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IN THE HIGH COURT OF BOMBAY
(PANAJI BENCH)
, J.
Margao Municipal Council through its Chief Officer,
Shri P.W. Rane Sardessai another..... Petitioners.
Versus
Shri Pandurang Kusta Alve others..... Respondents.
Civil Revision Application No. 4 of 1999, decided on 30-7-1999.
Advocates appeared :
S.G. Dessai, Sr.A. with S.D. Padiyar, for the petitioners.
Smt. A.A. Agni, for the respondents.
Held, that neither the records discl9sed nor the respondents had been able to point out any such undertaking by the petitioners or anyone on their behalf. All that the respondents could point out was an order recording "no objection in granting injunction" by the Advocate for the petitioners. Certainly "no objection in granting injunction" can by no stretch of imagination tantamount to giving an undertaking as such by or on behalf of the petitioners to the effect that they would not interfere with the suit shops. It would only mean that the concerned Advocate had informed the trial Court that the petitioners would submit to the order of injunction which the trial Court may pass in the matter. There was no categorical and specific statement on behalf of the petitioners before the trial Court that the petitioners would either refrain themselves from removing the suit shops or that they would not interfere with the suit shops till the disposal of the suit. The records disclosed that there was no undertaking by the petitioners either of the nature sought to be contended by the respondents or of any other type or of any other nature in relation to the suit shops. It is now well established that a party cannot be committed for contempt on the ground that upon one of the possible constructions, a breach of the undertaking given to the Court had been committed. For the purpose of relief of that type, the undertaking must be clear beyond all questions and doubts. In order that an undertaking could be enforceable or its breach could be made actionable, its terms must be filed in the Court and proved with precision and clarity and reasonable certainty. Besides the breach of undertaking must be willful and not unintentional. The order which was stated to be violated and quoted above specifically stated that" Advocate for the defendant states that he has no objection in granting injunction. Order passed. Injunction order is confirmed till the decision of the suit". What is the nature of injunction granted? What is its scope? Against whom it is granted? For what purpose it as been granted? On what basis it has been granted? What is the cause for grant of injunction? The order was totally silent about all these and many other relevant points. An injunction which is a judicial process has necessary to be by proper exercise of its jurisdiction by the Court. A proper exercise of jurisdiction would certainly mean the application of mind to the facts involved and the law applicable thereto and not a mechanical process of scribbling few words on a sheet of paper, be it a roznama or otherwise. It should necessarily be on the basis of rights of the parties and the law applicable to it and not merely because the party fancies to be armed with such an injunctive order against the other party who does not mind to gift the plaintiff with such injunctive order against itself. It cannot be an order just for somebodys pleasure. The order dated 6.3.1973 did not disclose any adjudication of the matter by the Court nor it disclosed any specific direction to the petitioners and for that matter to any other person. It simply stated that the order was passed and injunction order was confirmed. Moreover, the records disclosed and it was an undisputed fact that no ex parte order of injunction was ever granted in the said suit by the trial Court and therefore there was no occasion for confirmation of an order of injunction passed ex parte. It was also a matter of record that the trial Court had never passed any other order on 6.3.1973 apart from the one entered into the roznama sheet of the said day. In fact, it was a mere endorsement in the roznama sheet regarding the proceedings in the Court. The roznama sheet of a suit or any miscellaneous proceedings is primarily meant to disclose the happenings in the Court in a particular matter on a particular date. Of course, nothing forbids the Court from recording any order of injunction in the roznama sheet; but it has to be an order of injunction and not merely a narration of having passed an order. A narration of the fact of having passed an order does not amount to an order of injunction. The act of passing an order is one thing and the order of injunction itself is another thing. The entire proceedings under Order XXXIX, Rule 2-A of the Code of Civil Procedure were initiated on the premise that there was an order dated 6.3.1973 and that the same was disobeyed by the petitioners. As already seen above there was no order of temporary injunction passed against the petitioners in the case in hand on 6.3.1973 and mere narration of the fact of having passed the orders of injunction did not tantamount to the order of injunction itself. Having proceeded in the matter without considering this basic aspect of the case, both the Courts below had acted with material irregularity and in illegal exercise of its jurisdiction. If there was no order of injunction or that the petitioners had no knowledge of any such order of injunction, there was no reason for the petitioners not to take any action in respect of the suit shops for all those years. The existence of an order of the Court cannot be established merely by referring to the conduct of the parties. The respondents cannot reap bonus from the negligence on the part of the petitioners and their officers in taking timely action in the matter. The case of the petitioners was that they had acted bona fide in exercise of their duties under the Municipalities Act and keeping in view the said order of this Court. The entire proceedings under Order XXXIX, Rule 2-A initiated against the petitioners on account of alleged disobedience of the order of injunction stated to have been passed on 6.3.1973 quashed being ab initio void and not maintainable and for the same reason the order passed therein by the trial Court as well as the impugned order of the lower Appellate Court also quashed. AIR 1961 SC 221, AIR 1976 SC 1909, 1997 (2) Mh LJ (SC) 1 : AIR 1997 SC 1240, AIR 1986 Cal220, (1997) 4 SCC 444, Ref.,
2.The case of the plaintiffs/respondents is that the trial Court had granted temporary injunction by the order dated 6-3-1973 on the basis of the undertaking given by the petitioners not to remove or interfere with the suit shops till the disposal of the said suit; however, on 22-7-97 the petitioners all of a sudden accompanied by the Mamlatdar, Policemen and labourers, demolished the suit shops without any prior notice. On the other hand, it is the case of the petitioners that neither the petitioner No. 2 came across any such order of temporary injunction, nor the respondent could produce any copy of any order and since the suit shops were erected on the Municipal drain, in exercise of their powers and duties under the Municipalities Act and in view of the direction issued by this Court by its Order dated 4-6-97 in Writ Petition No. 148/97, the suit shops were removed.
3.The trial Court held that the petitioners had knowledge of the Order dated 6-3-73 and inspite of that, they disobeyed the said Order and that the Order dated 4-6-97 in Writ Petition No. 148/97 passed by this Court does not apply to the matters which are sub judice and therefore the remedy would lie in undoing the wrong of restoring the status quo ante and directed the petitioners to re-erect the suit shops and restore the same as existed prior to the demolition on 22-7-1997 within thirty days from the date of the order.
4.The lower Appellate Court while confirming the order by the trial Court, held that the respondents have proved that the trial Court had granted temporary injunction on 6-3-73 and the petitioners have wilfully disobeyed the said order and the action on the part of the petitioners being illegal, the same cannot be protected. The lower Appellate Court has also held that the fate of the suit depends upon the existence of the suit shops and that merely because the said order dated 6-3-73 states that the injunction order is confirmed till the decision of the suit though there was no ex-parte order passed earlier, it cannot be said that no order of injunction was passed.
5.The order which is stated to have been disobeyed by the petitioners by demolishing the suit shops, is one recorded in the roznama sheet of 6th March, 1973 in the records of R.C.S. No. 49/73 and it reads thus :---
"6-3-73 :
Called on today before me.
Advocate of both the parties are present.
Advocate for the defendant states that he has no objection in granting injunction. Order passed. Injunction order is confirmed till the decision of the suit.
Suit is adjourned for written statement on 29-3-1973."
6.Though it was strenuously argued by Smt. A.A. Agni, the learned Advocate on behalf of the respondents that the said order was passed on the basis of an undertaking given by the petitioners that they shall not remove or interfere in any manner with the suit shops of the respondents till the disposal of the suit, neither the records placed before me disclose nor the respondents have been able to point out any such undertaking by the petitioners or any one on their behalf. All that the learned Advocate for the respondents could po
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