CPC-Constructive notice, held not sufficient-‘Willful disobedience’ to be proved beyond doubt-Court not to proceed on surmises or inferences
As regards the contention raised on behalf of the plaintiff/petitioners with regard to presumption of service of notice in a case of a notice sent by registered post there can be no quarrel with the aforesaid proposition. However, in order to attract the provisions under Order XXXIX Rule 2A there has to be not mere ‘disobedience’ but it should be a ‘willful disobedience’ and the act of willful disobedience is required to be proved by cogent evidence and a person cannot be held to be guilty of the disobedience merely on the basis of a constructive notice or a presumption with regard to service of notice.
FULL TEXT OF THE HIGH COURT ORDER / JUDGMENT
1. Heard Sri Manish Dev Singh, learned counsel for the petitioner and Sri Sukesh Kumar, learned counsel appearing for the respondents.
2. The present petition seeks to assail the order dated 25.10.2019 passed by the Additional District Judge, Court No. 2, Aligarh in Misc. Civil Appeal No. 40 of 2019 (Shyam Singh and another vs. Makkhan Singh).
3. In terms of the aforesaid order, an appeal preferred by the defendant respondents under Order XLIII Rule 1 (r) C.P.C. has been allowed and the order dated 10.04.2019 passed by the Civil Judge (Senior Division) Aligarh in Misc. Case No. 3800015 of 2016 (Sri Makhhan Singh and another Vs. Sri Shyam Singh and others), whereby the defendants had been held to be guilty and the trial court had sentenced them to undergo civil imprisonment for a period of three months, has been set aside.
4. Contention of learned counsel appearing for the plaintiff/petitioners is that the order of adinterim injunction granted in favour of the plaintiffs on 28.11.2016 directing the parties to maintain status quo regarding the disputed property till the next date was sent by registered post dated 29.11.2016 and inspite of that the defendants harvested the wheat crop standing on the disputed land which was a clear breach of the adinterim injunction and accordingly the trial court had rightly passed the order under Order XXXIX Rule 2A and the appellate court erred in setting aside the same. Reliance has been placed on the judgment in the case of C.C.Alavi Haji Vs. Palapetty Muhammed and another1 for the proposition with regard to the presumption of service of notice in a case of a notice sent by registered post.
5. Per contra, learned counsel appearing for the defendant respondents has supported the order passed in the Misc. Civil Appeal by submitting that the injunction order having never been served, the defendants could not be held to be guilty of breach of the said order and the finding recorded by the trial court with regard to sufficiency of service was erroneous. It is further submitted that there was no material to prove the exclusive ownership and possession of the disputed land by the plaintiffs or that the crops had been sown by them. Further, it is submitted that the defendants having been duly recorded as cosharers in the revenue records the trial court could not have overlooked the same. Reliance has been placed on the judgment in C.Surendranath Vs. Mambally’s Bakery2 to contend that in order to attract the provisions under Order XXXIX Rule 2A it should not be a mere case of ‘disobedience’ but the same should be demonstrated to be a case of ‘willful disobedience’.
6. The question which was under consideration in the Misc. Civil Appeal was as to whether the defendants could be held to be guilty of disobedience or breach of injunction so as to attract the provisions contained under Order XXXIX Rule 2A.
7. The Court hearing the Appeal in order to decide the aforesaid question framed the following points of determination.
“1.Whether there was some injunction order passed by the Court ?
2. Whether the injunction order was conveyed to or served upon the appellants/contemnors?
3. Whether the appellants/contemnors had time and means to obey the order?
4. Whether the disobedience or breach was deliberate and willful?”
8. The point no. 1 with regard to the existence of the injunction order was answered in the affirmative. As regards the point no. 2, which was as to whether the injunction order had been served upon the defendants the appellate court upon considering the material on record has drawn a conclusion that it was not clear as to when and on which date the notices were served on the defendants and has accordingly held that there was no clinching evidence regarding service of notice. It has taken note of the fact that the trial court had not given any cogent reason to arrive at a conclusion that service of notice on the defendants was sufficient. Having held the service of notice of the adinterim injunction order on the defendants to be not sufficient, the appellate court held that nothing further was required to be looked into. Further, taking notice of the fact that the disputed property was a joint property and no partition having taken place the order of status quo would not have the effect of dispossessing either of the parties and also taking into consideration that there was nothing to suggest that the status quo order was also intended to restrain the continuance of the agricultural activity, the alleged act of breach was held to be not deliberate or willful and accordingly the order of civil incarceration passed by the trial court has been set aside.
9. The issue which thus falls for consideration by this Court is as to whether an allegation of disobedience merely on the basis of a constructive notice or a presumption with regard to service of notice would be sufficient to attract the provisions under Order XXXIX Rule 2A or as to whether the said powers can be invoked only in a case of ‘willful disobedience’ where the injunction order the breach of which is alleged was in the knowledge of the person against whom the application has been made.
10. In order to appreciate the controversy Rule 2A under Order XXXIX C.P.C. as inserted by The Code of Civil Procedure (Amendment) Act 1976 [Act 104 of 1976], may be adverted to. For ease of reference the aforementioned provision is being extracted below:
“2A.Consequence of disobedience or breach of injunction.- (1) In the case of disobedience of any injunction granted or other order made under Rule 1 or Rule 2 or breach of any of the terms on which the injunction was granted or the order made, of the court granting the injunction or making the order, or any Court to which the suit or proceeding is transferred, may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the Court directs his release.
(2) No attachment made under this rule shall remain in force for more than one year at the end of which time, if the disobedience or breach continues, the property attached may be sold and out of the proceeds, the Court may award such compensation as it thinks fit to the injured party and shall pay the balance, if any, to the party entitled thereto.”
11. The scope of the powers exercised by a court under Order XXXIX Rule 2A came up for consideration in the case of Food Corporation of India Vs. Sukh Deo Prasad3 and it was held that these powers are punitive in nature akin to the powers to punish for civil contempt in the Contempt of Courts Act, 1971 and therefore the person who complains of disobedience or breach has to clearly make out beyond any doubt that there was an injunction or order directing the person against whom the application is made, to do or desist from doing some specific thing or act and that there was disobedience or breach of such order. The Court exercising powers under Order XXXIX Rule 2A cannot proceed on surmises, suspicion or inferences. The observations made in the judgment are as follows:
“38. The power exercised by a court under order 39, Rule 2A of the Code is punitive in nature, akin to the power to punish for civil contempt under the Contempt of Courts Act, 1971. The person who complains of disobedience or breach has to clearly make out beyond any doubt that there was an injunction or order directing the person against whom the application is made, to do or desist from doing some specific thing or act and that there was disobedience or breach of such order. While considering an application under order 39 Rule 2A, the court cannot construe the order in regard to which disobedience/breach is alleged, as creating an obligation to do something which is not mentioned in the “order”, on surmises, suspicions and inferences. The power under Rule 2A should be exercised with great caution and responsibility.
39. It is shocking that the trial court had entertained an application under Order 39 Rule 2A from a person who was not entitled to file the application, has accepted an interpretation of the order which does not flow from the order, and has created a liability where none existed, resulting in attachment of the assets of FCI to an extent of more than Rs.1.12 crores. The order dated 15.12.2004 cannot be supported or sustained under any circumstances.”
12. The provisions contained under Order XXXIX Rule 2A came up for consideration in a recent judgment in the case of taxguru.in U.C. Surendranath Vs. Mambally’s Bakery2 wherein it has been stated that for holding a person guilty of willful disobedience under Order XXXIX Rule 2A there has to be not mere ‘disobedience’ but it should be a ‘willful disobedience’ and that the allegation of willful disobedience being in the nature of criminal liability the same has to be proved to the satisfaction of the court that the disobedience was not mere ‘disobedience’ but a ‘willful disobedience’. The observations made in this regard in the judgment are as follows:
“7. For finding a person guilty of willful disobedience of the order under XXXIX Rule 2A C.P.C. there has to be not mere “disobedience” but it should be a “willful disobedience”. The allegation of willful disobedience being in the nature of criminal liability, the same has to be proved to the satisfaction of the court that the disobedience was not mere “disobedience” but a “willful disobedience”. As pointed out earlier, during the second visit of the Commissioner to the appellant’s shop, tea cakes and masala cakes were being sold without any wrappers/labels. The only thing which the Commissioner has noted is that “non removal of the hoarding” displayed in front of the appellant’s shop for which the appellant has offered an explanation which, in our considered view, is acceptable one.”
13. It therefore follows that the powers of Rule 2A of Order XXXIX can be invoked only in a case of a willful disobedience and in a case where the defendant had no knowledge of the injunction order of which breach was alleged, a case of willful disobedience cannot be made out so as to invite the wrath of the penal action as envisaged in the said provision.
14. The proceedings under Rule 2A of Order XXXIX are of a serious nature and in terms thereof the Court is empowered to take away the liberty of an individual and order detention of the person who violates the order. The power being of a penal nature the burden lies heavily on the person who alleges disobedience to prove the offence beyond reasonable doubt.
15. The powers under Rule 2A therefore cannot be exercised on a mere apprehension or as a matter of course in the absence of clear proof that the order which was to be obeyed was clear, unambiguous and within full knowledge of the person who is alleged to have disobeyed the same. There is no room for inferring an intention to disobey an order unless the person charged had knowledge of the order.
16. Before punishment can be imposed for breach of injunction the party which complains of the breach would be required to establish that the order of injunction is not open to two interpretations and the same is unambiguous and the act complained is not in good faith.
17. Rule 2A under Order XXXIX C.P.C. taxguru.in as inserted by the Amendment Act, 1976 deals with punitive consequences for the disobedience or breach of an order of injunction granted by the civil court. It provides for attachment of the property of the person in breach and also for detention in civil prison. The power under this provision is somewhat identical to the civil contempt jurisdiction and enables the civil courts which are not courts of record to effectively implement their orders.
18. In the facts of the present case the Appellate Court having recorded a conclusion that there was no material to show that the injunction order had been served on the defendants, a case of willful disobedience had not been made out so as to attract the provisions of Order XXXIX Rule 2A.
19. The order passed by the Appellate Court setting aside the order of the Trial Court, in the said circumstances cannot be faulted with.
20. As regards the contention raised on behalf of the plaintiff/petitioners with regard to presumption of service of notice in a case of a notice sent by registered post there can be no quarrel with the aforesaid proposition. However, in order to attract the provisions under Order XXXIX Rule 2A there has to be not mere ‘disobedience’ but it should be a ‘willful disobedience’ and the act of willful disobedience is required to be proved by cogent evidence and a person cannot be held to be guilty of the disobedience merely on the basis of a constructive notice or a presumption with regard to service of notice. In this regard, reference may be had to the observations made in the case of Rajendra Sharma Vs. Satish Chandra Garg & others4.
“13. We have perused these and we find that in the affidavit the appellant in para 3 has stated that respondent nos. 1 to 3 were bound by the order dated 23rd February, 2004 being successor in interest of the third party. This statement is not a statement of fact but it is a legal principle which may amount to constructive notice of the injunction order dated 23.2.2004 but for constituting willful disobedience of the injunction order the disobedience must be willful and both should be proved by cogent evidence. A person cannot be held guilty of such disobedience merely on the basis of constructive notice or surmises.”
21. This Court may also take notice of the fact that the power of superintendence conferred under Article 227 is discretionary and is to be exercised very sparingly on equitable principles. The power of interference under Article 227 by exercising this reserve and exceptional power is to be kept to the minimum and the Court exercising this power cannot act as a Court of appeal over the orders of the Court or tribunal subordinate to it. The parameters of interference by High Courts in exercise of its power of superintendence are to be guided by the principles laid down in the case of Waryam Singh and another Vs. Amarnath and another5 and reiterated in Shalini Shyam Shetty & Anr. Vs. Rajendra Shankar Patil6 and also in Radhey Shyam & Anr. Vs. Chhabi Nath & Ors.7
22. Counsel for the petitioner has not been able to point out any material error or illegality in the orders passed by the court below so as to warrant interference in exercise of power under Article 227 of the Constitution of India.
23. The petition lacks merit and is accordingly dismissed.
1. (2007) 6 SCC 555
2. AIR 2019 SC 3799
3. (2009) 5 SCC 665
4. 2015 (5) ADJ 214 (DB)
5. AIR 1954 SC 215
6. (2010) 8 SCC 329
7. (2015) 5 SCC 423