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High Court Of Delhi
BIMAL CHANDRA SEN - Appellant
Versus
KAMLA MATHUR - Respondent
CRIMINAL APPEAL 2 of 1982
Decided On : 05/25/1982
CONTEMPT OF COURT - INJUNCTION - DISOBEDIENCE - CIVIL AND CRIMINAL CONTEMPT - DISTINCTION - AIDER AND ABETTOR - LIABILITY - JURISDICTION - CODE OF CIVIL PROCEDURE, ORDER 39, RULES 1, 2, 2A - CONTEMPT OF COURTS ACT, 1971, SECTIONS 10, 12 - CONSTITUTION OF INDIA, ARTICLE 215.
Fact of the Case:
The plaintiff, Dr. Bimal Chandra Sen, owns property No. 4405 in Darya Ganj, Delhi. He says that he gave a portion of his property on lease and licence to one Mrs. Kamla Mathur wife of Shri Rama Shankar Mathur. The plaintiff alleges that Mrs. Mathur was making illegal construction in the property. On 6-4-1981 he brought a suit in the court of the subordinate judge, Mr. S. N. Gupta, for permanent injunction restraining Mrs. Mathur, her servants and agents, from carrying on any construction activities in the property.
Finding of the Court:
1. The disobedience of an injunction order is a contempt of court. 2. Rule 2a of Order 39 of the Code of Civil Procedure (CPC) confers on courts the power to punish such contempt and, further, prescribes the punishment to be awarded therefor. 3. The court which passes the injunction order shall have power to commit for contempt in case of breach. 4. Order 39 rule 2 (3), CPC is a far more adequate and satisfactory remedy in cases of disobedience of injunction. 5. A person who has got an effective alternative remedy of the nature specified under Order XXXIX, Rule 2-A or under Order XXI. Rule 32. CPC should not be permitted to skip over that remedy and take resort to initiate proceedings under the Contempt of Courts Act. 6. When special procedure and special provision is contained in the CPC itself under Order XXXIX rule 2-A for taking action for the disobedience of an order of injunction, the general law of contempt of court cannot be invoked. 7. The terms of Order 39 rule 2 do not contemplate punishment of one who, not being a party bound by injunction, incites or aids in the commission of its breach. 8. A person not a party to the suit cannot be proceeded against for contempt for aiding and abetting the breach. 9. The jurisdiction to punish for disobedience of the injunction order vests in the court which ranted the injunction. 10. Civil contempt is defined in Section 2 (b) of the Contempt of Courts Act, 1971. 11. Criminal contempt means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which (i) scandalises or tends to scandalise, or lowers or tends to lower the authority any court; or (ii) prejudices, or interferes or lends to interfere with the due course of any judicial proceeding; or (iii) interferes or tends to interfere with, or obstructs or tends to obstruct the administration of justice in any other manner. 12. The distinction between civil and criminal contempt is that civil contempt consists of failure to comply with an order of the court, while criminal contempt consists of publications or acts which interfere with the due course of justice. 13. The disobedience of injunction is a civil contempt. 14. An aider and abettor will also be guilty of a civil contempt because the principal is guilty of civil contempt. 15. The Act makes a clear distinction between civil and criminal contempt. 16. The Code of Civil Procedure does not contemplate the High Court punishing for contempt under the Act or Constitution committed of the sub judge's order.
Issues: 1. Whether the petition under Sections 10 and 12 of the Contempt of Courts Act, 1971 (the Act) read with Article 215 of the Constitution is maintainable in the High Court on the averments made by the plaintiff. 2. Whether the wife is guilty of civil contempt and the husband of criminal contempt as an "aider and abettor". 3. Whether an aider and abettor can be proceeded against under the Act.
Ratio Decidendi: 1. The disobedience of an injunction order is a contempt of court and the court which passes the injunction order shall have power to commit for contempt in case of breach. 2. Order 39 rule 2 (3), CPC is a far more adequate and satisfactory remedy in cases of disobedience of injunction. 3. A person who has got an effective alternative remedy of the nature specified under Order XXXIX, Rule 2-A or under Order XXI. Rule 32. CPC should not be permitted to skip over that remedy and take resort to initiate proceedings under the Contempt of Courts Act. 4. When special procedure and special provision is contained in the CPC itself under Order XXXIX rule 2-A for taking action for the disobedience of an order of injunction, the general law of contempt of court cannot be invoked. 5. The terms of Order 39 rule 2 do not contemplate punishment of one who, not being a party bound by injunction, incites or aids in the commission of its breach. 6. A person not a party to the suit cannot be proceeded against for contempt for aiding and abetting the breach. 7. The jurisdiction to punish for disobedience of the injunction order vests in the court which ranted the injunction. 8. Civil contempt is defined in Section 2 (b) of the Contempt of Courts Act, 1971. 9. Criminal contempt means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which (i) scandalises or tends to scandalise, or lowers or tends to lower the authority any court; or (ii) prejudices, or interferes or lends to interfere with the due course of any judicial proceeding; or (iii) interferes or tends to interfere with, or obstructs or tends to obstruct the administration of justice in any other manner. 10. The distinction between civil and criminal contempt is that civil contempt consists of failure to comply with an order of the court, while criminal contempt consists of publications or acts which interfere with the due course of justice. 11. The disobedience of injunction is a civil contempt. 12. An aider and abettor will also be guilty of a civil contempt because the principal is guilty of civil contempt. 13. The Act makes a clear distinction between civil and criminal contempt. 14. The Code of Civil Procedure does not contemplate the High Court punishing for contempt under the Act or Constitution committed of the sub judge's order.
Final Decision: The application is dismissed but no order as to costs is made. The plaintiff may move an appropriate application to the subordinate judge under Rule 2a of Order 39, Code of Civil Procedure for disobedience of the order of injunction.
( 1 ) THE Facts : The plaintiff, Dr. Bimal Chandra Sen, owns property No. 4405 in Darya Ganj, Delhi. He says that he gave a portion of his property on lease and licence to one Mrs. Kamla Mathur wife of Shri Rama Shankar Mathur. The plaintiff alleges that Mrs. Mathur was making illegal construction in the property. On 6-4-1981 he brought a suit in the court of the subordinate judge, Mr. S. N. Gupta, for permanent injunction restraining Mrs. Mathur, her servants and agents, from carrying on any construction activities in the property. In. the suit the plaintiff made an application for temporary injunction under Order 39 rules 1 and 2 of the Code of Civil Procedure. The subordinate judge granted a temporary injunction against the defendant, her agents and servants. . on 6-4-1981. On 6-6-81 he modified the injunction order. From this order they, the plaintiff and the defendants, appealed to the court of the senior sub judge. Those appeals were dismissed.
( 2 ) NOW the plaintiff has made an application to this court under Sections 10 and 12 of the Contempt of Courts Act 1971 (the Act) read with Article 215 of the Constitution. The respondents to this application are (1) Mrs. Kamla Mathur and (2) Rama Shankar Mathur. The plaintiff complains that both wife and husband have flouted the order of injunction by going on with the construction. He says that they should be committed for contempt for acting in defiance of the injunction. The wife is admittedly a party to the suit The husband is said to be an aider and abettor of contempt because he is supervising the fresh illegal construction activities. "
( 3 ) NOTICE of this application was issued to the wife and the husband. They appeared in court and are represented by counsel. The matter first came before Charanjit Talwar J. He was of the view that the husband was not a party to the suit and tile averments made against him prima facie constituted on offence of criminal contempt of court. Since cognizance of criminal contempt can be taken only by a division bench he, by order dated September 1, 1981, directed that the matter be placed before a division bench. This is how the mater has come before us.
( 4 ) AT the very outset the question arises whether such a petition under Sections 10 and 12 of the Act is maintainable in this court on the avemients made by the plaintiff. The suit was brought by the plaintiff against the wife of Mr. Mathur. She is the sole defendant in the suit. Against her the injunction order was issued hy the. subordinate judge under Order 39 rules I and 2, Civil Procedure Code. enjoining her not to make construction. This was later on modified. No" the plaintiff complains of violation of the injunction order and says that the wife as the principal offender and the husband as an aider and abettor be punished for contempt of court under Sections 10 and 12 of the Act and Article 215 of the Constitution. Will such a petition lie in this Court in respect of an injunction order issued by the subordinate Judge ?
( 5 ) THE principal argument of plaintiff s counsel is that Order 39 does not provide effective relief to the plaintiff as those provisions have their own limitations and a more efficacious remedy for doing complete justice to a litigant is provided by Sections 10 and 12 (3) of the Act. Basing himself entirely on the Act he says that the wife is guilty of civil contempt and the husband of criminal contempt as an "aider and abettor . I will examine this argument in relation to wife and husband separately. Case against wife :
( 6 ) IN so far as the wife is concerned the legal position admits of no difficulty. She is the defendant in the suit. The court issued a temporary injunction against her. The plaintiff alleges that she has disobeyed the injunction order. For disobedience of the injunction order rules 2a of Order 39 of the Code provides the remedy. Rule 2a says : "consequence of disobedience or breach of injunction. (1) In the case of di
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