# Din v. Kallo and others)

- **Citation:** (2011) 1 ILRA 61
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-01-29
- **Case number:** Contempt No. 1777 of 2010
- **Bench:** Anil Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/din-v-kallo-and-others-41901
- **Pages:** 4

## Headnote

Contempts of Courts Act 1972- Section
12-status Quo order-passed in second
appeal-under order 39 Rule 1 complete
procedure and consequences provided
under order XXXIX R.2-itself-contempt
alleging violation of status quo orderheld-not
maintainable
legal
aspect
dismissed.

Held: Para 15

For the foregoing reasons, the present
contempt petition filed by the applicants
under Section 12 of the Contempt
Court's Act for alleged non-compliance of
the
interim
order/injunction
order
granted by this Court in pending second
appeal is not maintainable and liable to
be dismissed.
62 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
Case law discussed:
1987, AWC, 506,1984, AWC, 567, 2003(1)
ARC 545.

## Text

1 All] Kalloo and others V. Satti Din
61
so far as present case is concerned,
petitioner's right for compliance of
natural justice is statutory as well
constitutional.

27. Accordingly, it shall not be
open to the respondents to proceed in a
manner different than what has been
provided
in
regulation
61
of
the
Regulations provided for the disciplinary
proceedings.

28. The principle of 'judicia
Posteriora sunt' in lege fortiora i.e.
requirement to show de facto prejudice
shall not be applicable when the statute
itself
provides
certain
procedures
regulating the disciplinary proceeding,
Rules,
regulations
and
mode
of
disciplinary proceeding provided under
the statute should be followed in true
sense. Hence, the submission made by
Sri Sudeep Seth, learned counsel for the
respondent seems to be not correct.

29. In all, what has been stated
herein above, the impugned order seems
to be violative of not only principle of
natural
justice
but
also
statutory
provisions
(supra)
regulating
the
disciplinary proceedings.

30. The writ petition is liable to be
and is hereby allowed. A writ in the
nature of certiorari is issued quashing the
impugned order dated 24th August,
2009, as contained in Annexure-1 to the
writ petition with consequential benefit.
The petitioner will be restored in service
and be paid salary forthwith. However
we agree with the submission made by
the respondents' counsel and provide that
it shall be open for the respondents to
take work or not, from the petitioner but
he be paid salary. So far as the back
wages is concerned, it shall be subject to
fresh inquiry, if any, conducted by the
respondents. In case the respondents take
a decision to hold fresh inquiry, then that
shall
be
held
expeditiously
and
preferably within a period of six months
from today. Parties to communicate
judgment forthwith.

31. Writ petition is allowed
accordingly.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.01.2011

BEFORE
THE HON'BLE ANIL KUMAR, J.

Contempt No. 1777 of 2010

Kalloo and others

 ...Petitioner
Versus
Satti Din

 ...Respondent

Counsel for the Petitioner:
P.V. Chaudhary

Counsel for the Respondent:
................

Contempts of Courts Act 1972- Section
12-status Quo order-passed in second
appeal-under order 39 Rule 1 complete
procedure and consequences provided
under order XXXIX R.2-itself-contempt
alleging violation of status quo orderheld-not
maintainable
legal
aspect
dismissed.

Held: Para 15

For the foregoing reasons, the present
contempt petition filed by the applicants
under Section 12 of the Contempt
Court's Act for alleged non-compliance of
the
interim
order/injunction
order
granted by this Court in pending second
appeal is not maintainable and liable to
be dismissed.
62 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
Case law discussed:
1987, AWC, 506,1984, AWC, 567, 2003(1)
ARC 545.

(Delivered by Hon'ble Anil Kumar, J.)

1. Present contempt petition has
been filed under Section 12 of the
Contempt Court Act for the alleged noncompliance of the order dated 03.09.2002
passed in Second Appeal No. 5 of 1995
(Satti Din Vs. Kallo and others).

2. Facts in brief are that in the year
1987, a Suit for permanent injunction has
been filed by the plaintiff-respondent
praying therein that the appellantsdefendants may be permanently restrained
from
interfering
in
their
peaceful
possession over the land in dispute which
is a 'Sahan'(registered as Civil Suit No.
463 of 1987, Satti Din Vs. kallu and
others).
Second
Additional
Munsif
Magistrate, Sitapur by judgment and order
dated 10.09.1992 dismissed the Suit.

3. Aggrieved by the same, an appeal
was filed, dismissed by judgment and
decree dated 23.09.1994 passed by 5th
Additional
District
Judge,
Sitapur.
Thereafter, second appeal under Section
100 C.P.C. has been filed before this
Court (registered as Second Appeal no. 5
of 1995, Satti Din Vs. Kallu etc.).

4. On 03.09.2002, an interim
injunction has been granted on the
application under Order XXXIX Rule 1
C.P.C., the relevant portion of the same is
quoted as under :-

"Till the next date of listing parties
shall maintain status quo, as it exists
today, with reference to subject matter in
dispute.

5. As per the version of the
appellant-defendants, the respondent tried
to construct a Nali over the land in dispute
and collected material on spot for that
purpose. On getting the information, the
applicants pursued the matter with the
Police authorities, but no heed has been
paid as the police is in collusion with the
respondent.

6. It is further pleaded on behalf of
the applicants that on 26.07.2010, an
application was moved under Section 151
C.P.C. in Civil Case No. 594 of 1995,
Kallu etc. Vs. Satti Din, pending in the
court of 4th Additional Civil Judge(J.D.),
Sitapur in which the land in question as
well as some other land involved, but
nothing has been paid in the said matter.

7. Further, on 27/28.07.2010, the
respondent constructed the Nali over the
land in dispute with the help of
musclemen and on resistance given by the
applicant no.1, he threatened him with
dire
consequences
and
completely
changed the situation of the land in
dispute affecting the Sahan of the
applicants to a great detriment.

8. In view of the above factual
backgrounds,
the
present
contempt
petition has been filed on the ground that
the respondent-plaintiff has violated the
order dated 03.09.2002 passed by this
Court in Second Appeal no. 5 of 1995,
Satti Din Vs. Kallu and others, so he is
liable to be punished.

9. Heard Sri P.V. Chaudhary,
learned counsel for the applicants and
perused the record.
1 All] Kalloo and others V. Satti Din
63

10. It is late in a day to quarrel that
in
a
second
appeal,
an
interim
order/injunction order is granted by Court
in view of the provisions as provided
under order XXXIX Rule 10 C.P.C. In
case,
if
there
is
any
breach
or
disobedience of the said order passed by
Court, for disobedience of the same, the
procedure is provided under Order
XXXIX Rule 2(a) C.P.C. which is as
under :-

"2-A. Consequence of disobedience
or breach of injunction - (1) In the case of
disobedience of any injunction granted or
other order made under Rule I or Rule 2
or breach of any of the terms on which the
injunction was granted or the order made,
of 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."

11. Accordingly, in view of the
above said facts, the question which rises
for consideration in the instant case that in
case if an alternative remedy under Order
XXXIX Rule 2-A C.P.C. is available to
the appellants for breach of the order
dated 03.09.2002 passed in pending
second appeal, then in that circumstances,
whether the present contempt petition
filed by him is maintainable or not. The
answer to the above said question lies in
the following judgments.

12. In the case of S.G. Pagaree Vs.
Zonal Manager, Food Coropration of
India, New Delhi and others reported in
1987, AWC, 506, it is held by this Court
that where alternative remedy under
Order XXXIX Rule 2-A C.P.C. is
available, proceeding under the contempt
Courts Act should not be taken.

13. In the case of Pratap Narain Vs.
Smt. Nomita Roy and others, reported in
1984, AWC, 567, the similar view was
also expressed and it was held that
remedy under Order XXXIX Rule 2-A
C.P.C.
is
far
more
adequate
and
satisfactory remedy as disobedience of an
injunction order of the Court below is
involved.

14. In the case of Savitri Devi(Smt.)
Vs. Civil Judge(J.D.), Gorakhpur and
others, 2003(1) ARC 545, it is held that in
view of the above discussion, once
reaches the inescapable conclusion that
proceedings under Order XXXIX Rule 2A are quashi-criminal in nature and are
meant to maintain the dignity of the Court
in the eyes of the people so that the
supremacy of law may prevail and to
deter the people for mustering the courage
to disobey the interim injunction passed
by the Court.

15. For the foregoing reasons, the
present contempt petition filed by the
applicants under Section 12 of the
Contempt Court's Act for alleged noncompliance of the interim order/injunction
order granted by this Court in pending
second appeal is not maintainable and
liable to be dismissed.

16. Accordingly, the same is
dismissed.

17. No order as to costs.
---------
64 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.01.2011

BEFORE
THE HON'BLE AHSOK SRIVASTAVA, J.

Criminal Revision No. 2146 of 2002

Dr. Jagdish Prasad Gaur ...Revisionist
Versus
State of U.P. and others ...Opp. Parties

Counsel for the Revisionist:
Sri Saurabh Gaur
Sri A.B.L. Gaur,
Sri V.P. Mishra,
Sri P.K. Singh

Counsel for the Opposite Party:
Sri Nitin Srivastava,
Sri Sunil Chandra Srivastava,
A.G.A.

Criminal
Revision-Session
Judge
Quashed the summoning order-offence
under section 323, 342, 504, 506
I.P.C.-applicant while in Que before
counter No. 541 for getting reservation
ticket-Noticed serious illegal activities
on protest-called in side the counter
ofter
closing
door
assaulted
and
misbehaved-handed
over
to
the
constable who also misuse his power
and post-on complaint all the accused
persons
summoned
by
magistrateastonishing
the
session
judge
by
misinterpreting the provision of section
197 Crpc. Set-a-side summoning orderin view of Bhgwan P.D. Srivastava case
which still hold good filed-for misuse of
power
or
doing
the
things
not
permitted under law- can not claim
protection of Section 197- order passed
by session judge wholly illegal and
perverse-quashed
Opposite
Parties
directed to appear before magistrate-in
case of default-NBW be issued.

Held: Para 11 & 12

A police constable, who is detaining a
person in custody, cannot be permitted
to assault or slap him while taking him
from a place to the police station
concerned.
Similarly
no
Reservation
Clerk
or
Supervisor
of
a
railway
reservation counter can be said to be
discharging their official duties while
they
are
abusing,
confining
and
assaulting a passenger who had gone to
the counter to purchase a ticket or
demanded the complaint book to lodge
the protest.

On the basis of the above discussion I
am of the view that the judgment and
order passed by the learned Sessions
Judge is totally illegal and perverse and
liable to be quashed.
Case law discussed:
AIR 1967 Supreme Court 1331 (V 54 C 278);
(2009) 3 Supreme Court Cases 398.

(Delivered by Hon'ble Ashok Srivastava, J.)

1. This criminal revision has been
preferred
by
the
revisionist
feeling
aggrieved by the judgment and order dated
3.12.2002 passed by the learned Sessions
Judge, Ghaziabad in Criminal Revision
No. 582 of 2002.

2. The brief facts of this case are that
the revisionist Dr. Jagdish Prasad Gaur is a
retired Reader and Head of Department of
I.P. (P.G.) College, Bulandshahr and after
his retirement he settled down in the city of
Ghaziabad. On 12.5.1998 at about 8.00
A.M.
he
went
to
railway
station,
Ghaziabad and stood in the que before
counter No. 541. He was there for
reservation of a railway ticket for one Smt.
Shobha Narayan. After a while the
revisionist and other persons who were
standing in the que noticed that the
reservation officials were committing