Smt. Lakshmamma Vs. K.S. Sheshanna - Court Judgment

Excerpt:
(a)civil procedure code, 1908 (central act no. v/1908) - order 39 rule 2(a) -- violation of -plaintiff will have to establish beyond any shadow of doubt that the defendant had willfully committed disobedience or breach of the injunction order - the application alleging breach of an injunction order has to be decided on the basis of evidence lead by the parties. ; needless to say that when the defendant denies the knowledge of the exparte order or that she has not deliberately committed disobedience of the injunction order, the application alleging breach of an injunction order has to be decided on the basis of evidence led by the parties. the court imposing a punishment under order 39 rule 2 (a) of the cpc has to bear in mind that the proceeding under the said provision 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 defendant had willfully committed disobedience or breach of the injunction order. the burden of proving the case in such cases lies entirely on the plaintiff. i am of the view that the plaintiff has not established that the defendant has willfully violated the order of injunction. ; appeal allowed - section 34 & high court of karnataka arbitration (proceedings before the courts) rules, 2001, rule 4(b) & c.p.c., order 14, rule 1: [d.v. shylendra kumar, j] setting aside of award - application under section 34 of the act necessity as to framing of issue - held, in the very nature of proceedings under section 34 of the arbitration & conciliation act, the burden is squarely on the applicant to prove the applicants case to be within the scope of one of the enumerated grounds under section 34 of the act that itself constitutes the issue before the court and there is no question of the court being bound to frame or determine issues like in a civil suit where the adversary joins the issue by disputing facts or averments on fact or law. while in a given case, if the court does frame the issue, the order cannot be characterised as bad in law as even in terms of rule 4 of arbitration (proceedings before the court) rules, the applicability of provisions of cpc is not excluded in any manner indicated, if a particular provision is not invoked, it does not necessarily mean the order becomes bad for not applying such procedural provisions. the phrase in so far as they can be made applicable. therefore, when examined in the light of the provisions of section 34 of the act, does not necessarily lead to the situation that a provision of the nature of order 14 of c.p.c., is a mandatory requirement to be applied as a provision of cpc to all situations in application under section 324 of the act. in fact, section 34 application can be disposed of without framing any issues at all. - 2,50,000/-.it is contended that though the plaintiff has been ready and willing to perform his part of the contract, the defendant has failed to perform her part of the obligation and has been making attempts to alienate the suit property. it is argued that the plaintiff has failed to establish that the defendant had the knowledge of the interim order or that the defendant has deliberately violated the said interim order. it is well settled that the order cannot be passed on suspicion or as a matter of course. rani sonabati kumari, [1961]1scr728 has held that 'a party proceeded under order 39 rule 2(a) of cpc for disobedience of an order of injunction cannot be held to have willfully disobeyed the order provided two conditions are satisfied viz (i) that the order was ambiguous and was reasonably capable of more than one interpretation;abdul nazeer, j. 1. the defendant in o.s.no. 2930/2001 on the file of the xi additional city civil judge, bangalore, has filed this appeal challenging the order passed on i.a.no. ii dated 7.9.2001.2. the plaintiff namely k.s. sheshanna has filed the said suit for specific performance of an agreement of sale dated 5.12.1999. according to him, the defendant has agreed to sell the suit schedule property for a consideration of rs. 3 lakhs and has executed the said agreement of sale dated 5.12.1999 receiving an advance amount of rs. 2,50,000/-. it is contended that though the plaintiff has been ready and willing to perform his part of the contract, the defendant has failed to perform her part of the obligation and has been making attempts to alienate the suit property.3. the appellant-defendant has filed the written statement denying the execution of the agreement of sale and receipt of advance as contended by the plaintiff. it is her case that plaintiff being her elder brother, was managing the affairs of the suit property on her behalf. since, he was in need of money, he has collected the original documentsof the suit property from the defendant and has pledged the same with a financier. for the said purpose, the plaintiff has obtained her signatures and thumb mark on blank papers representing that he has to deposit the documents with the financier. it is pleaded that the plaintiff has practiced fraud on the defendant.4. in the said suit, the plaintiff has filed i.a.no. 1 seeking an order of temporary injunction restraining the defendant from alienating the suit property pending disposal of the suit. the court below has granted an exparte order on 21.4.2001 restraining the defendant from alienating the suit property to third parties till the next date. the plaintiff has filed i.a.no. ii under order 39 rule 2(a) of cpc contending that the defendant has violated the said order and has sold the property by the registered sale deed dated 15.6.2001. therefore, he has sought for detention of the defendant in civil prison and attachment of her property for violation of the order dated 21.4.2001. the defendant has filed her objections to the said i.a.no. ii. it is stated in her objections that she was not aware of the order dated 21.4.2001 passed by the court below. it is her case that she was not served with any order as alleged, prohibiting her from alienating the property owned and possessed by her and that the order came to her knowledge only when she was given a copy of the application filed by the plaintiff under order 39 rule 2(a) of cpc. it is alternatively contended that she has not willfully violated the order dated 21.4.2001.5. the trial court has allowed i.a.no. ii and has directed detention of the defendant in civil prison for a period of three months and has directed attachment of her property.6. this court by an order dated 20.9.2001 has directed emergent notice and stayed the order passed on i.a.no. ii by the trial court, for a period of three months. on 18.2.2002 this court has admitted the appeal and the interim order granted earlier has been continued.7.i have heard the learned counsel for the parties.8. learned counsel sri c.v. nagesh appearing for the appellant/ defendant submits that the power vested with the trial court under order 39 rule 2(a) of the cpc is penal in nature. therefore the burden is on the person who alleges disobedience to prove the ingredients of the offence beyond reasonable doubt. he further submits that the defendant had no knowledge of the interim order passed by the court. he submits that the defendant has not deliberately violated the interim order passed by the trial court. the defendant is a 60 years old illiterate lady and that the plaintiff being her brother had taken her signatures on the blank papers. it is argued that the plaintiff has failed to establish that the defendant had the knowledge of the interim order or that the defendant has deliberately violated the said interim order. he submits that the defendant has great respect for the orders passed by the court and that if she had the knowledge of the order, she could not have alienated the suit schedule property.9. per contra, sri g. manivannan learned counsel for the plaintiff points out that the defendant has sold the suit property after receipt of the copy of the interim order. he has justified the order of the trial court for the reasons stated therein.10. a proceeding under rule 2(a) of order 39 is a serious matter. the court is empowered to order to take away the liberty of an individual and order detention of the person who violates the order, in civil prison. the said power of the court is penal in nature. therefore, the burden lies heavily on the person who alleges disobedience to prove the ingredients of the offence beyond reasonable doubt. it is well settled that the order cannot be passed on suspicion or as a matter of course. there should be a clear proof that the order disobeyed was clear, unambiguous and with full knowledge of the contents of the order, it was willfully disobeyed.11. the hon'ble supreme court in the case of the state of bihar v. rani sonabati kumari, : [1961]1scr728 has held that ' a party proceeded under order 39 rule 2(a) of cpc for disobedience of an order of injunction cannot be held to have willfully disobeyed the order provided two conditions are satisfied viz (i) that the order was ambiguous and was reasonably capable of more than one interpretation; ii) that the party being proceeded against in fact did not intend to disobey the order, but conducted himself in accordance with its interpretation of the order.'12. this court in the case of m.d. nanaiah v. k. nagaraju, : air1995kant389 has reiterated that powers vested with the trial courtunder order 39 rule 2(a) is penal in nature and burden is heavy on the person alleging disobedience to prove ingredients of the offence beyond reasonable doubt. it is further held that there should be a clear proof that the order has been disobeyed with full knowledge of thecontents of the order.13. in the case of k. seshappa v. st. francis xavier church, chikkaballapur, 1999 (5) kar.l.j. 379 this court has held that the purpose of proceeding under order 39 rule 2(a) is to punish the party committing such breach, and it has no relation with suit proceeding as two are separate proceedings. it is further held that the application alleging breach of injunction order has to be decided on the basis of the evidence led in the proceedings and court, after recording evidence led by both parties cannot refuse to give decision on application separately.14. in the case of gyan chand jain and ors. v. xiii additional district and sessions judge, agra, and ors., air 1998 allahabad p. 228 it is held that the proceedings under order 39 rule 2a is in the nature of criminal proceedings and the principle of criminal law will apply to such proceedings.15. in the instant case, the defendant has stated that she was notaware of the order dated 21.4.2001 and that she was not served withany order dated 21.4.2001 prohibiting her from alienating the property.my attention was drawn to the interim order passed by the trial courtsaid to have been served on the defendant. the said order is in english.learned counsel for the appellant submits that the appellant is anilliterate widow aged about 60 years not capable of understanding thesame. it is also evident from the records that the court below has notrecorded any evidence. though the plaintiff in i.a. no. ii alleged thatthe defendant with an intention to defeat the claim of the plaintiff executedthe sale deed on 16.2.2001, she has denied the same in the objectionsto i.a.no. ii. therefore, it is incumbent upon the plaintiff to establishthe fact that the said interim order has been served on the defendantand that with full knowledge, she has disobeyed the said order.16. needless to say that when the defendant denies the knowledge of the exparte order or that she has to deliberately committed disobedience of the injunction order, the application alleging breach of an injunction order has to be decided on the basis of evidence led bythe parties. the court imposing a punishment under order 39 rule 2(a) of the cpc has to bear in mind that the proceeding under the said provision 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 defendant had willfully committed disobedience or breach of the injunction order. the burden of proving the case in such cases lies entirely on the plaintiff. i am of the view that the plaintiff has not established that the defendant has willfully violated the order of injunction.17. in the result, this appeal is allowed. the order dated 7.9.2001 passed by the trial court is set aside. the matter is remitted back to the trial court for fresh disposal in accordance with law and in the light of the aforesaid observations.no costs.