# Smt. Jagannathiya v. The State of U.P. and others

- **Citation:** (2006) 3 ILRA 1070
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-05-25
- **Case number:** Civil Misc. Writ Petition No. 30115 of 2006
- **Bench:** Dr.B.S. Chauhan, Dilip Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-jagannathiya-v-the-state-of-u-p-and-others-40729
- **Pages:** 6

## Headnote

Code of Civil Procedure-Order 39 Rule 2A-Violation of Interim Injunction orderrejection of application on ground after
passing the order-duty of civil court
comes to an end-it is for administration
of Police to ensure its compliance-heldsuch casual and indifferent attitude of
the
Court
below-shocking
beyond
imagination-Civil
Court
to
issue
necessary direction to S.P. concern to
take
all
measures
to
ensure
the
compliance.

Held: Para 17 and 22

In such a fact-situation the civil court
must ensure by all means that interim
order passed by it is complied with and
for
that
purpose,
it
should
issue
necessary instructions to the police if the
facts
so
warrant,
our
conscious
is
shocked and it is beyond our imagination
as how the trial court and appellate
court could take such a casual and
indifferent attitude.

In the fact-situation we have no option
but to direct the civil court to issue
necessary orders to the Superintendent
of
Police,
Kaushambi
to
take
all
measures to ensure the compliance of
3 All] Smt. Jagannathiya V. The State of U.P. and others
1071
the interim orders passed by it at the
earliest, and we direct the said authority
to ensure its compliance forthwith. We
further direct the Superintendent of
Police, Kaushambi to file his personal
affidavit within a period of three weeks
from today as under what circumstances
the interim order passed by the trial
court could not be complied with.
Case law discussed:
AIR 1967 SC-1386
1995 (6) SCC-50
AIR 1961 SC-221
AIR 1997 SC-1240
AIR 1998 SC-2765
AIR 1971 Alld.-231
AIR 1981 All. 309
AIR 1996 K.-256,
1989 (NOC) 50 (Gan)
AIR 1967 Guj.-124
AIR 1985 P.&H. 299
AIR 1973 Alla.-449
AIR 1961 SC-221
AIR 1992 Alld.-326
AIR 1985 P.C.-106

## Text

1070 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
Holdings
Act
is
satisfied
before
exercising power under section 6 of the
U.P.C.H. Act.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.5.2006

BEFORE
THE HON'BLE DR.B.S. CHAUHAN, J.
THE HON'BLE DILIP GUPTA, J.

Civil Misc. Writ Petition No. 30115 of 2006

Smt. Jagannathiya

...Petitioner
Versus
The State of U.P. & others ...Respondents

Counsel for the Petitioner:
Sri M.A. Haseen

Counsel for the Respondents:
C.S.C.

Code of Civil Procedure-Order 39 Rule 2A-Violation of Interim Injunction orderrejection of application on ground after
passing the order-duty of civil court
comes to an end-it is for administration
of Police to ensure its compliance-heldsuch casual and indifferent attitude of
the
Court
below-shocking
beyond
imagination-Civil
Court
to
issue
necessary direction to S.P. concern to
take
all
measures
to
ensure
the
compliance.

Held: Para 17 and 22

In such a fact-situation the civil court
must ensure by all means that interim
order passed by it is complied with and
for
that
purpose,
it
should
issue
necessary instructions to the police if the
facts
so
warrant,
our
conscious
is
shocked and it is beyond our imagination
as how the trial court and appellate
court could take such a casual and
indifferent attitude.

In the fact-situation we have no option
but to direct the civil court to issue
necessary orders to the Superintendent
of
Police,
Kaushambi
to
take
all
measures to ensure the compliance of
3 All] Smt. Jagannathiya V. The State of U.P. and others
1071
the interim orders passed by it at the
earliest, and we direct the said authority
to ensure its compliance forthwith. We
further direct the Superintendent of
Police, Kaushambi to file his personal
affidavit within a period of three weeks
from today as under what circumstances
the interim order passed by the trial
court could not be complied with.
Case law discussed:
AIR 1967 SC-1386
1995 (6) SCC-50
AIR 1961 SC-221
AIR 1997 SC-1240
AIR 1998 SC-2765
AIR 1971 Alld.-231
AIR 1981 All. 309
AIR 1996 K.-256,
1989 (NOC) 50 (Gan)
AIR 1967 Guj.-124
AIR 1985 P.&H. 299
AIR 1973 Alla.-449
AIR 1961 SC-221
AIR 1992 Alld.-326
AIR 1985 P.C.-106

(Delivered by Hon'ble Dr. B.S. Chauhan, J.)

1. This writ petition reveals a very
sorry state of affair, wherein the learned
civil court and the revisional court
expressed their inability to enforce the
order passed by them, leaving the hapless
litigant on the mercy of the so called
police administration.

2. The present petitioner filed a Suit
No. 477 of 2003 along with an application
for injunction, under Order 39, Rules 1
and 2 of the Code of Civil Procedure
(hereinafter called C.P.C.). The said
application was rejected by the trial court
vide
order
dated
15.7.2003.
Being
aggrieved, Revision No. 12 of 2003 was
preferred and the revisional court granted
the
injunction
vide
order
dated
18.11.2004,
to
the
effect
that
the
respondents
were
restrained
from
interfering with the peaceful possession
and occupation of the petitioner in respect
of the premises in dispute. The order
passed by the revisional court was not
complied with. Therefore, petitioner filed
an application under Order 39, Rule 2-A
C.P.C. before the trial court, which stood
rejected vide order dated 2nd July, 2005,
observing that once the order is passed by
the civil court, it is for the police
administration to ensure its compliance.
Therefore, the party may approach the
police authorities. Unfortunately, revision
preferred against the said order also stood
dismissed vide order dated 28.7.2005, and
Writ No. 319 of 2006 under Article 227
of the Constitution also stood dismissed
as withdrawn vide order dated 4.1.2006,
with liberty to the petitioner to approach
the
appropriate
forum.
Hence
this
petition.

3. Learned counsel for the petitioner
has submitted that in spite of the interim
injunction in her favour, the respondents
are harassing and interfering with her
peaceful possession, with all impunity,
and the courts below have expressed their
inability observing that it is the duty of
the police administration to enforce the
orders passed by the courts.

4. Order 39, Rule 2-A deals with the
power to enforce the order passed by the
court and impose the punishment. It is
settled legal proposition that any action
taken in contravention of the order of the
Court is a nullity as having been done in
disobedience of the interim order of the
Court.
(Vide
Mulraj
Vs.
Murti
Raghunathji Maharaj, AIR 1967 SC
1386).

5. Similar view has been reiterated
in Surjit Singh & Ors. Vs. Harbans Singh
& Ors., (1995) 6 SCC 50; and Govt. of
1072 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
A.P. Vs. Gudepu Sailoo & Ors., AIR
2000 SC 2297.

6. A Constitution Bench of the
Hon'ble Supreme Court, in State of Bihar
Vs. Rani Sonabati Kumari, AIR 1961 SC
221, has categorically held that the said
provisions deal with the willful defiance
of the order passed by the civil court.

7. In Tayabbhai M. Bagasarwalla &
Ors. Vs. Hind Rubber Industries Pvt. Ltd.,
AIR 1997 SC 1240, the Hon'ble Supreme
Court dealt with a case of disobedience of
an injunction passed under O. 39 Rr. 1
C.P.C., wherein the contention was raised
that the proceedings under O., 39 R. 2A
cannot be initiated and no punishment can
be imposed for disobedience of the order
because the civil court, which granted the
injunction, had no jurisdiction to entertain
the Suit. The Apex Court rejected the
contention holding that a party aggrieved
of the order has a right to ask the court to
vacate the injunction pointing out to it
that it had no jurisdiction or approach the
higher court for setting aside that order,
but so long the order remains in force, the
party cannot be permitted to disobey it or
avoid punishment for disobedience on any
ground, including that the court had no
jurisdiction, even if ultimately the court
comes to the conclusion that the court had
no jurisdiction to entertain the Suit. The
party, who willingly disobeys the order
and acts in violation of such an injunction,
runs the risk for facing the consequence
of punishment.

8. In Samee Khan Vs. Bindu Khan,
AIR 1998 SC 2765, the Hon'ble Supreme
Court held that in exercise of the power
under O. 39 R. 2-A C.P.C., the civil court
has a power either to order detention for
disobedience of the disobeying party or
attaching
his
property
and
if
the
circumstances and facts of the case so
demand, both steps can also be resorted
to. The Apex Court held as under:-

"But the position under R. 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 rigor of such disobedience may be
toned down if the 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 is
obedience."

9. Thus, in view of the above, it
becomes crystal clear that the proceedings
are analogous to the contempt of court
proceedings but they are taken under the
provisions of O. 39 R. 2-A C.P.C. for the
reason that the special provision inserted
in the Code shall prevail over the general
law of contempt contained in the
Contempt of Courts Act, 1972 (for short,
"the Act, 1972"). Even the High Court, in
such a case, shall not entertain the petition
3 All] Smt. Jagannathiya V. The State of U.P. and others
1073
under the provisions of Act, 1972. [Vide
Ram Rup Pandey Vs. R.K. Bhargava &
Ors., AIR 1971 All. 231; Smt. Indu
Tewari Vs. Ram Bahadur Chaudhari &
Ors., AIR 1981 All. 309; Rudraiah
Company Vs. State of Karnataka & Ors.,
AIR 1982 Kar. 182; Papanna Vs.
Nagachari & Ors., AIR 1996 Kant 256;
and Smt Savitri Devi Vs. Civil Judge
(S.D), Gorakhpur & Ors., (2003) 6 AIC
749 (All)].

10. In Md. Jamal Paramanik & Ors.
Vs. Md. Amanullah Munshi, AIR 1989
(NOC) 50 (Gau), the Gauhati High Court
held that it is not permissible for a court
to impose a fine or compensation as one
of the punishments, for the reason that the
provisions of O. 39 R. 2A do not provide
for it. In Thakorlal Parshottamdas Vs.
Chandulal Chunnilal, AIR 1967 Guj 124,
Hon'ble Mr. Justice P.N. Bhagwati (as His
Lordship
then
was)
held
that
the
punishment
for
breach
of
interim
injunction could not be set-aside even on
the ground that the injunction was
ultimately vacated by the appellate court.
In Rachhpal Singh Vs. Gurdarshan Singh,
AIR 1985 P&H 299, a Division Bench of
Punjab & Haryana High Court held that if
an interim injunction had been passed and
is alleged to have been violated and
application
for
initiating
contempt
proceeding under O. 39 R. 2A has been
filed but during its pendency the Suit
itself is withdrawn, the court may not be
justified to pass order of punishment at
that stage. Thus, it made a distinction
from the above referred Gujarat High
Court's
decision
in
Thakorlal
Parshottamdas
(supra)
that
contempt
proceedings should be initiated when the
interim injunction is in operation.

11. In Sitaram Vs. Ganesh Das, AIR
1973 All 449 the Court held as under:-

"The purpose of Order 39, Rule 2-A,
Civil P.C. is to enforce the order of
injunction. It is a provision which permits
the Court to execute the injunction order.
Its provisions are similar to the provisions
of Order 21, Rule 32, Civil P.C. which
provide for the execution of a decree for
injunction. The mode of execution given
in Order 21, Rule 32 is the same as
provided in Rule 2-A of Order 39. In
either case, for the execution of the order
or decree of injunction, attachment of
property is to be made and the person who
is to be compelled to obey the injunction
can be detained in civil prison. The
purpose is not to punish the man but to
see that the decree or order is obeyed and
the wrong done by disobedience of the
order is remedied and the status quo ante
is brought into effect. This view finds
support from the observations of the
Supreme Court in the case of State of
Bihar v. Sonabati Kumari, AIR 1961 SC
221; while dealing with O. 39, Rule 2(iii),
Civil P.C. (without the U.P. Amendment)
the Court held that the proceedings are in
substance designed to effect enforcement
of or to execute the order, and a parallel
was drawn between the provisions of O.
21, R. 32 and of O. 39, R. 2 (iii), C.P.C.
which is similar to Order 39, R. 2-A. This
curative function and purpose of Rule 2-A
of Order 39, Civil P.C. is also evident
from the provision in Rule 2-A for the
lifting of imprisonment, which normally
would be when the order has been
complied with and the coercion of
imprisonment
no
longer
remains
necessary."

12. In Kochira Krishnan Vs. Joseph
Desouza, AIR 1986 Ker 63, it has been
1074 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
held that violation of injunction or even
undertaking given before the court, is
punishable under O. 39 R. 2-A C.P.C..
The punishment can be imposed even if
the matter stood disposed of, for the
reason that the court is concerned only
with the question whether there was a
disobedience of the order of injunction or
violation of an undertaking given before
the court, and not with the ultimate
decision in the matter. While deciding the
said case, the Court placed reliance upon
the judgment of the Privy Council in
Eastern Trust Co. Vs. Makenzie Mann &
Co. Ltd., AIR 1915 PC 106, wherein it
had been observed as under:-

"An
injunction,
although
subsequently discharged because the
plaintiff's case failed, must be obeyed
while it lasts...."

13. A Constitution Bench of the
Hon'ble Supreme Court in The State of
Bihar Vs. Rani Sonabati Kumari, AIR
1961 SC 221, observed that the purpose
of
such
proceedings
is
for
the
enforcement or effectuation of an order of
execution.

14. Thus, it is evident from the
above discussion that the proceedings are
analogous to the proceedings under the
Act, 1972. The only distinction is that as
the legislature, in its wisdom, has enacted
a
special
provision,
enacting
the
provisions of O. 39 R. 2-A C.P.C., it
would prevail over the provisions of the
Contempt of Courts Act.

15. In K.L. Viramani Vs. III A.D.J.
& Ors., 1992 All 326, this Court held that
once the Court is satisfied that interim
order passed by it is disobeyed, there
could be no justification for the Court not
to initiate proceedings for enforcement of
its order.

16. However, the Court cannot
merely be a silent spectator while the
order passed by the competent Court is
being violated with impunity and the
party is left on the mercy of the so called
administration. There is not only an
obligation but a solemn duty of the Court
to enforce its order by all means. The
Statute itself has conferred all powers
upon the Court to enable it to enforce its
order. The provision itself empowers the
civil court to attach the property of the
person guilty of disobedience or to detain
him in civil prison for a term not
exceeding three months. The provision
was inserted as it was felt to be necessary
in order 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 of mustering the courage
to disobey the interim injunction passed
by the Court.

17. In such a fact-situation the civil
court must ensure by all means that
interim order passed by it is complied
with and for that purpose, it should issue
necessary instructions to the police if the
facts so warrant, our conscious is shocked
and it is beyond our imagination as how
the trial court and appellate court could
take such a casual and indifferent attitude.

18. It is settled legal proposition that
a party cannot be rendered remedy less.
(Vide Rameshwar Lal Vs. Municipal
Council, Tonk & Ors., (1996) 6 SCC
100). The petitioner had been running
from pillar to post for enforcement of the
interim order passed by the revisional
court but in vain. Undoubtedly, the writ
Court should not interfere in the matter
3 All] Smt. Jagannathiya V. The State of U.P. and others
1075
where suit is pending. (Vide K.S. Rashid
& Sons Vs. Income Tax Investigation
Commission & Ors., AIR 1954 SC 207;
A.V. Venkateswaran, Vs. Ramchand
Sobhraj Wadhwani & Anr., AIR 1961 SC
1506; M/s. Tilokchand Motichand & Ors.,
Vs. H.B. Munshi, AIR 1970 SC 898; Jai
Singh Vs. Union of India & Ors., AIR
1977 SC 898; and Bombay Metropolitan
Region Development Authority, Bombay
Vs. Gokak Patel Volkart Ltd., & Ors.,
(1995) 1 SCC 642).

19. However, in Awadh Bihari
Yadav Vs. State of Bihar & Ors., AIR
1996 SC 122, the Hon'ble Supreme Court
held that in extraordinary circumstances,
writ Court may exercise its discretionary
jurisdiction
even
if
the
party
has
approached the other forum. The Court
held as under:-

"There
must
be
extraordinary
situation or circumstances, which may
warrant a different approach, where the
orders passed by a Court are sought to
be violated or thwarted with impunity.
The Court cannot be a silent spectator in
such extraordinary situation." (Emphasis
added)

20. If such a course is not resorted
to, the very existence of the the Courts,
i.e., judicial system will come in the
jeopardy.

21. Learned Standing Counsel takes
notice on behalf of respondent nos. 1 to 7.
Issue notice to respondent nos. 8 to 12
returnable in four weeks.

22. In the fact-situation we have no
option but to direct the civil court to issue
necessary orders to the Superintendent of
Police, Kaushambi to take all measures to
ensure the compliance of the interim
orders passed by it at the earliest, and we
direct the said authority to ensure its
compliance forthwith. We further direct
the Superintendent of Police, Kaushambi
to file his personal affidavit within a
period of three weeks from today as under
what circumstances the interim order
passed by the trial court could not be
complied with.

23. List the matter on 6th July, 2006.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.04.2006

BEFORE
THE HON'BLE AJOY NATH RAY, C.J.
THE HON'BLE ASHOK BHUSHAN, J.

Special Appeal No. 178 of 2006

Jagdish Singh ...Petitioner/Appellant
Versus
The State of U.P. & others ...Respondents

Counsel for the Appellant:
Sri S.K. Verma
Sri R.K. Ojha
Sri Siddharth Verma
Sri Shailendra Kumar Singh

Counsel for the Respondents:
Sri Ran Vijay Singh
S.C.

U.P. Intermediate Education Act, 1921,
Regulation
101-Prior
Approvalappointment on the post of class 3 and
Class
4th
post-prior
approval
contemplates-after the completion of
selection
and
before
issuance
of
appointment
letter
to
selected
candidates, D.I.O.S. granted permission
for
fresh
advertisement-selection
completed and such candidate already
joined-held-working without approval-