in the former case the provisions of the Contempt of Courts Act, 1971 were attracted whereas in the latter the provisions of Order 39 Rule 2A would have to be resorted to. Reliance was also placed on a decision of a Division Bench of the Karnataka High Court in the case of Rudraiah v. State of Karnataka and Others: AIR 1982 Karnataka 182. Reference was made to paragraphs 5 and 7 of the said decision which read as under:- 5. In cases of disobedience or breach of injunction order passed temporarily during the pendencey of a suit, either under Rule 1 or 2 of Order 39, C.P.C. Action is contemplated by the very court which issues the injunction order under Rule 2A of Order 39, C.P.C. It contemplates the forfeiture of property as also putting of the person who commits breach into civil prison for a period not exceeding three months. The provisions thereunder is obviously based on the principle of contempt of Court. That being so, the general provisions made under the Contempt of Courts Act cannot be invoked by the decree holder, for forcing the party to obey the injunction order. It is a well settled principle of law that when there is special law and general law, the provisions of the special law
prevail over the general law and when special procedure and special provision are contained in the C.P.C. itself under Order 39 Rule 2A for taking action for the disobedience of an order of injunction, the general law of contempt of court cannot be invoked. If such a course [is] encouraged holding that it amounts to contempt of court, when an order of subordinate court is not obeyed, it is sure to throw open a floodgate of litigation under contempt jurisdiction. Every decree-holder can rush to this court stating that the decree passed by a subordinate court is not obeyed. That is not the purpose of Contempt of Courts Act. xxxx xxxx xxxx xxxx 7. Hence, we hold that the present petition which is merely directed by way of speedy execution of an interim injunction order, which requires a detailed enquiry with regard to suit land and the scope of the order, which can be entertained and enquired into more properly under Rule 2A of Order 39 C.P.C. cannot [be] entertained under contempt jurisdiction and accordingly we dismiss it. 4. Finally, the learned counsel for the respondents referred to the decision of a learned Single Judge of the High Court of Allahabad in the case of Smt Indu Tewari v. Ram Bahadur Chaudhari and Others: AIR 1981 Allahabad 309. He placed reliance on paragraph 3 thereof which reads as under:- 3. It is well settled that the matter of contempt is always an issue between the court and the contemner. No right vests in a private party to get any person punished for contempt. He can only inform the Court of the contempt committed by any person and thereafter it is for the Court to deal with the contemner. The party which informs the Court about the alleged contempt can only assist the Court in coming to the conclusion whether any contempt has been committed or not. As opposed to this, if a person obtains an interim injunction or a final decree for injunction, he gets a right to enforce it. The provision for enforcement of an interim injunction is contained in Order XXXIX Rule 2-A, Civil P.C. And the provision for enforcement of a decree for injunction is contained in Order XXI Rule 32, Civil P.C. According to the said provision, a person who disobeys an injunction order can be put into prison and his property can also be attached. The attachment can continue for one year and if the party against whom the order or decree is passed refused to comply, the property can even be sold. The orders passed in proceedings under Order XXXIX, Rule 2-A as well as the orders passed in execution proceedings under Order XXI Rule 32 of the Code of Civil Procedure are appealable orders. Further the proceedings under Order XXXIX, Rule 2-A as well as execution proceedings under Order XXI, Rule 32 are elaborate proceedings in which the parties can adduce their evidence and they can examine and crossexamine the witnesses. As opposed to this the proceedings under the Contempt of Courts Act are of summary nature. In my opinion, a person who has got an effective alternative remedy of the nature specified under Order XXXIX, Rule 2-A or under Order XXI, Rule 32 Civil P. C. shall not be permitted to skip over that remedy and take resort to initiate proceedings under the Contempt of Courts Act. The least that can be said is that it would not be a proper exercise of discretion on
the part of this Court to exercise its jurisdiction under the Contempt of Courts Act when such effective and alternative remedy is available to any person. I am fortified in taking this view by the observations made in Ram Rup Pandey v. R.K. Bhargava, (AIR 19171 All 231) and Calcutta Medical Stores v. Stadmed Private Ltd. (1977) 81 Cal WN 209). Relying on these two decisions I myself took the same view recently in Abdul Sattar v. Hira Lal (Civil Misc. Contempt Case No. 96 of 1979 decided on 20-2-1981). 5. Mr Sethi, who appears on behalf of the petitioner, submitted that the power to punish for contempt of court under the Contempt of Courts Act, 1971, as well as under Article 215 of the Constitution of India is in addition to all other powers that may be available with the Court including those provided under the provisions of Order 39 Rule 2A of the CPC. He submitted that as of now there is no scope for any further argument on this issue inasmuch as the Supreme Court has clearly stated the law in Welset Engineers and Anr. v. Vikas Auto Industries and Ors: 2006 (32) PTC 190 (SC). He referred to paragraph 2 of the said decision which reads as under:- 2. This appeal has been preferred from an order of the High Court of Bombay dismissing the petition filed by the appellant against the respondents for contempt of an interim order passed by the High Court. The petition was dismissed on basically three grounds:- (1) That there was a disputed question of fact involved where it would be necessary to give sufficient opportunity to the parties to lead evidence and cross-examine witnesses in order to come to a definite conclusion whether the interim order had in fact been violated; (2) That order XXXIX Rule 2 (a) of the Civil Procedure Code (referred to as the Code) was a specific provision to meet the contingency of breach of injunction orders and when such remedies were available, the person complaining of the breach of the injunction order should not be allowed to take up proceedings of contempt of Court; (3) The injunction order was passed at an interim stage and the rights of the parties were still to be adjudicated finally. All three grounds are wholly erroneous. 6. Reading sub-paragraph 2 (2) of the above extract, Mr Sethi submitted that the very question that arises in the present case was considered by the Supreme Court and the Supreme Court found that ground to be erroneous. Consequently, it was submitted by Mr Sethi that these petitions under the Contempt of Courts Act can be proceeded with independently and de hors any application that could have been moved by the plaintiff under Order 39 Rule 2A CPC. He also referred to Section 22 of the Contempt of Courts Act, 1971 which indicates that the rights under the Contempt of Courts Act are in addition to and not in derogation of the provisions of any other law relating to Contempt of Courts. 7. In rejoinder the learned counsel for the respondents submitted that the decision of the Supreme Court in the case of Welset Engineers (supra) would not be
applicable to the facts and circumstances of the present case inasmuch as the Supreme Court, in that case, was dealing with specific powers with regard to contempt under the Contempt of Courts (Bombay High Court) Rules 1994. Insofar as the Delhi High Court is concerned, no such rules have been framed and, therefore, the decision in Welset Engineers (supra) has to be read in the context of the said Bombay High Court Rules which have application only insofar as the Bombay High Court is concerned and its application cannot be extended to proceedings before the Delhi High Court. 8. While a cursory reading of the Supreme Court decision in Welset Engineers (supra) would suggest that the contention of Mr Sethi cannot but be accepted. However, a careful reading of the decision in Welset Engineers (supra) would indicate that there is substance in what the learned counsel for the respondent has submitted. The decision of the Supreme Court in Welset Engineers (supra) was rendered in the context of the Bombay High Court (Original Side) Rules, 1994. The Supreme Court observed that the High Court in that case had overlooked Section 122 of the CPC, which provided that High Courts could, from time to time, make rules regulating their own procedure and that, such rules could annul, alter or add to or any of the rules in the first schedule to the CPC. The Supreme Court observed that if there was any conflict between the provisions of the CPC and the Rules framed by the High Court, the latter would prevail. Chapter LVIII of the Bombay High Court (Original Side) Rules, 1994, pertains to proceedings for contempt under Article 215 of the Constitution of India as well as the Contempt of Courts Act, 1971. According to the Supreme Court, these Rules laid down the specific procedure for dealing with cases under the Contempt of Courts Act. In this background the Supreme Court observed that the provisions of Order XXXIX, Rule 2A did not override the provisions of the Bombay High Court (Original Side) Rules, 1994, relating to Contempt. Therefore, the Supreme Court was of the view that Order XXXIX, Rule 2A did not come into play inasmuch as the Bombay High Court had made Rules with regard to Contempt and the said Rules would prevail. However, in the case of this Court, no such Rules have been framed. Therefore, the question of conflict between any such Rules that may have been framed and the CPC does not arise. The provisions of Order 39 Rule 2A CPC are clearly applicable in this Court. 9. Moreover, as can be noted from a reading of paragraph 8 of the said decision in Welset Engineers (supra), the Supreme Court relied upon Chapter LVIII, Rule 1049 of the said Bombay High Court Rules of 1994, to hold that merely because disputed questions of facts were involved, it did not preclude the Courts from exercising the jurisdiction under the Contempt of Courts Act, 1971. This conclusion was arrived at on the basis of the provisions of the said Rule 1049 which, inter alia, provided that for determining the matter of charge in the Contempt Petition, the Court may rely either on the affidavits filed or may decide
after taking such evidence as it deems fit. In the present case, as already noted above, no rules have been framed by the Delhi High Court with regard to contempt proceedings. Therefore, the present case is entirely distinguishable from the decision of the Supreme Court in the case of Welset Engineers (supra). 10. Having held that the decision in Welset Engineers (supra) would not be applicable to the facts and circumstances of the present case, the only decisions that we are left with, are decisions of this Court as well as of the Karnataka High Court and the Allahabad High Court referred to above. The first of these decisions was the one in the case of Smt. Indu Tewari (supra) wherein, a learned single Judge of the Allahabad High Court was of the view that proceedings under Order 39 Rule 2-A as well as execution proceedings under Order 21, Rule 32 were elaborate proceedings in which the parties could adduce their evidence and they could examine and cross-examine the witnesses. As opposed to this, the proceedings under the Contempt of Courts Act are of a summary nature. The learned Judge was of the opinion that a person who had an effective alternative remedy of the nature specified under Order 39, Rule 2-A or under Order 21, Rule 32 CPC, should not be permitted to skip over the remedy and take resort to initiating proceedings under the Contempt of Courts Act. He also observed that it would not be a proper exercise of discretion on the part of the Court to exercise its jurisdiction under the Contempt of Courts Act when such an effective and alternative remedy was available. 11. As noted above, a Division Bench of the Karnataka High Court in the case of Rudraiah (supra) was of the view that when a special procedure was provided in the CPC itself under Order 39, Rule 2-A for taking action for the disobedience of an order of injunction, the general law of Contempt of Court could not be invoked. The said Division Bench also took the view that if such a course was encouraged, then it was sure to throw open a floodgate of litigation under contempt jurisdiction under the Contempt of Courts Act. 12. In Dr Bimal Chand Sen (supra), a Division Bench of this Court, after referring to the decisions in the cases of Smt. Indu Tiwari (supra) and Rudraiah (supra), observed:- These two decisions were cases where the plaintiff alleged contempt of court against a party to the suit and required the High Court to proceed under the Act. The Courts refused to take action under the Act. With regard to the provision of appeals against orders granting injunctions and punishment for disobedience provided under the CPC, the Division Bench made interesting observations as under:- 35. Appeals. There is another good reason why this application must fail. The plaintiff wants us in the High Court to try both wife and husband for contempt. Suppose we do. It will lead to startling results. The order of injunction was made by the subordinate judge under Order 39, C.P.C. From his order appeal lay to the court of the senior sub-judge. Appeals were actually filed in that court
and were heard and dismissed by the S.S.J. For disobedience the wife can be punished under Rule 2A of Order 39 by the sub judge. An appeal lies from his order under that rule. An order under rule 1, 2 and 2A of O. 39 has been made expressly appealable under O. 43 rule 1 (r). All these appeals in the present case will lie to S.S.J, the valuation of the suit being Rs 200/- for purposes of court fee and jurisdiction as fixed by the plaintiff. It would be anomalous to hold that the High Court can punish for contempt under the Act or Constitution committed of the sub judge's order. 36. The C.P.C. does not contemplate this. It expressly provides for grant of injunctions and the punishment for their disobedience. Appeals lie against grant of injunctions. Appeal lie against punishment. Appeals lie against the order to punish or refusing to punish for disobedience. The High Court does not come into the picture at all. It is neither a case of civil contempt nor criminal contempt under the Act. It is a plain case falling within the four corners of Order 39 of C.P.C. To hold that the High Court has power to punish will be to hold that sub-judge has power to grant injunction, but High Court has the power to punish for the disobedience of his order u/s 10 and 12 for civil and criminal contempt because aiding and abetting is alleged. 13. In J.R. Jindal v. Family Planning Association of India and Ors: ILR (1999) II Delhi 49, a learned single Judge of this Court was considering the question whether a contempt petition filed under the Contempt of Courts Act, was maintainable in view of the provisions contained in Order 39 Rule 2-A of CPC. The learned Judge referred to the decisions in Dr Bimal Chand Sen (supra), Rudraiah (supra) and Smt. Indu Tiwari (supra) and concluded that ordinarily a person complaining about disobedience or breach of an injunction order passed by the Civil Court should resort to the remedy under Order 39 Rule 2A CPC, rather than filing a petition in the High Court under the provisions of the Contempt of Courts Act, 1971. The same reasoning was followed in two other decisions of learned single Judges of this Court in the case of Ishwar Industries Ltd. (supra) and Govind Sarda (supra). 14. Therefore, the position is clear that the filing of a contempt petition under the Contempt of Courts Act, 1971 before the High Court, would not be the proper remedy when disobedience of an injunction order passed under Order 39, Rules 1 and 2 CPC is the bone of contention. The proper remedy would be to file an application under Order 39, Rule 2A CPC. Consequently, these contempt petitions which have been filed essentially under the Contempts of Courts Act, 1971 would not be maintainable and are dismissed as such. It would, however, be open to the petitioners to file appropriate applications under the provisions of Order 39, Rule 2A in the Court before which the suit is now pending. Liberty is granted to the petitioners to invoke such remedy.
15. These petitions, however, are dismissed. It is made clear that no view has been expressed by this Court on the merits of the matter and the decision has been arrived at purely on the question of maintainability. No order as to costs. Sd/- BADAR DURREZ AHMED ( JUDGE )