Sagarmal Sharma Vs. Gajanan Alias Ganjana Sharma - Court Judgment

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- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - there cannot be a breach of an injunction if the party acted in good faith and without any intention to violate the order or in exercise of a right or duty under some statutory provisions. taking all these facts into consideration, in my opinion it cannot be held that the defendant had wilfully disobeyed the order, i am not satisfied that the defendant acted with mala fide intention.a.k. padhi, j.1. defendant no. 1 is the petitioner. this civil revision has been filed assailing the order dated 5-7-1985 passed by the appellates court under order 39, rule 2-a, cpc.2. the plaintiff has filed title suit no. 62 of 1982 praying for partition. during pendency of the suit plaintiff filed an application under order 39, rule 1, cpc praying for injunction against the defendant from alienating schedules 'a' and 'b' properties described in the plaint until disposal of the suit. application for injunction was registered as misc. case no. 86 of 1982. ad interim injunction was passed on 16-12-1982 in the misc. case. the plaintiff filed an application under order 39, rule 2-a, cpc, on the allegation that defendant no. 1 has executed two sale deeds on 20-12-1982 violating the interim order of injunction passed in misc. case no. 86 of 1982. defendant filed objection to the application under order 39, rule 2-a cpc, and submitted that the injunction order has been passed in respect of m. s. holding no. 1628, plot no. 1628 area a-3. 42 decs the defendant had not sold any property, but his sons have sold some properties under exts. 4 and 5 from m. s. holding no. 544 comprising of an area of a. 2. 61 decs. since the order of injunction was passed in respect of m. s. holding no. 1628 and there was no order of ad interim injunction so far as m. s. holding no. 544 is concerned, the defendant has not violated any order of injunction.3. the learned trial court after considering the evidence on record, came to the conclusion that the land sold under exts. 4 and 5 are regarding m s. holding no. 544 which is neither the subject matter of the plaint schedule nor was given in the petition for injunction and, therefore, the defendant had not violated the ad interim order of injunction passed by the court.4. the plaintiff filed appeal against the order refusing to take any action under order 39, rule 2-a, cpc. the learned appellate court after observing that there is no dispute about the plot number, area and boundary which tallies and that it was nobody's case that plot no. 1628 under m. s. holding no. 1628 belongs to any of the parties, description of the holding number was typographical mistake and, therefore, though m. s. holding no. 1628 was there in the application for injunction and in the plaint, it has to be taken that ad interim injunction was passed regarding m. s. holding no. 544 and, therefore, the petitioner has violated the order of injunction and directed attachment of property of the petitioner to the tune of rs. 5,000/-.5. after perusing the records, i find in the application praying for injunction, no boundary of any land has been given. the area for which injunction was sought for is a. 3. 42 decs. of plot no. 1623 of m. s. holding no. 1628. therefore, the observation of the appellate court that there was no dispute about the area and the boundary and they tally is an error of record. after comparing. i find the area given in the application for injunction and the area given in the plaint and the area given in the violation application do not tally. there is no description of boundary of any holding in the plaint, injunction petition or in the application under order 39, rule 2-a, cpc. disobedience of an order of injunction is contempt of court. the sub-rule of order 39, cpc, provides for punishment not only off disobedience of temporary injunction but also of a breach of any of the terms subject to which injunction may have been granted.as regards the penalty for disobedience of an injunction, the sub-rule should be strictly construed and that it cannot be read as providing any penalty other than specifically provided in violation of the order of prohibition. there cannot be a breach of an injunction if the party acted in good faith and without any intention to violate the order or in exercise of a right or duty under some statutory provisions. a party cannot be held to be guilty of wilful disobedience of the order if that order is ambiguous and is reasonably capable of more than one interpretation and the party concerned in fact did not intend to disobey the order but conducted himself in accordance with his interpretation of the order. this view of mine finds support from the case of the state of bihar v. rani sonabati kumar (air 1961 sc 221), in which their lordships have opined that if an order is ambiguous and capable of two interpretations and a party acted bona fide on his own interpretation, then he shall not be guilty of wilful disobedience of the order. in the case of narasingha satpathy and ors. v. labanya dibya and ors. [58 (1984) clt 454', his lordship has opined that irrespective of the nature of a proceeding under order 39, rule 2-a, cpc, as to whether such a proceeding is quasi-criminal in nature or essentially a civil proceeding, a person cannot be held guilty for violating the order of injunction unless the allegations made against him are proved to the satisfaction of the court.6. this being the undisputed position of law, coming to the facts of this case neither any boundary has been described in the plaint nor any boundary has been described in the application for injunction. under exts. 4 and 5 plot no. 1628 comprising of an area a. 2. 61 desc. of m. s. holding no. 544 has been sold by the sons of the defendant. this sale of the property is said to be in violation of the prohibitory order passed on 16-12-1982. in the application for injunction the plaintiff sought injunction regarding schedules 'a' and 'b' properties. schedule 'a' has been described as follows :m. s. holding no. plot no. area1628 1628 a. 3.42445 1627 ac. 0.64' 1630 ac. 0.61------------ g. total. ac. 4.47 decs.and no boundary has been indicated. it is also nobody's case that m. s. plot no. 1628 of holding no. 1628 is not in existence at all. taking all these facts into consideration, in my opinion it cannot be held that the defendant had wilfully disobeyed the order, i am not satisfied that the defendant acted with mala fide intention. the order of the appellate court holding that the petitioner is liable under order 39, rule 2-a, cpc, and directing the property of the petitioner to be attached to the extent of rs. 5,000/- is not sustainable.in the result, the impugned order is set aside and the civil revision is allowed. in the circumstances of the case, there shall be no order as to costs. revision allowed.