Judgment:
V.V.S. Rao, J.
1. Petitioners are defendants in O.S. No. 793 of 2003 : Earlier O.S. No. 473 of 1999 on the file of the Court of Junior Civil Judge Palakol on the file of the Court of Principal Junior Civil Judge, Narsapur, filed by respondents (hereafter, plaintiffs) for permanent injunction as well as mandatory injunction. Along with the suit, plaintiffs filed I.A. No. 1739 of 1999 for ad interim injunction. Ex parte injunction order was granted and the same was subsequently made absolute. Alleging that injunction order has been flouted, plaintiffs moved an application under Order XXXIX Rule 2A of Code of Civil Procedure, 1908 (CPC) being I.A. No. 405A of 2004. The same is under enquiry. In the mean while, suit was coming up for trial. Defendants, therefore, filed I.A. No. 678 of 2006 praying trial Court to record common evidence in the suit as well as I.A. No. 405A of 2004. By impugned order dated 21.3.2009, trial Court dismissed application taking the view that when once the suit is concluded the Court become functus officio and it cannot take up the application for contempt.
2. Learned Counsel for petitioners relies on paragraphs 28 and 29 of the decision of Supreme Court in Tayabhai M. Bagasarwalla v. Hind Rubber Industries Pvt. Ltd. : [1997]2SCR152 and submits that trial Court would not become functus officio even after disposal of suit and, therefore, no prejudice would be caused if evidence is recorded in I.A. as well as in the suit. Per contra, learned Counsel for respondents relies on Mohd. Jamal v. Mohd. Sharfuddin (died) per L.Rs : 1998(3)ALD427 and Gyan Chand Jain v. XIII Addl. Dist. & Sessions Judge AIR 1998 All 228 and submits that in a suit for injunction or for any other purpose, when an interlocutory application is filed alleging contempt or disobedience of interlocutory order, trial Court has to decide contempt application first before taking up the suit.
3. The view of learned Junior Civil Judge that the Court would become functus officio when once the suit is concluded, is contrary to the law laid down by the Supreme Court in Tayabhai M. Bagasarwalla (supra). Therein, the Supreme Court laid down as follows.
4. It is not possible to agree with any of these submissions not only on principle but also in the light of the specific provision contained in Section 9A of Code of Civil procedure (Maharashtra Amendment). In the light of the said provision, it would not be right to say that the Civil Court had no jurisdiction to pass interim orders or interim injunction, as the case may be, pending decision on the question of jurisdiction. The orders made were within the jurisdiction of the Court and once this is so, they have to be obeyed and implemented. It is not as if the defendants are being sought to be punished for violations committed after the decision of the High Court on the question of jurisdiction of the Civil Court. Here the defendants are sought to be punished for the disobedience and violation of the order of injunction committed before the decision of the High Court in Vishanji Virji Mepani AIR 1996 Bom 367. According to Section 9-A, the Civil Court- and the High Court- did have the power to pass interim orders until that decision. If they had that power they must also have the power to enforce them. In the light of the said provision, it cannot also be held that those orders could be enforced only till the said decision but not thereafter. The said decision does not render them (the interim orders passed meanwhile) either non est or without jurisdiction. Punishing the defendants for violation of the said orders committed before the said decision (Vishanji Virji Mepani) does not amount, in any event, to enforcing them after the said decision. Only the orders are being passed now. The violations are those committed before the said decision.
5. The correct principle, therefore, is the one recognised and reiterated in Section 9-A to wit, where an objection to jurisdiction of a civil court is raised to entertain a suit and to pass any interim orders therein, the Court should decide the question of jurisdiction in the first instance but that does not mean that pending the decision on the question of jurisdiction, the Court has no jurisdiction to pass interim orders as may be called for in the facts and circumstances of the case. A mere objection to jurisdiction does not instantly disable the court from passing any interim orders. It can yet pass appropriate orders. At the same time, it should also decide the question of jurisdiction at the earliest possible time. The interim orders so passed are orders within jurisdiction when passed and effective till the Court decides that it has no jurisdiction to entertain the suit. These interim orders undoubtedly come to an end with the decision that this Court had no jurisdiction. It is open to the Court to modify these orders while holding that it has no jurisdiction to try the suit. Indeed, in certain situations, it would be its duty to modify such orders or make appropriate directions. For example, take a case, where a party has been dispossessed from the suit property by appointing a receiver or otherwise; in such a case the court should, while holding that it has no jurisdiction to entertain the suit, must put back the party in the position he was on the date of suit. But this power or obligation has nothing to do with the proposition that while in force, these orders have to be obeyed and their violation can be punished even after the question of jurisdiction is decided against the plaintiff provided the violation is committed before the decision of the Court on the question of jurisdiction.
6. From the above decision of Apex Court, following principles can be culled out. (i) Pending decision on the question of its jurisdiction to entertain suit, Civil Court has jurisdiction to pass interim orders or interim injunction, as the case may be; (ii) All the interlocutory orders passed in such circumstances are deemed within jurisdiction of the Court and have to be obeyed and implemented; and (iii) If interlocutory orders passed by Civil Court, even where its jurisdiction is challenged or doubted, are violated, Civil Court has jurisdiction to entertain cases for contempt and in appropriate cases while disposing of the suit, can modify orders even when the Court comes to conclusion that it has no jurisdiction.
7 .In Mohd. Jamal (supra), this Court has held that when contempt is alleged against party to the proceedings, unless he/she had been purged of contempt, the suit should not be heard. In Gyan Chand Jain (supra), Allahabad High Court laid down as under.
8. The controversies raised in the Suit and that in the Misc. Cases registered on the basis of the applications moved by the plaintiff under Order 39 Rule 2A CPC is entirely different. The question for determination in the Suit was as to whether the plaintiff Ram Babu Jain was entitled to a decree for injunction in his favour on the ground that he was a tenant of ground floor of House No. 35 while the question for determination in Misc. Case No. 67 of 1987 was whether the defendants had committed disobedience of an injunction order granted under Order 39 Rule (1) or (2) CPC or breach of any of the terms on which the injunction was granted or the order was made. The question to be considered in this case was whether the defendants had knowledge of the ex parte injunction order and whether they deliberately committed disobedience of the injunction order. The plaintiff did not lead any evidence in Misc. Case No. 67 of 1987. The judgment of the lower appellate Court shows that some application was moved wherein a prayer was made that all the three Misc. Cases should be heard along with the main Suit and this application was allowed on 05.1.1988. In my opinion, the mere fact that an order was passed to hear the Misc. Cases along with the main Suit would not mean that the Misc. Cases should be decided on the basis of the evidence which had been recorded in the main Suit and by the same order. A proceeding under Order 39 Rule 2A CPC initiated on the ground of disobedience or breach of injunction order, is in the nature of a criminal proceeding as the person against whom such proceeding is initiated is liable to be detained in prison if it is found that he had committed breach of injunction order. Since a punishment is imposed and a person is sent to jail, the principle on which these proceedings are decided are entirely different. Here the principle of criminal law will apply and the plaintiff will have to establish beyond any shadow of doubt that the defendants had committed disobedience or breach of the knowledge order even though he had full knowledge of the same. The burden of proving its case in such cases lies entirely on the plaintiff. The principle on which a civil suit is decided are different as here decision on the issues arising out of pleadings is taken on the basis of preponderance of evidence. Therefore, a common judgment and order deciding the main Suit as well as application under Order 39 Rule 2A CPC will not be proper.
9. The same view was expressed in Ram Shanker v. Suraj Prasad 1962 ALJ 201. In view of the discussion of brief principles from the binding precedents as above, this Court does not find any infirmity in the trial Court dismissing petitioners' application.
10. The civil revision petition is accordingly dismissed. No costs.