Margao Municipal Council Through Its Chief Officer, Shri P.W. Rane Sardessai and Another Vs. Shri Pandurang Kusta Alve and Others - Court Judgment

Excerpt:
civil - injunction - order 39 rule 2-a of code of civil procedure, 1908 and section 2 of contempt of court act, 1971 - temporary injunction granted by trial court - petition alleging that contrary to injunction order shops were demolished by petitioners - petitioner never gave any categorical statement that they would refrain from removing shops - perusal of order discloses that it does not contain any specific directions to petitioners - court cannot grant injunction simply because it thinks convenient to do so - injunction order vague - proceedings under order 39 rule 2-a initiated on account of disobedience of injunction order liable to be quashed. - section 3: [s.b. mhase, d.s. bhosale & a.s. oka, jj] offences of atrocities - complaint under held, merely because the caste of the accused is not mentioned in the fir stating whether he belongs to scheduled caste or scheduled tribe, it cannot be a ground for quashing the complaint. after ascertaining the facts during he course of investigation it is always open to the investigating officer to record tht the accused either belongs to or does not belongs to schedule caste or scheduled tribe. after final opinion is formed, it is open to the court to either accept the same or take cognizance. even if the charge sheet is filed at the time of consideration of the charge, it si open to the accused to bring to the notice of the court that the materials do not show that the accused does not belong to scheduled caste or scheduled tribe. even if charge is framed at the time of trial materials can be placed to show that the accused either belongs to or does not belong to scheduled caste or scheduled tribe. even if charge is frame d at the time of trial materials can be placed to show that the accused either belongs to or does not belong to scheduled caste or scheduled tribe. it is not a requirement und4r section 3 of the atrocities act that the complainant should disclose the caste of the accused in the complaint. in other words, if there is no mention of the caste of the accused in the fir, that cannot be a ground for either not registering the offence under section 3 of the act or for quashing such complaint - it is now well established that a party cannot be committed for contempt on the ground that upon one of the possible constructions, a breach of the undertaking given to the court had been committed. rani sonabati kumari, reported in [1961]1scr728 ,the apex court had clearly held that the question whether a party has understood an order in particular manner and has conducted himself in accordance with such a construction is primarily one of fact, and where the materials before the court do not support such a state of affairs, the court cannot attribute an innocent intention based on presumptions for the only reason, that ingenuity of counsel can discover equivocation in the order which is the subject of enforcement. as already seen above, the materials on record are absolutely insufficient to draw even an inference regarding the knowledge of the order as well as of the existence of the order itself. soni chandubhai gordhanbhai and others, reported in [1976]3scr786 ,it was a case of deliberate violation of an undertaking to the court and in that context it was held that there was nothing in the conditions of the undertaking to imply that it was merely a consent order passed upon an agreement between the parties to which the order of the court had been superadded and it was clearly a case of express undertaking to the court incorporated in the order. on the contrary, it clearly rules out any scope for invoking powers under order 39, rule, 2-a of c. the apex court therein has clearly held that a mere consent order will not amount to an undertaking as such. while the appeal was pending, several other interim orders were passed by the civil court as well as by the high court. clearly, the decision is of no help to the respondents in the facts of the case in hand. this is a well established proposition of law reiterated by the calcutta high court. 18. the fall-out of the above discussion is that the entire proceedings under order 39, rule 2-a initiated against the petitioners on account of alleged disobedience of the order of injunction stated to have been passed on 6-3-73 are to be quashed being ab initio void and not maintainable and for the same reason the order passed therein by the trial court as well as the impugned order of the lower appellate court are also to be quashed and set aside. the impugned order as well as that of the trial court giving directions to the petitioners to re-erect the suit shops and to restore the same as the same were before the demolition thereof, are hereby quashed and set aside.orderr.m.s. khandeparkar, j.1. this revision arises from the order dated 29th december, 1998 passed the addl. district judge, margao in misc. civil appeal no. 31/98 whereby by the lower appellate court has dismissed the said appeal filed by the petitioners herein. the said appeal was against the order dated 29th april, 1998 passed by the civil judge, junior division, margao in civil misc. appln. no. 247/97/e and civil misc. appln. no. 362/ 97/e in regular civil suit no. 49/1973/e, whereby the trial court in exercise of the powers under order 39, rule 2-a of c.p.c. had directed the petitioners to re-erect the suit shops and to restore them in the condition in which the same were existing prior to the demolition on 22nd july, 1997 within thirty days of the order, failing which the petitioner no. 2 has been ordered to be detained in prison for a period of one month.2. the case of the plaintiffs/respondents is that the trial court had granted temporary injunction by the order dated 6-3-1973 on the basis of the undertaking given by the petitioners not to remove or interfere with the suit shops till the disposal of the said suit; however, on 22-7-97 the petitioners all of a sudden accompanied by the mamlatdar, policemen and labourers, demolished the suit shops without any prior notice. on the other hand, it is the case of the petitioners that neither the petitioner no. 2 came across any such order of temporary injunction, nor the respondent could produce any copy of any order and since the suit shops were erected on the municipal drain, in exercise of their powers and duties under the municipalities act and in view of the direction issued by this court by its order dated 4-6-97 in writ petition no. 148/97, the suit shops were removed.3. the trial court held that the petitioners had knowledge of the order dated 6-3-73 and inspite of that, they disobeyed the said order and that the order dated 4-6-97 in writ petition no. 148/97 passed by this court does not apply to the matters which are sub judice and therefore the remedy would lie in undoing the wrong of restoring the status quo ante and directed the petitioners to re-erect the suit shops and restore the same as existed prior to the demolition on 22-7-1997 within thirty days from the date of the order.4. the lower appellate court while confirming the order by the trial court, held that the respondents have proved that the trial court had granted temporary injunction on 6-3-73 and the petitioners have wilfully disobeyed the said order and the action on the part of the petitioners being illegal, the same cannot be protected. the lower appellate court has also held that the fate of the suit depends upon the existence of the suit shops and that merely because the said order dated 6-3-73 states that the injunction order is confirmed till the decision of the suit though there was no ex-parte order passed earlier, it cannot be said that no order of injunction was passed.5. the order which is stated to have been disobeyed by the petitioners by demolishing the suit shops, is one recorded in the roznama sheet of 6th march, 1973 in the records of r.c.s. no. 49/73 and it reads thus :---'6-3-73 : called on today before me. advocate of both the parties are present. advocate for the defendant states that he has no objection in granting injunction. order passed. injunction order is confirmed till the decision of the suit. suit is adjourned for written statement on 29-3-1973.'6. though it was strenuously argued by smt. a. a. agni, the learned advocate on behalf of the respondents that the said order was passed on the basis of an undertaking given by the petitioners that they shall not remove or interfere in any manner with the suit shops of the respondents till the disposal of the suit, neither the records placed before me disclose nor the respondents have been able to point out any such undertaking by the petitioners or any one on their behalf. all that the learned advocate for the respondents could point out is the said order itself wherein it refers to 'no objection in granting injunction' by the advocate for the petitioners. certainly 'no objection in granting injunction' can by no stretch of imagination would tantamount to giving an undertaking as such by or on behalf of the petitioners to the effect that they would not interfere with the suit shops. it would only mean that the concerned advocate had informed the trial court that the petitioners would submit to the order of injunction which the trial court may pass in the matter. there was no categorical and specific statement on behalf of the petitioners before the trial court that the petitioners would either refrain themselves from removing the suit shops or that they would not interfere with the suit shops till the disposal of the suit. on the contrary, the trial court was requested to pass an order in relation to the grant of injunction and this is apparent from the manner in which 'no objection in granting injunction' was given by the learned advocate appearing for the petitioners. the records therefore disclose that there was no undertaking by the petitioners either of the nature sought to be contended by the respondents or of any other type or of any other nature in relation to the suit shops. it is now well established that a party cannot be committed for contempt on the ground that upon one of the possible constructions, a breach of the undertaking given to the court had been committed. for the purpose of relief of that type, the undertaking must be clear beyond all questions and doubts. in order that an undertaking could be enforceable or its breach could be made actionable, its terms must be filed in the court and proved with precision and clarity and reasonable certainty. besides the breach of undertaking must be wilful and not unintentional.7. the order which is stated to be violated and quoted above specifically states that 'advocate for the defendant states that he has no objection in granting injunction. order passed. injunction order is confirmed till the decision of the suit'. what is the nature of injunction granted? what is its scope? against whom it is granted? for what purpose it has been granted? on what basis it has been granted? what is the cause for grant of injunction? the order is totally silent about all these and many other relevant points.8. it is to be always borne in mind that an injunction is a judicial process whereby a party is required to do or refrain from doing any particular act. it is a method adopted by the court for producing some result by exercise of its powers of administration of justice. it does not confer an arbitrary or unregulated discretion upon the court. it does not mean that the court can grant an injunction simply because it thinks it convenient to do so. the court can grant injunction for protection of rights or prevention of injury according to the legal principles. court is not supposed to issue an injunction in a case in which there is no right in favour of the party applying for it or no legal obligation or liability or duty cast upon the other side against whom the relief is claimed, either in law or in equity. the first principle of law of injunction is that it is not available to restrain actionable wrongs for which damages are proper remedy. neither it is granted where the case is one not of legal injury but more of inconvenience, nor in rival matters, nor when it is not required,the plaintiff having alternative efficacious remedy or the plaintiff has the remedy in his own hands. it is also to be noted that the court in exercise of its powers cannot restrain the public authorities from performing their lawful public duties and that too on mere asking or merely because there is no formidable opposition from such authorities either because of their promptness for lethargy and carelessness towards their duties or even then unscrupulous officers act in collusion with the private parties by making a farce of surrendering to the order of injunction of the court. in such cases, the courts are required to be more vigilant and alert and guard itself from being taken for granted or a trick being attempted to be played upon it by such dishonest elements from the society.9. an injunction which is a judicial process has necessarily to be by proper exercise of its jurisdiction by the court. a proper exercise of jurisdiction would certainty mean the application of mind to the facts involved and the law applicable thereto and not a mechanical process of scribbling few words on a sheet of paper, be it a roznama or otherwise. it should necessarily be on the basis of rights of the parties and the law applicable to it and not merely because the party fancies to be armed with such an injunctive order against the other party who does not mind to gift the plaintiff with such injunctive order against itself. it cannot be an order just for somebody's pleasure. bearing in mind the same, if one peruses the order dated 6-3-73 it is ex-facie apparent that the same does not disclose any adjudication of the matter by the court nor it discloses any specific direction to the petitioners and for that matter to any other person. it simply states that the order was passed and injunction order was confirmed. moreover, the records disclose and it is an undisputed fact that no ex-parte order of injunction was ever granted in the said suit by the trial court and therefore there was no occasion for confirmation of any order of injunction passed ex-parte. it is also a matter of record that the trial court had never passed any other order on 6-3-73 apart from the one entered into the roznama sheet of the said day. in fact, it is a mere endorsement in the roznama sheet regarding the proceedings in the court. the roznama sheet of a suit or any miscellaneous proceedings is primarily meant to disclose the happenings in the court in a particular matter on a particular date. of course, nothing forbids the court from recording any order of injunction in the roznama sheet; but it has to be an order of injunction and not merely a narration of having passed an order. a narration of the fact of having passed an order does not amount to an order of injunction. the act of passing an order is one thing and the order of injunction itself is another thing.10. it is seen that the entire proceedings under order 39, rule 2-a of the code of civil procedure were initiated on the premise that there was an order dated 6-3-73 and that the same was disobeyed by the petitioners. as already seen above there was no order of temporary injunction passed against the petitioners in the case in hand on 6-3-73 and mere narration of the fact of having passed the order of injunction does not tantamount to the order of injunction itself. having proceeded in the matter without considering this basic aspect of the case, both the courts below have acted with material irregularity and in illegal exercise of its jurisdiction.11. it was sought to be argued that from 1973 till 1998, the petitioners did not proceed to demolish the suit shops. if there was no order of injunction orthat the petitioners had no knowledge of any such order of injunction, there was no reason for the petitioners not to take any action in respect of the suit shops for all these years. the contention is devoid of substance. the fact whether there was any order of injunction passed by the court or not is to be established by exhibiting such order on record. the existence of an order of the court cannot be established merely by referring to the conduct of the parties. the respondents cannot reap bonus from the negligence on the part of the petitioners and their officers in taking timely action in the matter. the decisions sought to be relied upon by the learned advocate for the respondents are of no help to the respondents in the matter.12. in the state of bihar v. rani sonabati kumari, reported in : [1961]1scr728 , the apex court had clearly held that the question whether a party has understood an order in particular manner and has conducted himself in accordance with such a construction is primarily one of fact, and where the materials before the court do not support such a state of affairs, the court cannot attribute an innocent intention based on presumptions for the only reason, that ingenuity of counsel can discover equivocation in the order which is the subject of enforcement. however, before placing reliance upon this judgment, it was necessary for the respondents to point out that in fact an order which can be understood to be directing the petitioners not to demolish the suit shops was actually passed by the trial court and it was to the knowledge of the petitioners. as already seen above, the materials on record are absolutely insufficient to draw even an inference regarding the knowledge of the order as well as of the existence of the order itself.13. in chhaganbhai norsinbhai v. soni chandubhai gordhanbhai and others, reported in : [1976]3scr786 , it was a case of deliberate violation of an undertaking to the court and in that context it was held that there was nothing in the conditions of the undertaking to imply that it was merely a consent order passed upon an agreement between the parties to which the order of the court had been superadded and it was clearly a case of express undertaking to the court incorporated in the order. as already seen above, the case in hand there was no undertaking either in writing or oral and either not to demolish the suit shops or not to interfere therein. in the absence of express undertaking, the decision of the apex court in this case has no application to the case in hand. on the contrary, it clearly rules out any scope for invoking powers under order 39, rule, 2-a of c.p.c. for demolition of the suit shops by the petitioners. the apex court therein has clearly held that a mere consent order will not amount to an undertaking as such.14. in tayabbhai m. bagasarwalla and another v. hind rubber industries pvt. ltd., reported in : [1997]2scr152 , the matter was contested before the trial court and the injunction was granted after rejecting the objections sought to be raised by the defendants. an appeal was filed by the defendants against the said order. while the appeal was pending, several other interim orders were passed by the civil court as well as by the high court. ultimately, the high court found that the civil court had no jurisdiction to entertain the suit. all these proceedings took about six years. meanwhile, there was non-compliance of the order of injunction. adefence was sought to be raised that in view of final decision of the high court about lack of jurisdiction to entertain the suit, mere non-compliance of the order passed by the civil court could not be considered as violation of the order passed by the civil court and therefore there was no scope for proceedings under order 39, rule 2-a of c.p.c. rejecting the contention, the apex court held that even in a case where a suit is filed in the wrong court knowingly or with a view to snatch an interim order, in such a case if the order of injunction is passed, the defendant cannot escape the consequences for its disobedience. clearly, the decision is of no help to the respondents in the facts of the case in hand.15. in sujit pal v. prabir kumar sun and others, reported in : air1986cal220 , the plaintiff therein had filed a suit for declaration of his tenancy and for permanent injunction restraining the defendants from interfering with the possession of the premises. an interim injunction was granted restraining the defendants from interfering with the possession of the plaintiff. the defendant forcibly dispossessed the plaintiff and took possession thereof in utter violation of the order of interim injunction. it was held that the court could grant temporary mandatory injunction under section 151 by directing the police to restore possession to the plaintiff, the injury being grave and serious, ends of justice demanded that court should grant immediate relief. it was also held that no technicality can prevent the court from doing justice in exercise of its inherent power. order 39, rule 2-a lays down a punitive measure for the purpose of compelling a party to comply with the order of injunction. the process as contemplated by the said provision may or may not be ultimately effective but, in any event, the procedure laid down in order 39, rule 2-a is incapable of granting an immediate relief to a party who has been forcibly dispossessed in violation of an order of injunction. in such a case the court is not powerless to grant relief to the aggrieved party in exercise of its inherent power. the very object for which order 39, rule 2-a has been enacted could be fulfilled by the grant of a temporary mandatory injunction and restoration of possession of the aggrieved party. the inherent power of the court as recognised in section 151 of the code is in addition to the power conferred on the court under the provisions of the code. all that the court is concerned is to prevent abuse of the process of court and to do justice by immediately intervening under circumstances which require such intervention by the court. this is a well established proposition of law reiterated by the calcutta high court. however, the fact remains that the same is of no help to the respondents in the case in hand where the actual existence of the order itself is not proved and therefore question of violation thereof does not arise.16. in jai mangla harijan kalyan samiti v. state of orissa and others, reported in : [1997]2scr623 , the apex court has held that the high court had ordered the authorities to locate and remove all the encroachments inside the hospital campus and if necessary with the help of the police. however, taking advantage of the said order, action was taken against those having tenements outside the hospital campus. in those circumstances, it was held that such persons can approach the high court in order to pass an appropriate order in accordance with law. the decision is absolutely of no help to the respondents in the case in hand.17. it is also a matter of record that this court by its order dated 4-6-97 passed in writ petition no. 148/97 had issued certain directions to the petitioners and other municipalities in goa. the case of the petitioners was that they had acted bona fide in exercise of their duties under the municipalities act and keeping in view the said order of this court. it is also the case of the petitioners that the suit shops were situated on the municipal drain. the defence of bona fide exercise of the duties by the petitioners was rejected by the courts below without any appreciation of relevant materials and by total non-application of mind to the point in issue and in complete disregard to the basic aspect of the case. the findings in that regard are totally arbitrary and cannot be sustained. merely because the fate of the suit would depend upon the existence of the suit shops, that by itself, cannot be made the sole ground to presume that there was an order of injunction against the petitioners and that the petitioners have disobeyed the same. carelessness and/ or negligence on the part of the petitioners to take prompt action cannot be interpreted to mean that there was an order restraining the petitioners from removing the suit shops even though the same were in violation of the municipal act and rules made thereunder or against the directions issued by this court. in any case, if the suit is pending the rights of the parties would be decided by the court on the basis of the evidence to be produced by the parties. it cannot be said that the parties are without remedy.18. the fall-out of the above discussion is that the entire proceedings under order 39, rule 2-a initiated against the petitioners on account of alleged disobedience of the order of injunction stated to have been passed on 6-3-73 are to be quashed being ab initio void and not maintainable and for the same reason the order passed therein by the trial court as well as the impugned order of the lower appellate court are also to be quashed and set aside.19. the petition therefore succeeds. the impugned order as well as that of the trial court giving directions to the petitioners to re-erect the suit shops and to restore the same as the same were before the demolition thereof, are hereby quashed and set aside. the proceedings under order 39, rule 2-a of c.p.c. against the petitioners in relation to the order dated 6-3-73 are hereby quashed. rule is made absolute in the above terms with no order as to costs.20. petition succeeds.

Judgment:
ORDER

R.M.S. Khandeparkar, J.

1. This revision arises from the Order dated 29th December, 1998 passed the Addl. District Judge, Margao in Misc. Civil Appeal No. 31/98 whereby by the lower Appellate Court has dismissed the said appeal filed by the petitioners herein. The said appeal was against the order dated 29th April, 1998 passed by the Civil Judge, Junior Division, Margao in Civil Misc. Appln. No. 247/97/E and Civil Misc. Appln. No. 362/ 97/E in Regular Civil Suit No. 49/1973/E, whereby the trial Court in exercise of the powers under Order 39, Rule 2-A of C.P.C. had directed the petitioners to re-erect the suit shops and to restore them in the condition in which the same were existing prior to the demolition on 22nd July, 1997 within thirty days of the order, failing which the petitioner No. 2 has been ordered to be detained in prison for a period of one month.

2. The case of the plaintiffs/respondents is that the trial Court had granted temporary injunction by the order dated 6-3-1973 on the basis of the undertaking given by the petitioners not to remove or interfere with the suit shops till the disposal of the said suit; however, on 22-7-97 the petitioners all of a sudden accompanied by the Mamlatdar, Policemen and labourers, demolished the suit shops without any prior notice. On the other hand, it is the case of the petitioners that neither the petitioner No. 2 came across any such order of temporary injunction, nor the respondent could produce any copy of any order and since the suit shops were erected on the Municipal drain, in exercise of their powers and duties under the Municipalities Act and in view of the direction issued by this Court by its Order dated 4-6-97 in Writ Petition No. 148/97, the suit shops were removed.

3. The trial Court held that the petitioners had knowledge of the Order dated 6-3-73 and inspite of that, they disobeyed the said Order and that the Order dated 4-6-97 in Writ Petition No. 148/97 passed by this Court does not apply to the matters which are sub judice and therefore the remedy would lie in undoing the wrong of restoring the status quo ante and directed the petitioners to re-erect the suit shops and restore the same as existed prior to the demolition on 22-7-1997 within thirty days from the date of the order.

4. The lower Appellate Court while confirming the order by the trial Court, held that the respondents have proved that the trial Court had granted temporary injunction on 6-3-73 and the petitioners have wilfully disobeyed the said order and the action on the part of the petitioners being illegal, the same cannot be protected. The lower Appellate Court has also held that the fate of the suit depends upon the existence of the suit shops and that merely because the said order dated 6-3-73 states that the injunction order is confirmed till the decision of the suit though there was no ex-parte order passed earlier, it cannot be said that no order of injunction was passed.

5. The order which is stated to have been disobeyed by the petitioners by demolishing the suit shops, is one recorded in the roznama sheet of 6th March, 1973 in the records of R.C.S. No. 49/73 and it reads thus :---

'6-3-73 :

Called on today before me.

Advocate of both the parties are present.

Advocate for the defendant states that he has no objection in granting injunction. Order passed. Injunction order is confirmed till the decision of the suit. Suit is adjourned for written statement on 29-3-1973.'

6. Though it was strenuously argued by Smt. A. A. Agni, the learned Advocate on behalf of the respondents that the said order was passed on the basis of an undertaking given by the petitioners that they shall not remove or interfere in any manner with the suit shops of the respondents till the disposal of the suit, neither the records placed before me disclose nor the respondents have been able to point out any such undertaking by the petitioners or any one on their behalf. All that the learned Advocate for the respondents could point out is the said order itself wherein it refers to 'no objection in granting injunction' by the Advocate for the petitioners. Certainly 'no objection in granting injunction' can by no stretch of imagination would tantamount to giving an undertaking as such by or on behalf of the petitioners to the effect that they would not interfere with the suit shops. It would only mean that the concerned Advocate had informed the trial Court that the petitioners would submit to the order of injunction which the trial Court may pass in the matter. There was no categorical and specific statement on behalf of the petitioners before the trial Court that the petitioners would either refrain themselves from removing the suit shops or that they would not interfere with the suit shops till the disposal of the suit. On the contrary, the trial Court was requested to pass an order in relation to the grant of injunction and this is apparent from the manner in which 'no objection in granting injunction' was given by the learned Advocate appearing for the petitioners. The records therefore disclose that there was no undertaking by the petitioners either of the nature sought to be contended by the respondents or of any other type or of any other nature in relation to the suit shops. It is now well established that a party cannot be committed for contempt on the ground that upon one of the possible constructions, a breach of the undertaking given to the Court had been committed. For the purpose of relief of that type, the undertaking must be clear beyond all questions and doubts. In order that an undertaking could be enforceable or its breach could be made actionable, its terms must be filed in the Court and proved with precision and clarity and reasonable certainty. Besides the breach of undertaking must be wilful and not unintentional.

7. The order which is stated to be violated and quoted above specifically states that 'Advocate for the defendant states that he has no objection in granting injunction. Order passed. Injunction order is confirmed till the decision of the suit'. What is the nature of injunction granted? What is its scope? Against whom it is granted? For what purpose it has been granted? On what basis it has been granted? What is the cause for grant of injunction? The order is totally silent about all these and many other relevant points.

8. It is to be always borne in mind that an injunction is a judicial process whereby a party is required to do or refrain from doing any particular act. It is a method adopted by the Court for producing some result by exercise of its powers of administration of justice. It does not confer an arbitrary or unregulated discretion upon the Court. It does not mean that the Court can grant an injunction simply because it thinks it convenient to do so. The Court can grant injunction for protection of rights or prevention of injury according to the legal principles. Court is not supposed to issue an injunction in a case in which there is no right in favour of the party applying for it or no legal obligation or liability or duty cast upon the other side against whom the relief is claimed, either in law or in equity. The first principle of law of injunction is that it is not available to restrain actionable wrongs for which damages are proper remedy. Neither it is granted where the case is one not of legal injury but more of inconvenience, nor in rival matters, nor when it is not required,the plaintiff having alternative efficacious remedy or the plaintiff has the remedy in his own hands. It is also to be noted that the Court in exercise of its powers cannot restrain the public authorities from performing their lawful public duties and that too on mere asking or merely because there is no formidable opposition from such authorities either because of their promptness for lethargy and carelessness towards their duties or even then unscrupulous officers act in collusion with the private parties by making a farce of surrendering to the order of injunction of the Court. In such cases, the courts are required to be more vigilant and alert and guard itself from being taken for granted or a trick being attempted to be played upon it by such dishonest elements from the Society.

9. An injunction which is a judicial process has necessarily to be by proper exercise of its jurisdiction by the Court. A proper exercise of jurisdiction would certainty mean the application of mind to the facts involved and the law applicable thereto and not a mechanical process of scribbling few words on a sheet of paper, be it a roznama or otherwise. It should necessarily be on the basis of rights of the parties and the law applicable to it and not merely because the party fancies to be armed with such an injunctive order against the other party who does not mind to gift the plaintiff with such injunctive order against itself. It cannot be an order just for somebody's pleasure. Bearing in mind the same, if one peruses the order dated 6-3-73 it is ex-facie apparent that the same does not disclose any adjudication of the matter by the Court nor it discloses any specific direction to the petitioners and for that matter to any other person. It simply states that the order was passed and injunction order was confirmed. Moreover, the records disclose and it is an undisputed fact that no ex-parte order of injunction was ever granted in the said suit by the trial Court and therefore there was no occasion for confirmation of any order of injunction passed ex-parte. It is also a matter of record that the trial Court had never passed any other order on 6-3-73 apart from the one entered into the roznama sheet of the said day. In fact, it is a mere endorsement in the roznama sheet regarding the proceedings in the Court. The roznama sheet of a suit or any miscellaneous proceedings is primarily meant to disclose the happenings in the Court in a particular matter on a particular date. Of course, nothing forbids the Court from recording any order of injunction in the roznama sheet; but it has to be an order of injunction and not merely a narration of having passed an order. A narration of the fact of having passed an order does not amount to an order of injunction. The act of passing an order is one thing and the order of injunction itself is another thing.

10. It is seen that the entire proceedings under Order 39, Rule 2-A of the Code of Civil Procedure were initiated on the premise that there was an order dated 6-3-73 and that the same was disobeyed by the petitioners. As already seen above there was no order of temporary injunction passed against the petitioners in the case in hand on 6-3-73 and mere narration of the fact of having passed the order of injunction does not tantamount to the order of injunction itself. Having proceeded in the matter without considering this basic aspect of the case, both the courts below have acted with material irregularity and in illegal exercise of its jurisdiction.

11. It was sought to be argued that from 1973 till 1998, the petitioners did not proceed to demolish the suit shops. If there was no order of injunction orthat the petitioners had no knowledge of any such order of injunction, there was no reason for the petitioners not to take any action in respect of the suit shops for all these years. The contention is devoid of substance. The fact whether there was any order of injunction passed by the Court or not is to be established by exhibiting such order on record. The existence of an order of the Court cannot be established merely by referring to the conduct of the parties. The respondents cannot reap bonus from the negligence on the part of the petitioners and their officers in taking timely action in the matter. The decisions sought to be relied upon by the learned Advocate for the respondents are of no help to the respondents in the matter.

12. In The State of Bihar v. Rani Sonabati Kumari, reported in : [1961]1SCR728 , the Apex Court had clearly held that the question whether a party has understood an order in particular manner and has conducted himself in accordance with such a construction is primarily one of fact, and where the materials before the Court do not support such a state of affairs, the Court cannot attribute an innocent intention based on presumptions for the only reason, that ingenuity of Counsel can discover equivocation in the order which is the subject of enforcement. However, before placing reliance upon this judgment, it was necessary for the respondents to point out that in fact an order which can be understood to be directing the petitioners not to demolish the suit shops was actually passed by the trial Court and it was to the knowledge of the petitioners. As already seen above, the materials on record are absolutely insufficient to draw even an inference regarding the knowledge of the order as well as of the existence of the order itself.

13. In Chhaganbhai Norsinbhai v. Soni Chandubhai Gordhanbhai and others, reported in : [1976]3SCR786 , it was a case of deliberate violation of an undertaking to the Court and in that context it was held that there was nothing in the conditions of the undertaking to imply that it was merely a consent order passed upon an agreement between the parties to which the order of the Court had been superadded and it was clearly a case of express undertaking to the Court incorporated in the order. As already seen above, the case in hand there was no undertaking either in writing or oral and either not to demolish the suit shops or not to interfere therein. In the absence of express undertaking, the decision of the Apex Court in this case has no application to the case in hand. On the contrary, it clearly rules out any scope for invoking powers under Order 39, Rule, 2-A of C.P.C. for demolition of the suit shops by the petitioners. The Apex Court therein has clearly held that a mere consent order will not amount to an undertaking as such.

14. In Tayabbhai M. Bagasarwalla and another v. Hind Rubber Industries Pvt. Ltd., reported in : [1997]2SCR152 , the matter was contested before the trial Court and the injunction was granted after rejecting the objections sought to be raised by the defendants. An appeal was filed by the defendants against the said order. While the appeal was pending, several other interim orders were passed by the Civil Court as well as by the High Court. Ultimately, the High Court found that the Civil Court had no jurisdiction to entertain the suit. All these proceedings took about six years. Meanwhile, there was non-compliance of the order of injunction. Adefence was sought to be raised that in view of final decision of the High Court about lack of jurisdiction to entertain the suit, mere non-compliance of the order passed by the Civil Court could not be considered as violation of the order passed by the Civil Court and therefore there was no scope for proceedings under Order 39, Rule 2-A of C.P.C. Rejecting the contention, the Apex Court held that even in a case where a suit is filed in the wrong Court knowingly or with a view to snatch an interim order, in such a case if the order of injunction is passed, the defendant cannot escape the consequences for its disobedience. Clearly, the decision is of no help to the respondents in the facts of the case in hand.

15. In Sujit Pal v. Prabir Kumar Sun and others, reported in : AIR1986Cal220 , the plaintiff therein had filed a suit for declaration of his tenancy and for permanent injunction restraining the defendants from interfering with the possession of the premises. An interim injunction was granted restraining the defendants from interfering with the possession of the plaintiff. The defendant forcibly dispossessed the plaintiff and took possession thereof in utter violation of the order of interim injunction. It was held that the Court could grant temporary mandatory injunction under section 151 by directing the police to restore possession to the plaintiff, the injury being grave and serious, ends of justice demanded that Court should grant immediate relief. It was also held that no technicality can prevent the Court from doing justice in exercise of its inherent power. Order 39, Rule 2-A lays down a punitive measure for the purpose of compelling a party to comply with the order of injunction. The process as contemplated by the said provision may or may not be ultimately effective but, in any event, the procedure laid down in Order 39, Rule 2-A is incapable of granting an immediate relief to a party who has been forcibly dispossessed in violation of an order of injunction. In such a case the Court is not powerless to grant relief to the aggrieved party in exercise of its inherent power. The very object for which Order 39, Rule 2-A has been enacted could be fulfilled by the grant of a temporary mandatory injunction and restoration of possession of the aggrieved party. The inherent power of the Court as recognised in section 151 of the Code is in addition to the power conferred on the Court under the provisions of the Code. All that the Court is concerned is to prevent abuse of the process of Court and to do justice by immediately intervening under circumstances which require such intervention by the Court. This is a well established proposition of law reiterated by the Calcutta High Court. However, the fact remains that the same is of no help to the respondents in the case in hand where the actual existence of the order itself is not proved and therefore question of violation thereof does not arise.

16. In Jai Mangla Harijan Kalyan Samiti v. State of Orissa and others, reported in : [1997]2SCR623 , the Apex Court has held that the High Court had ordered the authorities to locate and remove all the encroachments inside the hospital campus and if necessary with the help of the police. However, taking advantage of the said order, action was taken against those having tenements outside the hospital campus. In those circumstances, it was held that such persons can approach the High Court in order to pass an appropriate order in accordance with law. The decision is absolutely of no help to the respondents in the case in hand.

17. It is also a matter of record that this Court by its order dated 4-6-97 passed in Writ Petition No. 148/97 had issued certain directions to the petitioners and other Municipalities in Goa. The case of the petitioners was that they had acted bona fide in exercise of their duties under the Municipalities Act and keeping in view the said order of this Court. It is also the case of the petitioners that the suit shops were situated on the Municipal drain. The defence of bona fide exercise of the duties by the petitioners was rejected by the courts below without any appreciation of relevant materials and by total non-application of mind to the point in issue and in complete disregard to the basic aspect of the case. The findings in that regard are totally arbitrary and cannot be sustained. Merely because the fate of the suit would depend upon the existence of the suit shops, that by itself, cannot be made the sole ground to presume that there was an order of injunction against the petitioners and that the petitioners have disobeyed the same. Carelessness and/ or negligence on the part of the petitioners to take prompt action cannot be interpreted to mean that there was an order restraining the petitioners from removing the suit shops even though the same were in violation of the Municipal Act and Rules made thereunder or against the directions issued by this Court. In any case, if the suit is pending the rights of the parties would be decided by the Court on the basis of the evidence to be produced by the parties. It cannot be said that the parties are without remedy.

18. The fall-out of the above discussion is that the entire proceedings under Order 39, Rule 2-A initiated against the petitioners on account of alleged disobedience of the order of injunction stated to have been passed on 6-3-73 are to be quashed being ab initio void and not maintainable and for the same reason the order passed therein by the trial Court as well as the impugned order of the lower Appellate Court are also to be quashed and set aside.

19. The petition therefore succeeds. The impugned order as well as that of the trial Court giving directions to the petitioners to re-erect the suit shops and to restore the same as the same were before the demolition thereof, are hereby quashed and set aside. The proceedings under Order 39, Rule 2-A of C.P.C. against the petitioners in relation to the order dated 6-3-73 are hereby quashed. Rule is made absolute in the above terms with no order as to costs.

20. Petition succeeds.