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PETITIONER:
SAMEE KHAN
Vs.
RESPONDENT:
BINDU KHAN
DATE OF JUDGMENT: 01/09/1998
BENCH:
S. SAGHIR AHMAD, K.T. THOMAS
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
Two neighbours are engaged in a long drawn fight in
civil court on a small issue. The fight started at the
lowest level (Munsiff’s Court) and they have now reached
this apex Court with a side issue which emanated therefrom.
Defendant in the suit has defied an order of ad-interim
injunction and plaintiff in the suit moved for punitive
action against him. the trial court ordered him to be put in
prison for one month. that order was confirmed by the
appellate Court, but the High Court in revision quashed it.
Plaintiff is still classing his adversary on that issue and
he has reached this court with the special leave Petition
against the High Court’s order.
The subject-matter of the suit is a small space of land
used as a means of access (gali) which abuts the house of
both the parties. Plaintiff who filed the suit prayed for an
ad-interim injunction order restraining the defendant from
causing any obstruction to the use of the said space as a
gali. The trial Court which granted the temporary injunction
order on 16.10.1984 required the defendant to maintain
status-quo in regard to the suit property and subsequently
the ad-interim order was made absolute. but within a month
thereof plaintiff complained to the court that the defendant
had put up a brick wall in the disputed space in utter
defiance of the injunction order and moved for initiating
action under Order 39 Rule 2A of the Code of Civil Procedure
(for short ’the Code’). The trial court found that defendant
had put up the obstruction wall in disobedience of the order
of injunction and directed him to be detained in civil
prison for a period of one month. The said order was
confirmed in appeal by the Civil Judge (Senior Division).
Before the High Court, defendant adopted a twin
approach though he did not dispute the factual position that
the impugned obstruction was made by him. firstly he raised
a contention that the Court cannot order his detention
without ordering attachment of his property. Alternatively,
he pleaded for mercy of the court on the facts that the
obstruction has subsequently been removed and he has
tendered unconditional apology to he court. Learned single
Judge of the High Court of Rajasthan who heard the matter,http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6
accepted both pleas and exonerated him from punishment.
Learned counsel for the petitioner contended first that
the view taken by the High Court that no Court can direct a
contumacious party to be detained in prison without ordering
his property to be attached, is contrary to law and settled
legal position. He cited certain decision of different High
Courts in support of his contention. In fact, those
decisions were cited before the High Court also but learned
single Judge dissented from them and concluded that
attachment of property of the defiant party is sine qua non
for resorting to the action of sending him to prison.
Order 39 Rules 1 and 2 of the Code deal with powers of
the Court to grant temporary injunction. Rule 2A has been
inserted in the order as per Act 104/1976. Rule 2A reads
thus:-
" 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
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 property
entitled thereto."
Along with the insertion of the said Rule, legislature
has deleted the erstwhile corresponding provision which was
sub-rule (3) to Rule 2. It was worded as follows:-
" In case of disobedience, or of
breach of any such terms, the Court
granting an injunction 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 six
months, unless in the meantime the
Court directs his release."
It can be noted from the "Objects and Reasons" for the
aforesaid amendment in 1976 that it is intended to make the
provision applicable also to cases where injunction orders
passed under Rule 1 are disobeyed, and for empowering a
transferee court also to exercise such powers. Otherwise thehttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6
deleted provision is the same as the present sub-rule 2A(1).
Learned Single Judge Considered the said Rule in
juxtaposition with Order 21 Rule 32(1) of the Code and has
observed that the latter provision deals with execution of a
decree of injunction against a judgment debtor while the
former deals with ad-interim or interlocutory order of
injunction by providing remedies for disobedience or breach
of such orders.
Learned Judge pointed out that under Order 21 Rule 32
the wording is that the "decree may be enforced by his
detention in the civil prison or by the attachment of his
property or by both". The use of the words "or both"
according to the learned Judge must be understood
differently from the words "and may also" as used in the
case of interlocutory order of injunction as the former
definitely indicated that either of the alternatives or both
of them can be resorted to. The following are the reasons
adverted to by the learned judge:
"This distinction between the two
remedies, therefore, suggests that
the conjunction ’and’ used in the
language of sub-rule 1 of Rule 2A
of Order 39 CPC should not be read
as ’or’ as has been used in the
language of sub-rule 1 of Rule 32
of Order 21. It may further be
noted that the use of the words
’and may also’ in the latter part
of sub-rule 2-A(1) clearly suggests
that the remedy of civil
imprisonment of the contemner is
not an alternative remedy but an
’additional remedy’. Alternative
remedies give option to choose one
or he other remedy from amongst the
remedies provided and such remedies
are no co-existent unless
specifically provide as has been
done in Order 21 Rule 32 by use of
the words ’or both’. In the
language of Order 39 Rule 2A(1) the
use of the words ’and may also’
indicates the intention of the
Legislature that the order of
detention of the contemner in civil
imprisonment may be passed in
’addition to’ the order of
attachment of his property and not
’in lieu’ thereof."
Learned Judge then proceeded to consider it from
another angle, for which the main distinction between civil
contempt and criminal contempt was highlighted and observed
that enforcement of the order in civil contempt is for the
benefit of one party against another, while the object in
criminal contempt is to upheld "the majesty of law and the
dignity of the Court". In that context the High Court added
thus:
" Viewed from the above angle also
I am of the opinion that the
punishment of civil imprisonment in
the case of violation or
disobedience of the order of an
injunction of a Court is to be
awarded ’in addition to’ and not
’in lieu of’ or ’in thehttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6
alternative’ of the punishment of
attachment of his property. Rule
2A(1) gives an "additional" power
to the Court, as is indicated by
the use of the words " and may
also" and not an "alternative"
power, as would have been indicated
if the word "or" had been used, to
punish the contemner by his sending
to civil prison besides attaching
his property. In my opinion the
legislature cannot be attributed
with an intention of using the
words "and may also" in the latter
part of sub- rule (1) of Rule 2A of
the Order XXXIX CPC unnecessarily,
superfuously and without any
purpose. Those words, to my mind,
necessarily suggest that the order
of sending the contemner to civil
prison may be passed only in
addition to the order of attachment
of his property."
At the first blush the above interpretation appeared
attractive. But on a closer scrutiny we feel that such
interpretation is not sound and it may lead to tenuous
results. No doubt the wording as framed in Order 21 Rule
32(1) would indicate that in enforcement of the decree for
injunction a judgment-debtor can either be put in civil
prison or his property can be attached or both the said
courses can be resorted to. But sub-rule (5) of Rule 32
shows that the court need not resort to either of the above
two courses and instead the court can direct the judgementdebtor the perform, the act required in the decree or the
court can get the said act done through some other person
appointed by the court at the cost of the judgement-debtor.
Thus, in execution of a decree the Court can resort to a
three fold operation against disobedience of the judgmentdebtor in order to compel him to perform the act. But once
the decree is enforced the judgment-debtor is free from the
tentacles of Rule 32. A reading of that Rule shows that the
whole operation is for enforcement of the decree. If the
injunction or direction was subsequently set aside or if it
is satisfied the utility or Rule 32 gets dissolved.
But the position under rule 2A of Order 39 is
different. Even if the injunction order was subsequently set
aside the disobedience does not get erased. It may be a
different matter that the rigour of such disobedience may be
toned down if he order is subsequently set aside. for what
purpose the property is to be attached in the case of
disobedience of the order of injunction? Sub-rule (2)
provides that if the disobedience or breach continues beyond
one year from the date of attachment the court is empowered
to sell the property under attachment and compensate the
affected party from such sale proceeds. In other words,
attachment will continue only till the breach continues or
the disobedience persists subject to a limit of one year
period. If the disobedience ceases to continue in the
meanwhile the attachment also would cease. Thus even under
Order 39 Rule 2A the attachment is a mode to compel the
opposite party to obey the order of injunction. But
detaining the disobedient party in civil prison is a mode of
punishment for his being guilty of such disobedience.
The words "and may also" appearing in R.2A were sought
to be given a meaning that the course suggested thereafterhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6
in the Rule has to be resorted to as an optional additional
step, a resort to which would be impermissible without
complying with the first course suggested in the Rule. The
word "also" has different attributes and its meaning is not
to be confined to "further more". In legalistic use, the
word "also" can be employed to denote other meninges as
well. In Black’s Law Dictionary the word "also has the
following variety of meanings:
Also. Besides as well in addition;
likewise, in like manner;
similarly; too; withal. Some other
thing, including, further,
furthermore, in the same manner,
moreover; nearly the same as the
word "and" or "likewise".
Since the word "also" can have meaning as such "as
well" or "likewise", can not those meaning be used for
understanding the scope of the trio words "and may also"?
Those words cannot altogether be detached from the other
words in the sub-rule. Here again the word "and" need not
necessarily be understood as denoting a conjunctive sense.
In Stroud’s judicial Dictionary it is stated that the word
"and" has generally a cumulative sense, but sometimes it is
by force of a context read as "or" Maxwell on
"interpretation of Statutes" has recognised the above use to
carry out the interpretation of the legislature. This has
been approved by this Court in Ishwar Singh vs. State of UP
{AIR 1968 SC 1450}. The principle of Noscitur A Sociis can
be profitably be used to construct the word "and may also"
in the sub-rule.
Hence the words "and may also" in Rule 2-A cannot be
interpreted 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 hall
be allowed to bring about such a sterile or anomalous
situation (vide Constitution Bench in Vidya Charan Shukla
vs. Khubchand Baghel [AIR 1964 SC 1099]. The pragmatic
interpretation, therefore, must be this: 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.
It is pertinent to point out that Rule 2(3) of Order 39
of the Code before that sub-rule was deleted by Act 104 of
1976, has been interpreted by different High Courts in India
and in almost all such decisions the High Courts have
adopted a similar construction as we have made above. (that
sub-section has been quoted earlier). It is almost the same
as Rule 2A and the slight distinction is not material for us
in this case. Vide, a Full Bench of the Madras High Court in
Ottapiurakkal Thazath Suppi & ors. vs. Alabi Mashur Koyanna
Koya Kunhi Koya (AIR 1917 Madras 448) a Single Judge of the
Patna High Court in Nawal Kishore Singh & ors. vs. Rajendra
Prasad Singh & Ors. (AIR 1976 Patna 56) which was
subsequently approved by a Division Bench of the same High
Court. Kapildeo Upadhyay vs. Raghunath Pandey [AIR 1978http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6
Patna 212].
We, therefore, disagree with the interpretation placed
by the learned Single Judge in the impugned order regarding
the scope of Rule 2A of Order 39 of the Code. However, we
are in agreement with him that in view of the subsequent
actions done by the respondent (by removing the obstruction
and tendering unconditional apology to the court) it is not
necessary to put the respondent in prison. We, therefore,
dismiss this special leave petition subject to the
clarification made above regarding the legal position.
