Important Point
Learned single Judge was wrong in holding that Court cannot order detention in civil prison of persm breaking injunction order without ordering attachment of his property under Rule 2A of Order 39 CPC, 1908. But he was right in accepting unconditional apology when ob­struction has subsequently been removed.

Order

Two neighbours are engaged in a long drawn fight in civil court on a small issue. The fight started at the lowest level (Munsiff’s Court) and they have now reached this apex Court with a side issue which emanated therefrom. Defendant in the suit has defined an order of ad-interim injunction and plaintiff in the suit moved for punitive action against him. The trial Court ordered him to be put in prison for one month. The order was confirmed by the appellate Court, but the High Court in revision quashed it. Plaintiff is still chasing his adversary on that issue and he has reached this court with the Special Leave Petition against the High Court’s order.

2. The subject-matter of the suit is a small space of land used as a means of access (gali) which abuts the house of both the parties. Plaintiff who filed the suit prayed for an ad-interim injunction order restraining the defendant from causing any obstruction to the use of the said space as a gali. The trial Court which granted the tempo­rary injunction order on 16.10.1984 required the defendant to maintain status-quo in regard to the suit property and subsequently the ad-interim order was made absolute. But within a month thereof plaintiff complained to the court that defendant had put up a brick wall in the disputed space in utter defiance of the injunction order and moved for initiating action under Order 39 Rule 2A of the Code of Civil Procedure (for short ‘the Code’). The trial Court found that defendant had put up the obstruction wall in disobedience of the order of injunction and directed him to be detained in civil prison for a period of one month. The said order was confirmed in appeal by the Civil Judge (Senior Division).

3. Before the High Court, defendant adopted a twin approach though he did not dispute the factual position that the impugned obstruction was made by him. Firstly, he raised a contention that the court cannot order his detention without ordering attachment of his property. Alternatively, he plead­ed for mercy of the court on the facts that the obstruction has subsequently been removed and he has tendered uncondi­tional apology to the court. Learned single Judge of the High Court of Rajasthan who heard the matter, accepted both pleas and exonerated him from punishment.

4. Learned counsel for the petitioner contended first that the view taken by the High Court that no Court can direct a contumacious party to be detained in prison without ordering his property to be attached, is contrary to law and settled legal position. He cited certain decisions of different High Courts in supports of his contention. In fact, those decisions were cited before the High Court also but learned single Judge dissented from them and concluded that attachment of property to the defiant party in sine qua non for re­sorting to the action of sending him to prison.

5. Order 39 Rules 1 and 2 of the Code deal with powers of the Court to grant temporary injunction. Rule 2A has been inserted in the Order as per Act 104/1976. Rule 2A reads thus:-

“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, 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.

(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 property entitled ther