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. The question whether a party has understood an order in a particular manner, and has conducted himself in accordance with such a construction is primarily one of fact. The party setting up such a plea has to prove it.
Citation : AIR 1994 Ori 173
IN THE HIGH COURT OF ORISSA
Misc. Appeal No. 170 of 1990
Decided On: 04.01.1994
Prafulla Kumar Mohapatra
Vs.
Jaya Krushna Mohapatra and Ors.
Vs.
Jaya Krushna Mohapatra and Ors.
Hon'ble Judges/Coram:
Dr. Arijit Pasayat, J.
Dr. Arijit Pasayat, J.
1. In a fight between son the appellant and father (respondent No. 1), the role of respondent Nos. 2 and 3 has been described to be that of abettors in the act of alleged violation of order of injunction passed by the learned Subordinate Judge, Bhubaneswar. The appellant as plaintiff has filed Original Suit No. 278 of 1987 before the learned Subordinate Judge praying for a decree of partition of the suit property, claiming one-third share in respect of the ground floor and full interest in respect of the first floor. Respondent No. 1 is defendant No. 1, and his wife is defendant No. 2. Plaintiff filed an application under Order 39, Rules 1 and 2, Code of Civil Procedure, 1908 (in short, 'CPC') seeking temporary injunction, wherein respondent No. 1 was impleaded as the sole opposite party. The prayer in essence was to restrain the said opposite party, defendant No. 2 and agents from alienating the property in any manner till final disposal of the suit. By order dated 21-10-1987 an order of ad interim injunction was passed ex parte against defendant No. 1, defendant No. 2 and agents restraining them from alienating the suit property in any manner. Notwithstanding such order of injunction, the property was sold by registered sale deed dated 19-5-1988. It is the case of the plaintiff that since the defendants avoided to take notice of the suit and the misc. case, notice was given in a newspaper giving details of the proceeding on 28-1-1988. Even after such publication, the defendant No. 1 did not appear either in the misc. case or in the suit. After the ad interim order of injunction was passed, a notice was given in the newspaper on 11-3-1988, for information of the general public and any intending purchaser of the suit schedule properties, to the effect that there was an order of injunction in respect of the said properties. Since the sale took place on 19-5-1988, an application for appropriate action against defendant No. 1 (respondent No. 1), the purchaser (respondent No. 2) and her husband (respondent No. 3) was filed. The learned Subordinate Judge held that respondent No. 1 had in fact violated the order of injunction, and directed attachment of his property valued at Rs. 10,000/-. So far as other two opposite parties in the misc. case are concerned, it was held that there was no violation by them, as it has not been proved that they had knowledge about the order of injunction.
2. The learned counsel for the plaintiff-appellant has urged that the approach of the learned Subordinate Judge is erroneous, as the effect of the evidence of an advocate who clearly stated about knowledge of respondents 2 and 3 has not been considered in its proper perspective, and similarly the effect of notice in the newspaper has not been considered. The learned counsel for the respondents 2 and 3 on the other hand submitted that the restraint was on sale and therefore, it cannot be said that there was any violation so far as respondents 2 and 3 are concerned. It is also submitted that they were not parties in the misc. case, where the impugned order was passed, and therefore, the proceeding was misconceived so far as they are concerned.
3. I shall first deal with the submission whether a person who is not a party to the proceeding can also be proceeded against for his alleged act of violating the order of injunction. The word 'person' as appearing in Sub-rule (1) of Rule 2A of Order 39 is wide enough to engulf a person, who is an agent, a servant and a workman. Rule 2A was introduced by the Amending Act of 1976. It takes the place of Sub-rules (3) and (4) of Rule 2 of Order 39. The said sub-rules have been deleted from rule 2 by the said Amending Act. In addition to reproducing the provisions of Sub-rules (3) and (4) of Rule 2, the new Rule 2A provides for the breach of an order of injunction passed under Rule 1 of the said Order, and it also provides penalty for the breach or disobedience of an order of injunction made under Rule 1 or Rule 2. While considering a case under Sub-rules (3) and (4) of Rule 2, as it existed prior to the amendment, the apex Court in The State of Bihar v. Sonabati Kumari MANU/SC/0002/1960, held that the expression 'person' appearing in Order 39, Rule 2(3) has been employed merely compendiously to designate every one in the group defendant, his agents, servants and workmen and not for excluding any defendant against whom the order of injunction has primarily been passed. In Kamini Debt (and after her) Nanda Kishore Dash v. Puma Chandra Nath MANU/OR/0441/1986 : 63 (1987) CLT 326 and Kumarber Sehoo v. State of Orissa MANU/OR/0404/1990 : 69 (1990) CLT 726 a similar view was expressed by this Court. If such were not the law, orders of injunction would be rendered nugatory by their being contravened by the agents and servants of the parties, and it could be conveniently defied by setting up a third party. This legal position is brought out by the terms of an injunction order set out in Form 8 of Appendix F to the CPC. Whether a person not impleaded in the suit and not named in the injunction order can be proceeded against under Order 39, Rule 2A for violation of the order depends on the facts and circumstances of the case. An injunction is an equitable relief and it is trite law that equity acts in personam. Therefore, an injunction is a personal matter.
An injunction is a judicial process whereby a person is ordered to be restrained from doing or to do a particular act or thing in a particular manner. The former is called the "restrictive injunction" and the latter a "mandatory injunction". An interlocutory or interim injunction is to preserve matters "in site" until the case can be tried. 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 an agent or servant or workman of the person against whom 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 order of injunction. Violation of an injunction is punishable under the Code itself. Nature of the proceeding and quality of evidence which are required to be proved and established may be of the standard of a criminal proceeding, though the proceeding is punitive in nature. However, stricter proof than civil actions is necessary. Though the proceedings under Order 39, Rule 2A have a punitive aspect as is evident from the contemner being liable to be ordered in civil prison, they are designed to effect the enforcement of or to execute the order. This is clearly brought out by their identity with procedure prescribed by Order 21, Rule 32 for the execution of a decree of a permanent 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. The question whether a party has understood an order in a particular manner, and has conducted himself in accordance with such a construction is primarily one of fact. The party setting up such a plea has to prove it.
4. Coming to the facts of the case, it is seen that the evidence of P. W. 2 shows that he was not the advocate engaged by any of the parties in the case. The learned subordinate Judge on elaborate analysis of his evidence has come to hold that his evidence lacks credibility and cogency. The learned counsel for appellant stresses his disinterestedness in the proceeding and submits that the learned Subordinate Judge should not have discarded his evidence as not true. As indicated above the learned subordinate Judge has thoroughly analysed his evidence to come to hold that his evidence lacks credibility. I find no reason to differ from the conclusion.
5. It is stressed by the learned counsel for appellant that in view of the admitted position of the offender, i.e., respondent No. 1 that he had knowledge about the order of injunction, the inevitable conclusion is that the purchaser had the requisite knowledge of the same before purchase. It is pointed out that respondent No. 2 did not himself choose to come to Court. I find that her husband who was impleaded as opposite party No. 3 (respondent No. 3 in the appeal) was examined and has placed materials about lack of knowledge of both of them, about the order of injunction. It is the case of appellant that since there was a public notice in newspaper, the presumption is that the respondents had knowledge about it. Though it is not in dispute that such an advertisement was made, there is no evidence to show that the respondents had occasion to read the public notice, and after having done so violated the order of injunction. There was no direction by any Court to publish such notice. The effect of substituted service in terms of Order 5, Rule 20, CPC has no application to the facts of the present case. Sub-rule (1A) laying down the class of newspapers where service by advertisement is to be ordered under Sub-rule (1), has been inserted by CPC (Amendment) Act, 1976. Where the Court resorted to an alternative manner of substituted service, e.g., by advertisement in a newspaper, the same must be a daily newspaper, which must be circulating in the locality, and the locality must be one Where the defendant is last known to have resided; or carried on business or worked for gain. Service substituted by order of the Court shall be as effectual as if it had been made on the party personally. As indicated above, there was no order by Court to advertise in the newspaper. So Sub-rule (2) of Rule 20 of Order 5 has no application.
6. Since material has not been placed to show that there was wilful violation of the order of injunction by respondent Nos. 2 and 3, the learned Subordinate Judge has rightly refused to proceed against them. The appeal fails and is dismissed. Appeal dismissed.
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