Judgment:
Abhilasha Kumari, J.
1. Rule. Mr. Chinmay Gandhi, learned Counsel for the respondent waives service of notice of Rule on behalf of the respondent.
2. This petition has been filed under Article 227 of the Constitution of India with a prayer to issue a writ of certiorari or an appropriate writ or order, quashing and setting aside order dated 1-8-2009 rendered by the learned District Judge, Patan in Misc. Civil Appeal No. 8 of 2004 whereby the appeal filed by the petitioner against the order of the learned Civil Judge (J.D.), Patan, dated 20-1-2004, in Regular Civil Suit No. 138 of 1992, has been dismissed.
3. Briefly stated, the facts of the case are that the petitioner (original defendant in the suit) and the respondent (original plaintiff) are real brothers. The respondent filed Regular Civil Suit No. 138 of 1992 in the trial Court against the petitioner and others, for partition of the suit land, bearing Survey Nos. 1479 and 1482, situated at village Aghar, Taluka and District, Patan, on the ground that he is entitled to 1/9th share in the said land. Along with the plaint, the respondent filed an application for grant of temporary injunction, being Exh. 5. After hearing the respective parties, the trial Court allowed the application for temporary injunction filed by the respondent vide order dated 24-4-1992, and directed that status quo in respect of the suit land be maintained till the final decision of the suit. This order came to be confirmed after bipartite hearing, by order dated 21-10-1992. The petitioner challenged this order by filing Misc. Civil Appeal No. 194 of 1992. However, the appeal of the petitioner against the order passed upon application at Exh. 5 was rejected, and the order of the trial Court directing status quo to be maintained by the parties in respect of the suit property, was confirmed.
3.1. During the proceedings of the suit, the petitioner has sold the suit property of Survey No. 1482 and 1479 to one Thakor Madarji Rudaji and Thakor Gambhirji Rudaji by way of registered sale-deed dated 16-11-2002, for sale consideration of Rs. 1,40,500/-. The respondent, (original plaintiff) therefore, filed an application at Exh. 162 before the trial Court under the provisions of Order 39, Rule 2A of the Code of Civil Procedure, stating that the petitioner has willfully disobeyed the order of injunction passed by the trial Court by selling the suit property, therefore, necessary orders be passed. The trial Court allowed the application at Exh. 162 filed by the respondent and it was found that as the petitioner has sold off the suit property during the pendency of the order of temporary injunction granted by the same Court, he has committed a breach of the terms of the said order. The trial Court directed that the petitioner should undergo civil imprisonment for a period of three months. The petitioner preferred Misc. Civil Appeal No. 8 of 2004 before the District Court, challenging the above-mentioned order. The said appeal has been dismissed and the order of the trial Court imposing three months civil imprisonment has been upheld by the lower Appellate Court, by passing the impugned order. The petitioner has further been directed to pay Rs. 2000/- as costs of the appeal to the respondent. Being aggrieved by the above-mentioned order, the petitioner has approached this Court by filing the present petition.
4. Mr. Bharat Jani, learned Counsel for the petitioner has submitted that:
(a) The impugned order of the District Court whereby the order of the trial Court imposing three months civil imprisonment upon the petitioner has been confirmed is erroneous, as the trial Court has straightaway passed an order of civil imprisonment against the petitioner, without first ordering attachment of his property. Before resorting to such harsh measures, it was incumbent upon the trial Court to have taken recourse to the option of attachment of the existing property of the petitioner but without doing so the Court has imposed such stringent punishment upon the petitioner.
(b) The suit land has been be quashed to the petitioner by his father and as the petitioner was under a bona fide belief that he has become the owner of the suit property by virtue of the Will executed in his favour, he has sold the suit property. In the circumstances, it cannot be said that he has committed breach of the order of temporary injunction.
(c) Even assuming that there is a breach of the order of injunction granted by the trial Court in the suit, the petitioner owns some other property, which is not the subject-matter of the suit, which he is ready to offer for attachment, for a period of one year.
(d) In order to show his bona fides, the petitioner is ready and willing to pay an amount of Rs. 25,000/- out of the sale proceeds obtained by him to the respondent, in lieu of the claim of the respondent for 1/9th share in the suit property.
(e) The petitioner is a Government servant and has been taken into custody with effect from 1-8-2009, immediately after passing of the impugned order. The punishment meted out to the petitioner is very harsh and would entail civil consequences of loss of reputation, and would adversely affect his services as a Government servant.
(f) The impugned order has been passed without proper exercise of discretion by the lower appellate Court and in view of the above facts, the said order may be quashed and set aside on payment of Rs. 25,000/- by the petitioner to the respondent or by attaching the other property of the petitioner, for a period of one year.
(g) That the petitioner tenders an unqualified apology to this Court, in case the Court comes to the conclusion that the petitioner has committed breach of the order of injunction granted by the trial Court, therefore, the petition may be allowed.
In support of his submissions, the learned Counsel for the petitioner has relied upon:
(1) Bichitrananda Swain v. Jatakrushna Swain : AIR 2000 Orissa 145.
(2) Samee Khan v. Bindu Khan : AIR 1998 SC 2765.
(3) Syed Abdul Razack v. Matadin Agarwal : 1994 (4) SCC 673.
5. The petition has been strongly opposed by Mr. Chinmay M. Gandhi, learned Counsel for the respondent, who has submitted that:
(a) The petitioner was very much aware of the order of injunction passed by the trial Court and he had even filed an appeal against the same, which was dismissed by the District Court. The order of the trial Court granting ex parte injunction was passed on 24-4-1992 and was confirmed after bi-partite hearing on 21-10-1992. After the passing of this order, the petitioner has knowingly sold the land by registered sale-deed dated 16-11-2002. The order dated 21-10-1992 whereby the order of status quo has been confirmed, was carried in appeal by the petitioner, but the said appeal has also been dismissed, by order dated 1-3-1994. This shows that the petitioner was very much aware of the passing of the order of status quo and has deliberately committed breach thereof, by selling the suit property by registered sale-deed, during the pendency of the said order.
(b) The petitioner has committed contempt of the order of injunction of the trial Court, and therefore, the order directing the petitioner to undergo civil imprisonment for a period of three months is perfectly legal and valid and in accordance with the provisions of Order 39, Rule 2A of the Code of Civil Procedure.
(c) The impugned order has been passed after taking into consideration the facts of the case and as the Court has exercised discretion vested in it in a proper manner and has passed the said order in accordance with the relevant provisions of law, the interference of this Court is not called for, under Article 227 of the Constitution of India, and the petition may be dismissed.
In support of the above submissions, Mr. Chinmay M. Gandhi, learned Counsel for the respondent has placed reliance upon:
(1) Kulsambibi v. Ahmed Mohmed 1984 GLH 612
(2) Radhey Shyam v. Chhabi Nath : 2009 (5) SCC 616.
6. I have heard learned Counsel for the respective parties, perused the averments made in the petition, contents of the impugned order and other documents on record.
7. One of the unfortunate aspects of this case is that both the petitioner and the respondent, are real brothers. It is an admitted position that the respondent (original plaintiff) filed the suit against the petitioner for partition of the suit property, and on the application for grant of temporary injunction, the trial Court, in the first instance, granted an ex parte injunction in favour of the respondent, by order dated 24-4-1992. This order came to be confirmed after bi-partite hearing, by order dated 21-10-1992. It is, therefore, amply clear that the petitioner was very well aware of the passing of the order of injunction, directing the parties to maintain status quo, qua the suit property, till the final decision of the suit. Not only did the petitioner have full knowledge of this order, he also challenged it in appeal, before the District Court, though unsuccessfully. During the pendency of the order of injunction, the petitioner sold the suit property by way of registered sale-deed dated 16-11-2002 for sale consideration of Rs. 1,40,500/-. Upon coming to know of the sale, the respondent filed an application at Exh. 162 before the trial Court, under the provisions of Order 39, Rule 2A of the Code of Civil Procedure. The petitioner filed a reply to this application which is on record as Annexure 'B' to the petition. This document makes interesting reading and clearly reflects the attitude and mindset of the petitioner. In Paragraph 4 of the said reply, the petitioner has categorically stated that he has not committed breach of the order of injunction passed by the trial Court. In the same breath, in Paragraph 5, the petitioner states that he has sold the suit property by registered sale-deed, and goes on to say that this does not mean that he has committed a breach of the order of status quo, as the said property is of his independent ownership, and the respondent has no right in the same.
8. As stated above, the trial Court allowed the application of the respondent and directed the petitioner to undergo civil imprisonment for a period of three months, which order has been confirmed in appeal by the lower appellate Court. In the memorandum of appeal filed by the petitioner before the lower appellate Court, the petitioner introduces a new story regarding a Will purportedly made by his father, bequeathing the suit property to him. It is stated in the said memorandum that under the said Will, the suit property is owned exclusively by the petitioner and as he has sold? his own property by way of registered sale-deed, he has not committed any breach or violation of the order of injunction.
9. While making submissions before this Court, the learned Counsel for the petitioner has tried to salvage the situation by tendering an unconditional apology on behalf of the petitioner. However, if the memorandum of the petition is perused and the averments made therein are considered, it is apparent that neither has the petitioner shown regret nor has he admitted that he has committed breach of the order of injunction in spite of the glaring facts of the case. Instead, the tone and tenor of the averments made in the petition would suggest that the attempt of the petitioner is to justify his action. It has been submitted on behalf of the petitioner that he is willing to pay a sum of Rs. 25,000/- to the respondent, towards 1/9th share in the suit property as per the claim in the suit, and is also ready to offer another property owned by him for attachment, for a period of one year.
10. The main contention on the legal aspect that has been advanced by the learned Counsel for the petitioner is that the trial Court ought not to have directed the petitioner to undergo civil imprisonment for three months, but ought to have first resorted to the option of attachment of his property, therefore the order of the trial Court is bad in law, as is the impugned order of the lower appellate Court, confirming the same. In order to test the sustainability of this submission, it would be helpful to advert to the provisions of Order 39, Rule 2A of the Civil Procedure Code. The said provision of law reads thus:
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, 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. From a bare reading of the above-quoted provision of law, there is no manner of doubt that in the case of disobedience of any injunction granted or order made under Rule 1 or 2 of Order 39, the Court granting the injunction or making the order, or the Court to which the suit or proceedings are 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. The Court, is therefore, empowered to direct the attachment of the property of the person committing the breach or to order his detention in the civil prison, or both. Whether the Court will order attachment of property or civil imprisonment, and the term of imprisonment, if so directed, would depend upon the facts and circumstances of the case. It is not incumbent upon the Court, to first attach the property and only then, after this option has been exhausted, resort to the option of directing civil imprisonment.
12. In Samee Khan v. Bindu Khan (supra), the Supreme Court has held that under the provision of Order 39, Rule 2A, in a case of disobedience or breach of injunction, the Court has power to either order detention of the disobeying party or attachment of his property and both steps can be resorted to, or one of them alone can be chosen, depending on the facts of the case. The relevant extract of the above quoted judgment is reproduced hereinbelow:
The words 'and may also' in Rule 2A cannot be interpreted in the context as denoting to a step which is permissible only as additional to attachment of property of the opposite party. If those words are interpreted like that it may lead to an anomalous situation. If the person who defies the injunction order has no property at all, the Court becomes totally powerless to deal with such a disobedient party. He would be immuned from all consequences even for any open defiance of a Court order. No interpretation shall be allowed to bring about such a sterile or anomalous situation. It is open to the Court to attach the property of the disobeying party and at the same time the Court can order him to be detained in civil prison also if the Court deems it necessary. Similarly, the Court which orders the person to be detained in civil prison can also attach the property of that person. Both steps can be resorted to or one of them alone need be chosen. It is left to the Court to decide on consideration of the fact situation in each case.' (Para 15)
13. In the light of the above legal principles, the submissions of the learned Counsel for the petitioner that the Court could not have directed the petitioner to undergo civil imprisonment for three months without first resorting to the option of ordering the attachment of his property, cannot be accepted. Great stress has been laid by the learned Counsel for the petitioner on the aspect that by directing the petitioner to undergo the maximum term of civil imprisonment, the trial Court has inflicted extremely harsh punishment on him, and this will adversely affect his career as he is a Government servant. In the present case, the petitioner has admittedly sold the suit property during the pendency of the order of injunction.
14. It is being suggested by the learned Counsel for the petitioner before the Court that the petitioner is ready to offer another property for attachment for a period of one year, and pay Rs. 25000/- to the respondent. This suggestion was not made either before the trial Court, or before the first appellate Court. On the contrary, the petitioner was throughout justifying his contumacious act of selling the property by stating that it has been bequeathed to him by his father by way of a Will and he has sold it as it is exclusively owned by him. He has continuously asserted before the Courts below that in selling the property he has not committed breach of the order of injunction, meaning thereby, that the petitioner has full knowledge of the injunction passed against him and has sold the property during its pendency. No apology worth the name has been offered before the trial Court which passed the order, or the lower appellate Court. In the circumstances, there is no justifiable reason for this Court to accept the suggestion put forth on behalf of the petitioner, at this stage.
15. The learned Counsel for the petitioner has relied upon Syed Abdul Razack v. Matadin Agarwal (supra), wherein it is held by the Supreme Court that power to order detention in civil prison, includes the power to recall the order. There is no doubt about this proposition of law. However, the said judgment will not apply to the facts of the present case. In that case, the appellant therein was ordered to be detained in civil prison for three months, as the learned single Judge took the view that he has evaded service of the injunction and indulged in a hide-and-seek game, and deserved to be dealt with severely. The appellant showed cause against the action ordered, pleading that he was not aware of the issuance of injunction, and that the 'refusal' recorded by the postman on the registered letter sent to him, was wrong. The learned Single Judge, satisfied with the explanation of the appellant therein, ordered recall of the order. The order of the learned Single Judge was upset by the Division Bench of the High Court in a Letters Patent Appeal. It is in this context that the Supreme Court held that the power to pass orders under the provisions of Order 39, Rule 2A includes the power of recall of the said order. The facts of that case are on a totally different footing than those obtaining in the present case. Here, the situation is that the petitioner was not only aware of the passing of the order of injunction but had also filed an appeal against the same, which was dismissed. During the subsistence of the order of injunction, the petitioner sold the suit property by registered sale-deed, and this aspect is not denied by him, at any stage. On the contrary, the petitioner has made an attempt to justify his action. The ratio of the above quoted judgment will not, therefore, be of any help to the petitioner.
16. In Bichitrananda Swain v. Jatakrushna Swain (supra), the High Court had set aside the order of the trial Court directing imprisonment of the petitioner for a period of two months, on the ground that it appears to be grossly excessive and it has, instead directed that the property shall remain under attachment for a period of six months. In that case, the order of injunction that had been issued directed the petitioner not to carry on further construction of the house by encroaching upon the suit land, but the said order was violated, as the construction was carried on and completed. However, the question as to whether the disputed structure appertains to the plaintiff's land or the defendant's land, was held to be a matter to be decided in the trial, after recording of evidence. The facts of this case also, are totally different from the present case and this judgment cannot be successfully pressed into service, in the factual scenario of the present case.
17. In the considered opinion of this Court, the impugned order of the District Court, confirming the order of the trial Court where by the petitioner has been directed to undergo civil imprisonment for three months, does not suffer from any perversity or illegality, so as to warrant interference. The petitioner is not an illiterate person and it is evident from the record that the contumacious act has been committed by him, willfully and deliberately. The petitioner has not expressed even a modicum of regret before the trial Court or the lower Appellate Court, therefore, the unconditional apology tendered by the learned Counsel for the petitioner before this Court appears to be an afterthought and does not mitigate the consequences of the wilful breach committed by the petitioner.
18. Regarding the aspect of harshness of the punishment ordered by the trial Court, as confirmed by the lower appellate Court, the same has to be viewed in the light of the peculiar facts obtaining in the present case. The material on record leaves no manner of doubt regarding the fact that the petitioner has committed a deliberate act of breach of the order of injunction, with full knowledge of the said order. The petitioner is not an illiterate person, but is stated to be a Government servant. In a case such as the present one, to interfere with concurrent findings of fact based upon material on record would send a wrong signal that orders of subordinate Courts can be flouted with impunity and a contumacious person can get away with a wilful breach or violation thereof merely by offering an unconditional apology as an afterthought, which was never offered to the Court passing the order that has been violated. Such a course would undermine the authority of subordinate Courts which lay the foundation for administration of justice in accordance with law and would result in undermining the very rule of law. In the view of this Court, the order of the trial Court directing civil imprisonment for three months has been passed in accordance with the provisions of law and does not deserve to be interfered with on the ground of misplaced sympathy.
19. In Kulsambibi v. Ahmed Mohmed (supra), the Court was faced with the similar situation where the City Civil Court had directed that all the appellants who were found to have committed breach of the order of injunction passed by that Court, be detained in civil prison for a period of one month. The Court declined to accept the unconditional apology tendered before it or to interfere in the order inflicting punishment on the ground that:
Breach of injunction would become normal if on tendering unconditional apology every man is required to be discharged. They would consider it to be a normal matter. The litigants would go away with feelings that the orders of the Court need not be obeyed, when it comes to the issuance of the notice because of some breach of the order of the Court, tender unconditional apology and walk away. The outside world will know nothing about it. Perhaps they will know that he is not punished at all, and that breach is never considered a breach by the Court. It is necessary that every litigant should know that the orders of the Court are required to be obeyed. Unless this is known the rule of law can never prevail.
20. It is a settled position of law that Article 227 of the Constitution of India vests the High Court with the power of supervision over subordinate Courts, which power has to be exercised cautiously. The power of superintendence is not to be used to correct mistakes of fact or law or to reappreciate and reevaluate evidence on record, so as to upset concurrent findings of fact. In B.K. Muniraju v. State of Karnataka and Ors. : 2008 (4) SCC 451, the Supreme Court has heldas under:
24. It is clear that whether it is a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby. It is also clear that the High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a Court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
21. No grounds as mentioned in the above-quoted judgment are made out, in the present case, warranting the interference of this Court.
22. As a result of the above discussion, and for reasons stated hereinabove, the petition deserves to be dismissed. It is, accordingly, dismissed. Rule is discharged.