# Makkhan Singh & Anr v. Shyam Singh & Ors

- **Citation:** (2020) 1 ILRA 536
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-18
- **Case number:** Matters Under Article 227 No. 8804 of 2019
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/makkhan-singh-anr-v-shyam-singh-ors-45214
- **Pages:** 6

## Headnote

A. Civil Procedure Code (5 of 1908), Order
39 Rule 2A - 'wilful disobedience' - to
attract the provisions of O. 39 R. 2A - it
has to be proved to satisfaction of Court
that
disobedience
was
not
mere
'disobedience' but a 'wilful disobedience'
, by cogent evidence, by the party which
complains of the breach - There must be
clear proof that the injunction order was
within full knowledge of the person who
is alleged to have disobeyed the same - A
person cannot be held to be guilty
merely on the basis of a constructive
notice or presumption with regard to
service of notice - Court cannot proceed
on surmises, suspicion or inferences.

Ad-interim
injunction
directing
parties
to
maintain status quo - notice sent by registered
post to the defendants - defendants harvested
the wheat crop - Held - no material on record
to show that injunction order served on the
defendants - a case of willful disobedience had
not been made out so as to attract the
provisions of Order XXXIX Rule 2A. (Para 14,
15, 16 & 18)

Matter Under Article 227 dismissed. (E-5)
List of cases cited: -

## Text

536 INDIAN LAW REPORTS ALLAHABAD SERIES
(Supra) can be very well raised by the
respondent-plaintiff at the time of final
hearing objecting the application filed
under Order 41 Rule 27 of CPC, but so far
as law laid down by the Apex Court in the
matter of State of Rajasthan (Supra), it is
very much clear that the application filed
under Order 41 Rule 27 of CPC can be
decided at the time of final hearing of
Revision.

11. In the present case, there is no
dispute on the point that the application of
petitioner-revisionist has been filed under
Order 41 Rule 27 of CPC for producing
additional evidence which was decided
prior to finally deciding the Revision
whereas in the light of law laid down by
this Court, it should have been heard and
decided at the time of final hearing of
Revision i.e. at the stage when it is
possible for the Court concerned to
consider this fact that whether additional
evidence is required to be taken on record
to decide the case or for substantial justice,
therefore, impugned order is bad in law
and is liable to be set aside.

12. With the aforesaid observations,
impugned order is hereby set aside and
petition is allowed.

13. No order as to costs.

14. Revisional Court is directed to
decide the application of the Revisionist
filed under Order 41 Rule 27 of CPC in
the light of law laid down by the Apex
Court as well by this Court.
----------
(2020)1ILR 536

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.12.2019
BEFORE
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Matters Under Article 227 No. 8804 of 2019

Makkhan Singh & Anr. ...Petitioners
Versus
Shyam Singh & Ors. ...Respondents

Counsel for the Petitioners:
Sri Manish Dev Singh

Counsel for the Respondents:
Sri Sukesh Kumar

A. Civil Procedure Code (5 of 1908), Order
39 Rule 2A - 'wilful disobedience' - to
attract the provisions of O. 39 R. 2A - it
has to be proved to satisfaction of Court
that
disobedience
was
not
mere
'disobedience' but a 'wilful disobedience'
, by cogent evidence, by the party which
complains of the breach - There must be
clear proof that the injunction order was
within full knowledge of the person who
is alleged to have disobeyed the same - A
person cannot be held to be guilty
merely on the basis of a constructive
notice or presumption with regard to
service of notice - Court cannot proceed
on surmises, suspicion or inferences.

Ad-interim
injunction
directing
parties
to
maintain status quo - notice sent by registered
post to the defendants - defendants harvested
the wheat crop - Held - no material on record
to show that injunction order served on the
defendants - a case of willful disobedience had
not been made out so as to attract the
provisions of Order XXXIX Rule 2A. (Para 14,
15, 16 & 18)

Matter Under Article 227 dismissed. (E-5)
List of cases cited: -

1. C.C. Alavi Haji Vs. Palapetty Muhammed
 and another (2007) 6 SCC 555

2.
U.C.
Surendranath Vs. Mambally's Bakery
AIR 2019 SC 3799
1 All. Makkhan Singh & Anr. Vs. Shyam Singh & Ors.
537
3.FoodCorporation of India Vs. Sukh Deo Prasad (20
09) 5 SCC 665

4.Shalini Shyam Shetty & Anr.Vs Rajendra Shan
kar Patil (2010) 8 SCC 329

5. Radhey Shyam & Anr. Vs. Chhabi Nath & Ors
(2015) 5 SCC 423

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard Sri Manish Dev Singh,
learned counsel for the petitioner and Sri
Sukesh Kumar, learned counsel appearing
for the respondents.

2. The present petition seeks to assail
the order dated 25.10.2019 passed by the
Additional District Judge, Court No. 2,
Aligarh in Misc. Civil Appeal No. 40 of
2019 (Shyam Singh and another vs.
Makkhan Singh).

3. In terms of the aforesaid order, an
appeal
preferred
by
the
defendant
respondents under Order XLIII Rule 1 (r)
C.P.C. has been allowed and the order
dated 10.04.2019 passed by the Civil
Judge (Senior Division) Aligarh in Misc.
Case No. 3800015 of 2016 (Sri Makhhan
Singh and another Vs. Sri Shyam Singh
and others), whereby the defendants had
been held to be guilty and the trial court
had sentenced them to undergo civil
imprisonment for a period of three months,
has been set aside.

4. Contention of learned counsel
appearing for the plaintiff/petitioners is
that the order of ad-interim injunction
granted in favour of the plaintiffs on
28.11.2016
directing
the
parties
to
maintain status quo regarding the disputed
property till the next date was sent by
registered post dated 29.11.2016 and
inspite of that the defendants harvested the
wheat crop standing on the disputed land
which was a clear breach of the ad-interim
injunction and accordingly the trial court
had rightly passed the order under Order
XXXIX Rule 2A and the appellate court
erred in setting aside the same. Reliance
has been placed on the judgment in the
case of C.C.Alavi Haji Vs. Palapetty
Muhammed
and
another1
for
the
proposition with regard to the presumption
of service of notice in a case of a notice
sent by registered post.

5. Per contra, learned counsel
appearing for the defendant respondents
has supported the order passed in the Misc.
Civil Appeal by submitting that the
injunction order having never been served,
the defendants could not be held to be
guilty of breach of the said order and the
finding recorded by the trial court with
regard to sufficiency of service was
erroneous. It is further submitted that there
was no material to prove the exclusive
ownership and possession of the disputed
land by the plaintiffs or that the crops had
been sown by them. Further, it is
submitted that the defendants having been
duly recorded as co-sharers in the revenue
records the trial court could not have
overlooked the same. Reliance has been
placed
on
the
judgment
in
U.C.Surendranath
Vs.
Mambally's
Bakery2 to contend that in order to attract
the provisions under Order XXXIX Rule
2A it should not be a mere case of
'disobedience' but the same should be
demonstrated to be a case of 'willful
disobedience'.

6. The question which was under
consideration in the Misc. Civil Appeal
was as to whether the defendants could be
held to be guilty of disobedience or breach
538 INDIAN LAW REPORTS ALLAHABAD SERIES
of injunction so as to attract the provisions
contained under Order XXXIX Rule 2A.

7. The Court hearing the Appeal in
order to decide the aforesaid question
framed
the
following
points
of
determination.

"1.Whether
there
was
some
injunction order passed by the Court ?

2. Whether the injunction order
was conveyed to or served upon the
appellants/contemnors?

3.
Whether
the
appellants/contemnors had time and means
to obey the order?

4. Whether the disobedience or
breach was deliberate and willful?"

8. The point no. 1 with regard to the
existence of the injunction order was
answered in the affirmative. As regards the
point no. 2, which was as to whether the
injunction order had been served upon the
defendants the appellate court upon
considering the material on record has
drawn a conclusion that it was not clear as
to when and on which date the notices
were served on the defendants and has
accordingly held that there was no
clinching evidence regarding service of
notice. It has taken note of the fact that the
trial court had not given any cogent reason
to arrive at a conclusion that service of
notice on the defendants was sufficient.
Having held the service of notice of the
ad-interim
injunction
order
on
the
defendants to be not sufficient, the
appellate court held that nothing further
was required to be looked into. Further,
taking notice of the fact that the disputed
property was a joint property and no
partition having taken place the order of
status quo would not have the effect of
dispossessing either of the parties and also
taking into consideration that there was
nothing to suggest that the status quo order
was
also
intended
to
restrain
the
continuance of the agricultural activity, the
alleged act of breach was held to be not
deliberate or willful and accordingly the
order of civil incarceration passed by the
trial court has been set aside.

9. The issue which thus falls for
consideration by this Court is as to
whether an allegation of disobedience
merely on the basis of a constructive
notice or a presumption with regard to
service of notice would be sufficient to
attract the provisions under Order XXXIX
Rule 2A or as to whether the said powers
can be invoked only in a case of 'willful
disobedience' where the injunction order
the breach of which is alleged was in the
knowledge of the person against whom the
application has been made.

10. In order to appreciate the
controversy Rule 2A under Order XXXIX
C.P.C. as inserted by The Code of Civil
Procedure (Amendment) Act 1976 [Act
104 of 1976], may be adverted to. For ease
of reference the aforementioned provision
is being extracted below:-

"2A.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, 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
1 All. Makkhan Singh & Anr. Vs. Shyam Singh & Ors.
539
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 party entitled thereto."

11. The scope of the powers
exercised by a court under Order XXXIX
Rule 2A came up for consideration in the
case of Food Corporation of India Vs.
Sukh Deo Prasad3 and it was held that
these powers are punitive in nature akin to
the powers to punish for civil contempt in
the Contempt of Courts Act, 1971 and
therefore the person who complains of
disobedience or breach has to clearly make
out beyond any doubt that there was an
injunction or order directing the person
against whom the application is made, to
do or desist from doing some specific
thing
or
act
and
that
there
was
disobedience or breach of such order. The
Court exercising powers under Order
XXXIX Rule 2A cannot proceed on
surmises, suspicion or inferences. The
observations made in the judgment are as
follows:-

"38. The power exercised by a
court under order 39, Rule 2-A of the
Code is punitive in nature, akin to the
power to punish for civil contempt under
the Contempt of Courts Act, 1971. The
person who complains of disobedience or
breach has to clearly make out beyond any
doubt that there was an injunction or order
directing the person against whom the
application is made, to do or desist from
doing some specific thing or act and that
there was disobedience or breach of such
order. While considering an application
under order 39 Rule 2-A, the court cannot
construe the order in regard to which
disobedience/breach is alleged, as creating
an obligation to do something which is not
mentioned in the "order", on surmises,
suspicions and inferences. The power
under Rule 2-A should be exercised with
great caution and responsibility.

39. It is shocking that the trial
court had entertained an application under
Order 39 Rule 2-A from a person who was
not entitled to file the application, has
accepted an interpretation of the order
which does not flow from the order, and
has created a liability where none existed,
resulting in attachment of the assets of FCI
to an extent of more than Rs.1.12 crores.
The order dated 15.12.2004 cannot be
supported
or
sustained
under
any
circumstances."

12. The provisions contained under
Order XXXIX Rule 2A came up for
consideration in a recent judgment in the
case
of
U.C.
Surendranath
Vs.
Mambally's Bakery2 wherein it has been
stated that for holding a person guilty of
willful disobedience under Order XXXIX
Rule 2A there has to be not mere
'disobedience' but it should be a 'willful
disobedience' and that the allegation of
willful disobedience being in the nature of
criminal liability the same has to be
proved to the satisfaction of the court that
the
disobedience
was
not
mere
'disobedience' but a 'willful disobedience'.
The observations made in this regard in
the judgment are as follows:-

"7. For finding a person guilty of
willful disobedience of the order under
XXXIX Rule 2A C.P.C. there has to be
not mere "disobedience" but it should be a
540 INDIAN LAW REPORTS ALLAHABAD SERIES
"willful disobedience". The allegation of
willful disobedience being in the nature of
criminal liability, the same has to be
proved to the satisfaction of the court that
the
disobedience
was
not
mere
"disobedience"
but
a
"willful
disobedience". As pointed out earlier,
during
the
second
visit
of
the
Commissioner to the appellant's shop, tea
cakes and masala cakes were being sold
without any wrappers/labels. The only
thing which the Commissioner has noted is
that "non removal of the hoarding"
displayed in front of the appellant's shop
for which the appellant has offered an
explanation which, in our considered view,
is acceptable one."

13. It therefore follows that the
powers of Rule 2A of Order XXXIX can
be invoked only in a case of a willful
disobedience and in a case where the
defendant had no knowledge of the
injunction order of which breach was
alleged, a case of willful disobedience
cannot be made out so as to invite the
wrath of the penal action as envisaged in
the said provision.

14. The proceedings under Rule 2A
of Order XXXIX are of a serious nature
and in terms thereof the Court is
empowered to take away the liberty of an
individual and order detention of the
person who violates the order. The power
being of a penal nature the burden lies
heavily on the person who alleges
disobedience to prove the offence beyond
reasonable doubt.

15. The powers under Rule 2A
therefore cannot be exercised on a mere
apprehension or as a matter of course in
the absence of clear proof that the order
which was to be obeyed was clear,
unambiguous and within full knowledge of
the person who is alleged to have
disobeyed the same. There is no room for
inferring an intention to disobey an order
unless the person charged had knowledge
of the order.

16. Before punishment can be
imposed for breach of injunction the party
which complains of the breach would be
required to establish that the order of
injunction
is
not
open
to
two
interpretations
and
the
same
is
unambiguous and the act complained is
not in good faith.

17. Rule 2A under Order XXXIX
C.P.C. as inserted by the Amendment Act,
1976 deals with punitive consequences for
the disobedience or breach of an order of
injunction granted by the civil court. It
provides for attachment of the property of
the person in breach and also for detention
in civil prison. The power under this
provision is somewhat identical to the civil
contempt jurisdiction and enables the civil
courts which are not courts of record to
effectively implement their orders.

18. In the facts of the present case
the Appellate Court having recorded a
conclusion that there was no material to
show that the injunction order had been
served on the defendants, a case of willful
disobedience had not been made out so as
to attract the provisions of Order XXXIX
Rule 2A.

19. The order passed by the
Appellate Court setting aside the order of
the Trial Court, in the said circumstances
cannot be faulted with.

20. As regards the contention raised
on behalf of the plaintiff/petitioners with
1 All. Smt. Munni Devi & Ors. Vs. State of U.P. & Anr.
541
regard to presumption of service of notice
in a case of a notice sent by registered post
there can be no quarrel with the aforesaid
proposition. However, in order to attract
the provisions under Order XXXIX Rule
2A there has to be not mere 'disobedience'
but it should be a 'willful disobedience'
and the act of willful disobedience is
required to be proved by cogent evidence
and a person cannot be held to be guilty of
the disobedience merely on the basis of a
constructive notice or a presumption with
regard to service of notice. In this regard,
reference may be had to the observations
made in the case of Rajendra Sharma Vs.
Satish Chandra Garg & others4.

"13. We have perused these and
we find that in the affidavit the appellant
in para 3 has stated that respondent nos. 1
to 3 were bound by the order dated 23rd
February, 2004 being successor in interest
of the third party. This statement is not a
statement of fact but it is a legal principle
which may amount to constructive notice
of the injunction order dated 23.2.2004 but
for constituting willful disobedience of the
injunction order the disobedience must be
willful and both should be proved by
cogent evidence. A person cannot be held
guilty of such disobedience merely on the
basis of constructive notice or surmises."

21. This Court may also take notice
of
the
fact
that
the
power
of
superintendence conferred under Article
227 is discretionary and is to be exercised
very sparingly on equitable principles. The
power of interference under Article 227 by
exercising this reserve and exceptional
power is to be kept to the minimum and
the Court exercising this power cannot act
as a Court of appeal over the orders of the
Court or tribunal subordinate to it. The
parameters of interference by High Courts
in exercise of its power of superintendence
are to be guided by the principles laid
down in the case of Waryam Singh and
another Vs. Amarnath and another5
and reiterated in Shalini Shyam Shetty &
Anr. Vs. Rajendra Shankar Patil6 and
also in Radhey Shyam & Anr. Vs.
Chhabi Nath & Ors.7

22. Counsel for the petitioner has not
been able to point out any material error or
illegality in the orders passed by the court
below so as to warrant interference in
exercise of power under Article 227 of the
Constitution of India.

23. The petition lacks merit and is
accordingly dismissed.
----------
(2020)1ILR 540

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.12.2019

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

Matters Under Article 227(Crl.) No. 9699 of 2019

Smt. Munni Devi & Ors. ...Petitioners
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioners:
Sri Shivajee Singh Sisodiya

Counsel for the Respondents:
G.A., Sri Kunwar Tejandra Bahadur

A. Criminal Procedure Code, 1973 - Section
197 - Summoning of Area Lekhpal - If Area
Lekhpal, in performance of his official duty,
has got some act done, under conspiracy,
then, that is an act or offence, committed
by a public servant, in performance of his
official duty - for taking cognizance, for
such offence, sanction of the competent