Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 1167/2009
th
% Reserved on: 25 February, 2015
th
Decided on: 9 March, 2015
BUNDU ..... Petitioner
Through: Mr. Dinesh Kumar, Advocate.
versus
SHAH ALAM & ORS ..... Respondents
Through: Mr. M.U. Khan, Advocate for
Respondent No.2
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
1. The Petitioner/Plaintiff had filed a suit before the learned Trial Court
seeking specific performance of an Agreement to Sell of immovable
property executed by Respondent/Defendant No.1 in favour of the Petitioner.
2. It was the case of the Petitioner in the plaint that the Respondent No.1
had, in pursuance to the Agreement to Sell, put the Petitioner into possession
of the property. Along with the suit, an application under Order 39 Rule 1
and 2 CPC was filed wherein the learned Trial Court passed an order dated
st
31 March, 1989 directing the parties to maintain status-quo in respect of
property bearing Stall No.5, situated at Bengali Market, New Seema Puri,
Shahdara, Delhi. The Petitioner claimed that he was dispossessed from the
property and on an application of the Petitioner under Order 39 Rule 2A
CPC the Respondent No.1 was held guilty and warrants of his arrest were
issued. An order directing the Petitioner to be put back into possession of
th
the property was also passed vide order dated 19 February, 2009 and
nd
warrants of possession of the suit property were issued on 2 May, 2009.
CM(M) 1167/2009 Page 1 of 6
nd
The Respondent No.2 filed objections against the order dated 2 May, 2009
th
issuing warrants of possession of the suit property on 13 May, 2009 stating
th
that he had purchased the suit property on 18 April, 1989 and was in
possession of the suit property since then. He also disclosed that in the suit,
th
he filed an application under Order 1 Rule 10 CPC on 6 April, 2004 but the
th
same was dismissed by the Court on 4 October, 2004. The Respondent
No.2 being a bona fide purchaser, he could not be dispossessed from the suit
property. The said objections of the Respondent No.2 were allowed vide the
impugned order without making any observation regarding the merit of the
claim or contention of the plaintiff that principle of lis pendens would apply
and hence the present petition. Vide the impugned order the learned Trial
Court withdrew the warrants of possession to decide the question of lis-
pendens at an appropriate stage and the Respondent No.1 was granted time
to appear before the Court.
3. During the pendency of the present proceedings, it was informed that
Shah Alam Respondent no.1 has since passed away and the learned counsel
for the petitioner stated that he did not want to implead the L.Rs. of Shah
rd
Alam which is recorded vide Order dated 23 January, 2013.
4. Learned counsel for the Petitioner contends that the provisions of
Section 52 of the Transfer of Property Act in relation to lis-pendens would
apply against the Respondent No.2/Objector and the objections are liable to
be dismissed in view of his own admission that he purchased the suit
st
property after institution of the suit and after the status quo order dated 31
March, 1989 was passed by the learned Trial Court. Reliance is placed on
Samee Khan vs. Bindu Khan, AIR 1998 SC 2765; Sanjay Verma vs. Manik
Roy and others, 2006 (13) SCC 608; Sarvinder Singh vs. Dalip Singh and
CM(M) 1167/2009 Page 2 of 6
others, 1996 (5) SCC 539; Bindu Khan vs. Samee Khan, AIR 1998 Rajasthan
115; Sujit Pal vs. Prabir Kumar Sun and others, AIR 1986 Calcutta 220 and
Savitri Devi vs. Civil Judge (Senior Division), Gorakhpur and others, AIR
2003 Allahabad 321.
5. Learned counsel for the Respondent No.2/Objector on the other hand
contends that the Objector was not a party to the suit and was not made a
party to the suit despite his having filed an application for impleadment and
therefore, he cannot be dispossessed from the suit property under Order 39
Rule 2A CPC and only the Respondent No.1 was liable to be proceeded
against under Order 39 Rule 2A for whom warrants of arrest had already
been issued.
6. Vide the impugned order learned Trial Court has not decided the plea
of lis pendens and has noted that the same will be decided at appropriate
stage. The impugned order only recalls the order issuing warrants of
possession.
7. In Samee Khan (supra) the Supreme Court while dealing with the
power of Court under Order 39 Rule 2A CPC in case of breach of injunction
held that under Order 39 Rule 2A CPC 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
the order is subsequently set aside. The purpose for attaching the property in
case of disobedience of the order of injunction is to compel the opposite
party to obey the order of injunction whereas detaining the disobedient party
in civil prison is the mode of punishment for his being guilty of such
disobedience. It was further held that the words “and may also” in Rule 2A
cannot be interpreted in the context as denoting to a step which is
CM(M) 1167/2009 Page 3 of 6
permissible only as additional to attachment of property of the opposite side.
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 and he
would be immune from all consequences even for any open defiances of a
Court order. Thus the pragmatic interpretation would be, it is open to the
Court to attach the property of the disobedient party and at the same time the
Court can order him to be detained in civil prison also if the Court deems it
necessary. Both steps can be resorted to or one of them alone needs to be
chosen. It is left for the Court to decide on consideration of the fact situation
in each case.
8. Whether a person not impleaded in the suit and not named in the
injunction order can be proceeded against under Order 39 Rule 2A CPC for
violation of the order depends upon facts and circumstances of each case.
The issue came up for consideration in Prafulla Kumar Vs. Jaya Krushna
Mohapatra & Ors. AIR 1994 Orissa 173 wherein it was held that an
injunction is an equitable relief and it is trite law that equity acts in
personam. Therefore, an injunction is a personal matter. The ordinary rule,
therefore, is that the person disobeying the order of injunction is to be
proceeded for contempt as the person named in the writ. Persons who are
not parties where order of injunction is passed are normally not to be
proceeded against for disobeying the injunction. However, the exception to
this general rule is that where it is alleged and proved that the person who
violated the order of injunction was passed, the proceeding can be validly
initiated against such person. In such a case the person violating the order
can be proceeded against, and also who have acted in abetting violation of
CM(M) 1167/2009 Page 4 of 6
order of injunction. It is, however, to be borne in mind that where a person
who is not a party to the suit is proceeded against in order to punish him it is
essential that he should be made a party to the proceeding for violation and it
should be brought home by sufficient and unimpeachable evidence that he
had been guilty of abetting violation of injunction. A party proceeded
against for violation of injunction can prove his innocence in the following
manner, i.e. by proving that (a) the order was not within knowledge, or (b)
the order was ambiguous and was reasonably capable of more than one
interpretation or (c) that in fact he did not intend to disobey the order, but
conducted himself in accordance with his interpretation of the order.
9. A perusal of the provision of Order 39 Rule 2A CPC and the judgment
in Samee Khan’s case (supra) would thus provide that the purpose of
attachment under Order 39 Rule 2A CPC is that the order of the Court is
complied with and the disobedient party is punished. In the present case the
disobedient party was Shah Alam, the Defendant in the suit. After the status
st
quo orders were passed by the learned Trial Court on 31 March, 1989 the
ownership in the property was passed on to the Respondent No.2 herein.
The Respondent No.2 was not a party to the suit. He had in fact moved an
application for being made a party under Order 1 Rule 10 CPC which was
disallowed. There being no order against the Respondent No.2 herein he
could not have been said to have disobeyed the order of this Court and
further he cannot be visited with the consequence of attachment of property
without being heard. It is for this reason that the learned Trial Court vide the
impugned order withdrew the warrants of possession and listed the matter
for hearing the parties on the issue of lis-pendens. As held in Samee Khan
(supra) the Court has to pass the orders in the facts of each case and given
CM(M) 1167/2009 Page 5 of 6
the facts of this case as Respondent No.2 was not a party to the suit he was
required to be heard and thus the impugned order withdrawing the order of
attachment cannot be held to be illegal.
10. The plea of lis-pendens etc. being urged by learned counsel for the
Petitioner cannot be looked into by this Court as the learned Trial Court has
not considered the same in the impugned order and has kept the same
pending for consideration.
11. Consequently the petition is dismissed.
(MUKTA GUPTA)
JUDGE
MARCH 09, 2015
‘vn’
CM(M) 1167/2009 Page 6 of 6
+ CM(M) 1167/2009
th
% Reserved on: 25 February, 2015
th
Decided on: 9 March, 2015
BUNDU ..... Petitioner
Through: Mr. Dinesh Kumar, Advocate.
versus
SHAH ALAM & ORS ..... Respondents
Through: Mr. M.U. Khan, Advocate for
Respondent No.2
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
1. The Petitioner/Plaintiff had filed a suit before the learned Trial Court
seeking specific performance of an Agreement to Sell of immovable
property executed by Respondent/Defendant No.1 in favour of the Petitioner.
2. It was the case of the Petitioner in the plaint that the Respondent No.1
had, in pursuance to the Agreement to Sell, put the Petitioner into possession
of the property. Along with the suit, an application under Order 39 Rule 1
and 2 CPC was filed wherein the learned Trial Court passed an order dated
st
31 March, 1989 directing the parties to maintain status-quo in respect of
property bearing Stall No.5, situated at Bengali Market, New Seema Puri,
Shahdara, Delhi. The Petitioner claimed that he was dispossessed from the
property and on an application of the Petitioner under Order 39 Rule 2A
CPC the Respondent No.1 was held guilty and warrants of his arrest were
issued. An order directing the Petitioner to be put back into possession of
th
the property was also passed vide order dated 19 February, 2009 and
nd
warrants of possession of the suit property were issued on 2 May, 2009.
CM(M) 1167/2009 Page 1 of 6
nd
The Respondent No.2 filed objections against the order dated 2 May, 2009
th
issuing warrants of possession of the suit property on 13 May, 2009 stating
th
that he had purchased the suit property on 18 April, 1989 and was in
possession of the suit property since then. He also disclosed that in the suit,
th
he filed an application under Order 1 Rule 10 CPC on 6 April, 2004 but the
th
same was dismissed by the Court on 4 October, 2004. The Respondent
No.2 being a bona fide purchaser, he could not be dispossessed from the suit
property. The said objections of the Respondent No.2 were allowed vide the
impugned order without making any observation regarding the merit of the
claim or contention of the plaintiff that principle of lis pendens would apply
and hence the present petition. Vide the impugned order the learned Trial
Court withdrew the warrants of possession to decide the question of lis-
pendens at an appropriate stage and the Respondent No.1 was granted time
to appear before the Court.
3. During the pendency of the present proceedings, it was informed that
Shah Alam Respondent no.1 has since passed away and the learned counsel
for the petitioner stated that he did not want to implead the L.Rs. of Shah
rd
Alam which is recorded vide Order dated 23 January, 2013.
4. Learned counsel for the Petitioner contends that the provisions of
Section 52 of the Transfer of Property Act in relation to lis-pendens would
apply against the Respondent No.2/Objector and the objections are liable to
be dismissed in view of his own admission that he purchased the suit
st
property after institution of the suit and after the status quo order dated 31
March, 1989 was passed by the learned Trial Court. Reliance is placed on
Samee Khan vs. Bindu Khan, AIR 1998 SC 2765; Sanjay Verma vs. Manik
Roy and others, 2006 (13) SCC 608; Sarvinder Singh vs. Dalip Singh and
CM(M) 1167/2009 Page 2 of 6
others, 1996 (5) SCC 539; Bindu Khan vs. Samee Khan, AIR 1998 Rajasthan
115; Sujit Pal vs. Prabir Kumar Sun and others, AIR 1986 Calcutta 220 and
Savitri Devi vs. Civil Judge (Senior Division), Gorakhpur and others, AIR
2003 Allahabad 321.
5. Learned counsel for the Respondent No.2/Objector on the other hand
contends that the Objector was not a party to the suit and was not made a
party to the suit despite his having filed an application for impleadment and
therefore, he cannot be dispossessed from the suit property under Order 39
Rule 2A CPC and only the Respondent No.1 was liable to be proceeded
against under Order 39 Rule 2A for whom warrants of arrest had already
been issued.
6. Vide the impugned order learned Trial Court has not decided the plea
of lis pendens and has noted that the same will be decided at appropriate
stage. The impugned order only recalls the order issuing warrants of
possession.
7. In Samee Khan (supra) the Supreme Court while dealing with the
power of Court under Order 39 Rule 2A CPC in case of breach of injunction
held that under Order 39 Rule 2A CPC 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
the order is subsequently set aside. The purpose for attaching the property in
case of disobedience of the order of injunction is to compel the opposite
party to obey the order of injunction whereas detaining the disobedient party
in civil prison is the mode of punishment for his being guilty of such
disobedience. It was further held that the words “and may also” in Rule 2A
cannot be interpreted in the context as denoting to a step which is
CM(M) 1167/2009 Page 3 of 6
permissible only as additional to attachment of property of the opposite side.
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 and he
would be immune from all consequences even for any open defiances of a
Court order. Thus the pragmatic interpretation would be, it is open to the
Court to attach the property of the disobedient party and at the same time the
Court can order him to be detained in civil prison also if the Court deems it
necessary. Both steps can be resorted to or one of them alone needs to be
chosen. It is left for the Court to decide on consideration of the fact situation
in each case.
8. Whether a person not impleaded in the suit and not named in the
injunction order can be proceeded against under Order 39 Rule 2A CPC for
violation of the order depends upon facts and circumstances of each case.
The issue came up for consideration in Prafulla Kumar Vs. Jaya Krushna
Mohapatra & Ors. AIR 1994 Orissa 173 wherein it was held that an
injunction is an equitable relief and it is trite law that equity acts in
personam. Therefore, an injunction is a personal matter. The ordinary rule,
therefore, is that the person disobeying the order of injunction is to be
proceeded for contempt as the person named in the writ. Persons who are
not parties where order of injunction is passed are normally not to be
proceeded against for disobeying the injunction. However, the exception to
this general rule is that where it is alleged and proved that the person who
violated the order of injunction was passed, the proceeding can be validly
initiated against such person. In such a case the person violating the order
can be proceeded against, and also who have acted in abetting violation of
CM(M) 1167/2009 Page 4 of 6
order of injunction. It is, however, to be borne in mind that where a person
who is not a party to the suit is proceeded against in order to punish him it is
essential that he should be made a party to the proceeding for violation and it
should be brought home by sufficient and unimpeachable evidence that he
had been guilty of abetting violation of injunction. A party proceeded
against for violation of injunction can prove his innocence in the following
manner, i.e. by proving that (a) the order was not within knowledge, or (b)
the order was ambiguous and was reasonably capable of more than one
interpretation or (c) that in fact he did not intend to disobey the order, but
conducted himself in accordance with his interpretation of the order.
9. A perusal of the provision of Order 39 Rule 2A CPC and the judgment
in Samee Khan’s case (supra) would thus provide that the purpose of
attachment under Order 39 Rule 2A CPC is that the order of the Court is
complied with and the disobedient party is punished. In the present case the
disobedient party was Shah Alam, the Defendant in the suit. After the status
st
quo orders were passed by the learned Trial Court on 31 March, 1989 the
ownership in the property was passed on to the Respondent No.2 herein.
The Respondent No.2 was not a party to the suit. He had in fact moved an
application for being made a party under Order 1 Rule 10 CPC which was
disallowed. There being no order against the Respondent No.2 herein he
could not have been said to have disobeyed the order of this Court and
further he cannot be visited with the consequence of attachment of property
without being heard. It is for this reason that the learned Trial Court vide the
impugned order withdrew the warrants of possession and listed the matter
for hearing the parties on the issue of lis-pendens. As held in Samee Khan
(supra) the Court has to pass the orders in the facts of each case and given
CM(M) 1167/2009 Page 5 of 6
the facts of this case as Respondent No.2 was not a party to the suit he was
required to be heard and thus the impugned order withdrawing the order of
attachment cannot be held to be illegal.
10. The plea of lis-pendens etc. being urged by learned counsel for the
Petitioner cannot be looked into by this Court as the learned Trial Court has
not considered the same in the impugned order and has kept the same
pending for consideration.
11. Consequently the petition is dismissed.
(MUKTA GUPTA)
JUDGE
MARCH 09, 2015
‘vn’
CM(M) 1167/2009 Page 6 of 6