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1963 Supreme(Ori) 67
HIGH COURT OF ORISSA
G. K. Misra, J.
BABULAL PAREKH - Appellant
Versus
LACHMINARAYAN SWALRAM - Respondent
Civil Revn. 278 Of 1962
Decided On : AUGUST 27, 1963
B.Harichandan, N.MUKHERJEE, R.C.PATNAIK, R.N.MISRA
A person who is not a party to the suit and has not given an undertaking cannot be punished in contempt for violation of the undertaking, even if he is the manager of the company that gave the undertaking.
Headnote:
CONTEMPT OF COURT - UNDERTAKING - VIOLATION - MANAGER OF COMPANY - LIABILITY - ORDER 39, RULE 2 (3), C. P. C. - APPLICABILITY.
Fact of the Case:
The petitioner, the manager of defendant-1, was not a party to the suit but appeared in the proceeding under Order 38, Rule 5 C. P. C. in that suit as the manager representing the Company (defendant-1). The Court passed an order restraining the defendants from removing or alienating any property of the shop before furnishing security. The petitioner filed an objection stating that he was not a party to the suit and had not given the undertaking, but appeared in the proceeding as the manager representing the Company. The trial court found that the petitioner violated the injunction order and attached his properties worth Rs. 500/- under Order 39, Rule 2 (3), C. P. C. The petitioner appealed to the District Judge, who dismissed the appeal.
Finding of the Court:
The court held that the petitioner was not liable to prosecution in contempt as he did not give the undertaking in his personal capacity and the contempt proceedings did not bring home to him the charge that he aided and abetted the infringement of the undertaking by defendant-1.
Issues: 1. Whether the petitioner, who was not a party to the suit but appeared as the manager representing the Company, was liable to prosecution in contempt for violation of the undertaking given by defendant-1? 2. Whether Order 39, Rule 2 (3), C. P. C. was applicable to the case.
Ratio Decidendi: 1. An injunction is a personal matter and can only be disobeyed in contempt by the persons named in the writ. An injunction cannot be passed against a person who is not a party to the suit unless he claims by or under a party under a title acquired subsequent to the suit, or unless he is a servant or agent of the party or otherwise represents him. 2. The petitioner did not give the undertaking in his personal capacity and the contempt proceedings did not bring home to him the charge that he aided and abetted the infringement of the undertaking by defendant-1. 3. Order 39, Rule 2 (3), C. P. C. is applicable to proceedings in contempt for violation of undertakings given to subordinate courts.
Final Decision: The Civil Revision was allowed, and the petitioner was not liable to prosecution in contempt.
G. K. MISRA, J.
( 1 ) BABULAL Parekh is the petitioner. He is not a party to Money Suit No. 270 of 1960 in the Court of the Second Munsif, Cuttack; but he was the manager of defendant-1 (M/s. H. J. Vralal and Co.) at the relevant time. The suit was filed on 7-7-1960 with a prayer for attachment before judgment of the movables of the defendants. On 9-7-1960, Writ of attachment before judgment was issued. On 117-1960, defendant 1 entered appearance through the petitioner and prayed for recalling the order of attachment. The attachment matter was not heard on that day. On the question of undertaking the Court passed an order to the effect-
"the defendant No. 1 has undertaken not to close down the business. " it is the violation of this undertaking which is the subject matter of this revision. It may be made clear at this stage that on 20-7-1960, the Court also passed an order to the effect "the defendants are restrained from removing or alienating any property of the shop before furnishing security. "
This order is not the subject matter of this revision as on 21-7-1960 it was recalled. On 2-8-1960, the plaintiffs filed an application for proceeding in contempt against defendant No. 1 and the petitioner alleging that defendant No. 1 had already removed the movables and closed down their business in contravention of the undertaking dated 11-7-1960, and that defendant No. 1 in collusion with his landlord Matrumal Modi of Nayasar had removed the sign-board of defendant-1 and had put another signboard with the title "sri Durga Stationery Stores; Prop. Motilal Sanwar Mall, General Merchant, Cuttack. " No allegation was made in the application as to the part played by the petitioner in the matter of violation of the undertaking. The only allegation was that he was the manager of defendant-1 and the nephew of defendant No. 2. It may be noted that there was no reference in the application to the provision of law under which the contempt proceeding was started.
( 2 ) ON 1-12-1960, the petitioner filed his objection stating that he was not a party to the suit, but appeared in the proceeding under Order 38, Rule 5 C. P. C. in that suit as the manager representing the Company (defendant-1), that the shop house was located in a rented house, that as the landlord threatened the objector with dire consequences on account of non-payment of rental, the objector was obliged to remove the business premises to Maha-madia Bazar in the town of cuttack, that all that was sold on 19-7-1960 were the almirahs and the iron safe which had been embedded into the walls, and that the application under Order 39, rule 2, C. P. C. is not maintainable against him.
( 3 ) MISC. case No. 188 of 1960 was started under Order 39, Rule 2 C. P. C. On 2610-1961, Sri A. K. Patra. Munsif, Second Court, passed the following order-
"the counsel for the petitioners appears. The O. P. is absent on call and set ex parte. Examined P. W. 1. Both Exs. 1 to 3 marked. In the absence of any witness to the contrary the witness of P. W. 1 and Exs. 1 to 3 are accepted. . The O. P. violated the injunction order, i,e. the undertaking siven by him to the Court. Properties of the O. P. worth Rs. 500/- be attached under Order 39, Rule 2 (3), C. P. C. "
The learned Munsif should not have passed such a cryptic order even though it was heard ex parte when he decided to inflict punishment for violation of the undertaking. It is well settled that proceedings in contempt are quasi-criminal in nature, and the order punishing the contemners, generally speaking, should be treated as orders in criminal cases. Against the aforesaid order, defendant-1 did not file an appeal before the learned District Judge in Misc. Appeal No. 153 of 1961. The order, as against defendant 1, therefore, has become final and so far as he is concerned, the punishment imposed by the learned Munsif would stand. He is also not a petitioner before me. The petitioner's appeal was dismissed by the learned District Judge on 22-9-196
