1956 Supreme(Pat) 91

PATNA HIGH COURT
Sinha and Misra JJ.
Sheobrich Singh
Versus
Basgit Singh
Civil Revision No. 397 of 1953 ;
Decided On : JUNE 28, 1956

The transferee Court has the jurisdiction to punish for disobedience of the order of injunction in terms of Order 39, Rule 2(3) of the Code of Civil Procedure, 1908, as the transfer of a suit implies the transfer of all proceedings which arose out of the suit, including an order for injunction.

Headnote:

INJUNCTION - Breach of - Punishment - Transfer of suit - Jurisdiction of transferee Court - Order 39, Rule 2(3), Civil Procedure Code, 1908 - Sec. 150, Civil Procedure Code, 1908 - Sec. 13(2), Bengal, Agra and Assam Civil Courts Act, 1887.

Fact of the Case:

The plaintiff filed a suit for declaration of title and recovery of possession over an area of one katha comprised in plot Nos. 2448 and 2452 of village Kurmuri in the district of Shahabad. The defendants encroached upon the disputed portion by demolishing the boundary ridge between these two plots and plot No. 2451 belonging to the defendants. An injunction was issued by the Court restraining the defendants from going on with their construction by way of digging foundation and raising walls etc. over the encroached portion. The defendants preferred an appeal against the order of injunction and the learned Additional Subordinate Judge, Fifth Court, Arrah, allowed the appeal. The case was remanded to the court of the learned Munsif with a clear direction that if the disputed construction was found to lie in plot Nos. 2448 and 2452, the order of injunction was to continue as before and in case it was found to lie in plot No. 2451, which was claimed by the defendants, the order of injunction was to be vacated. On remand, the learned Munsif issued a fresh commission in accordance with the direction of the appellate Court to the same pleader commissioner Mr. Amir Chand Lal to ascertain the position in the light of the observation made by the appellate Court. Subsequently, the defendants also filed a petition praying that fixed points for the measurement of the plots with reference to the survey map should be reliable points and made certain suggestions as to the fixed points to be accepted by the learned pleader commissioner. The Court accepted the prayer and issued direction to that effect to the learned pleader commissioner. The learned pleader commissioner submitted a report in the light of this direction (exhibit A) on the 22nd August, 1952, together with a map attached to the report. According to this report, none of the alleged constructions fell within plot Nos. 2448 and 2452 but that they were situate in plot No. 2451 belonging to the defendants-opposite party. The learned Munsif, Mr. G. Prasad. however, rejected the report of the commissioner and affirm-ed the order of injunction. The defendants went up in appeal against the order of the learned Additional Munsif and the learned Additional Subordinate Judge, Arrah, by his judgment and order dated the 13th March, 1953, vacated the order of injunction accepting the report of the learned pleader commissioner for the purposes of the injunction matter. The prayer of the petitioner, however, for further action under Order 39, Rule 2(3) of the Code of Civil procedure was, in the meantime, taken up by the learned Additional Munsif to whose Court the case transferred, as I have mentioned above, from the Court of the permanent Munsif, Arrah, who had issued the order of injunction. He held an enquiry again and recorded some evidence. In the course of the orders passed by him, he relied on the evidence of the pleader commissioner Mr. Amir Chand Lal recorded in the injunction matter on the 13th of September, 1952, in which he had referred to his previous report dated the 23rd January, 1952, and that the verandah and nad charan would partly fall in plot Nos. 2452 and 2448 and the rest in plot No. 2451. But he stated clearly that "the case map (exhibit A) is more in keeping with the locality than the other maps prepared and filed by me. According to this map the verandah and nad charan prepared by the defendants will fall in plot No. 2451." The learned Munsif, however, acting upon his statement in regard to the map dated the 23rd January, 1952, held that even according to Mr. Amir Chand Lal, who was a witness for the defendants, it was clear Chat the impugned constructions stood in plot Nos. 2452 and 2448, which amounted to a clear violation of the order of injunction as the constructions were made between the 13th of July, 1952, and the 18th of July, 1952, as alleged by the plaintiff. In that view of the matter, the learned Munsif passed an order on the 21st September, 1952, whereas Mr. K. S. Pandey, the 5th Additional Subordinate Judge nad allowed the appeal of the defendants with the direction mentioned above on the 12th June, 1952. The learned Munsif came to the conclusion thus that the defendants having violated the order of Injunction by putting up the roof over, the verandah and constructing a staircase, were liable under the provisions of Order 39. Rule 2 (3) of the Code of Civil Procedure. Accordingly, he ordered the opposite party Basgit Singh, one of the defendants, to be detained in civil prison for a period of one month.

Finding of the Court:

The Court held that the transferee Court had the jurisdiction to punish for disobedience of the order of injunction in terms of Order 39, Rule 2(3) of the Code of Civil Procedure, 1908. The Court further held that the defendants were not liable to be punished under Order 39, Rule 2(3) of the Code of Civil Procedure, 1908, as the constructions in question were made bona fide, assuming that they were put up after the order of remand by the learned Additional Subordinate Judge of Arrah in which there was a clear direction that if the constructions were on plot No. 2451, the order of injunction must be vacated.

Issues: 1. Whether the transferee Court had the jurisdiction to punish for disobedience of the order of injunction in terms of Order 39, Rule 2(3) of the Code of Civil Procedure, 1908? 2. Whether the defendants were liable to be punished under Order 39, Rule 2(3) of the Code of Civil Procedure, 1908?

Ratio Decidendi: 1. The Court held that the transferee Court had the jurisdiction to punish for disobedience of the order of injunction in terms of Order 39, Rule 2(3) of the Code of Civil Procedure, 1908, as the transfer of a suit implied the transfer of all proceedings which arose out of the suit, including an order for injunction. 2. The Court held that the defendants were not liable to be punished under Order 39, Rule 2(3) of the Code of Civil Procedure, 1908, as the constructions in question were made bona fide, assuming that they were put up after the order of remand by the learned Additional Subordinate Judge of Arrah in which there was a clear direction that if the constructions were on plot No. 2451, the order of injunction must be vacated.

Final Decision: The Court dismissed the application and discharged the rule. Parties to bear their own costs.