Point of Law; application under Order XXXIX Rule 2A of CPC is filed, the Court shall register that as Miscellaneous and issue notice of the same to the defendants contemnors since no such procedure was followed, the application was not maintainable.

JUDGMENT :

Aggrieved by the order of the trial Court dismissing their application against the defendants under Order XXXIX Rule 2A of CPC, the plaintiffs have preferred the above appeal.

2. The appellants were the plaintiffs and the respondents were the defendants in O.S.No.4191/2007 before the trial Court. For the purpose of convenience, the parties will be referred to henceforth with their ranks before the trial Court.

Brief facts of the case:

3. Plaintiffs filed O.S.No.4191/2007 against the defendants before the VIII Additional City Civil & Sessions Judge, Bengaluru for declaration that the registered memorandum of understanding dated 30.04.2004 entered into between them and the defendants for joint development of the suit schedule property and the registered power of attorney dated 30.04.2004 relating to the suit schedule property are revoked, rescinded and terminated and that the defendants have no right to act and represent the plaintiffs in respect of the same. They also sought direction to the defendants to deliver the original title deeds of the schedule property, permanent injunction against interference in their possession and enjoyment and against alienation of the suit schedule property.

4. Along with the suit, the plaintiffs filed I.A.Nos.1 and 2 seeking injunction to restrain the defendants from alienating and changing the nature of the suit schedule property. The trial Court issued emergent notice of I.A.Nos.1 and 2 and suit summons to the defendants.

5. Defendants appeared through their Counsel. On two hearing dates their Counsel undertook that the defendants will not alienate the suit schedule property and the Court recorded the same. On 17.11.2007, the defendants’ Counsel failed to appear and Court granted temporary injunction against alienation of the property and that was extended from time to time.

6. On 10.12.2007, the plaintiffs filed I.A.No.3 before the trial Court under Order XXXIX Rule 2A read with Section 151 of CPC to take action against the defendants for disobedience of the order of injunction dated 17.11.2007 and to detain defendant Nos.2 and 3 in the civil prison for violation of their undertaking.

7. In support of I.A.No.3, plaintiff No.1 filed affidavit alleging that violating their own undertaking and the order of the Court restraining them from alienating the suit schedule property, the defendants have sold portions of the suit schedule property under registered sale deeds dated 10.07.2007 and 19.11.2007, thereby the defendants are guilty of willful disobedience of the order of the Court and liable to be punished.

8. The defendants did not file any objections to the said application. For the purpose of enquiry, the trial Court registered I.A.No.3 in separate proceedings and numbered that as Misc.No.38/2011 and conducted the enquiry.

9. On behalf of the applicants, plaintiff No.1 was examined as PW.1 and Exs.P1 to P13 were marked. Defendant No.3 was examined as DW.1 and on their behalf Exs.D1 to D8 were marked.

10. The trial Court on hearing the parties by the impugned order rejected the application on the following grounds:

(i) The defendants did not subscribe their signatures to the memo of undertaking dated 11.07.2007 and 13.08.2007, therefore, the knowledge of undertaking cannot be imputed to them;

(ii) The order dated 17.11.2007 was an exparte temporary injunction order;

(iii) The plaintiffs had not complied the requirement of the notification of the order to the defendants. Therefore, the knowledge of the temporary injunction order dated 17.11.2007 cannot be imputed to the defendants;

(iv) The photographs produced by the plaintiffs show that there was no construction in the suit schedule property;

(v) The defendants have sold the flats assigned to their share under the joint development agreement;

(vi) The description of the suit schedule property was incomplete.

(vii) For such reasons the benefit o