2010 Supreme(All) 3563
[2010(10) ADJ 378 (DB)]
ALLAHABAD HIGH COURT
BEFORE : AMITAVA LALA AND ASHOK SRIVASTAVA, JJ.
RAM MURAT AND ANOTHER ......Petitioners
Versus
STATE OF U.P. AND OTHERS .....Respondents
(Civil Misc. Writ Petition No. 58725 of 2010, decided on 6th October, 2010)
Counsel :
H.N. Shukla and R.R. Shukla for the Petitioners; V.B. Mishra, C.S.C. for the Respondents.
Headnote:Code of Civil Procedure, 1908—Order XXXIX, Rule 2-A and Section 151—Constitution of India, 1950—Article 226—Injunction—Disobedience—Remedy against—Civil suit pending, wherein petitioners have obtained an order of injunction—Application for disobedience of injunction also filed—Despite that writ petition filed to obtain similar order as could be passed by Civil Court—Mandamus sought to restrain respondent Nos.1 to 4 and to restore possession of petitioner over land in question by demolishing construction raised by respondent Nos. 5 to 8—Remedy of Article 226 is not permitted to interfere with jurisdiction of Civil Court when suit and interim application pending there for orders—Matters not arising out any writ jurisdiction—C.P.C. is a complete Code to protect the interest of any party against the party disobeying to carry out orders passed by Civil Court—Interference with declined. [Paras 4 to 10]
Result; Petition Dismissed.
Hon’ble Amitava Lala, J.—This writ petition has been filed with a prayer to issue mandamus commanding the respondent Nos. 1 to 4 to take action and to maintain law and order in accordance with law in compliance of the judicial orders passed by civil Court from time to time and to restore possession of the petitioner over the land in question by demolishing construction raised by respondent Nos. 5 to 8 and his associates.
2. The admitted position is that there is a civil suit pending before the appropriate civil Court for injunction, wherein the petitioners have obtained an order of injunction. It is also an admitted fact that they have filed an application under Order XXXIX, Rule 2 A of the Code of Civil Procedure for disobedience or the breach of the order of injunction. Having all sorts of remedies available to them and inspite of filing civil suit as well as application for injunction, the writ petition has been filed before this Court to obtain similar order as would be passed by civil Court.
3. Learned counsel appearing for the petitioners has relied upon two orders passed by two Division Benches of this Court in Writ-C No. 3551 of 2010 (Savitri Devi v. State of U.P. and others) decided on 10.2.2010 and a consequential order dated 19.2.2010. Such writ petition is pending and the Court had directed the concerned Deputy Superintendent of Police to ensure that the injunction order, which has been passed by the Civil Court, be complied with.
4. According to us, the Civil Procedure Code is a complete code to the extent to deal with the matters under Order XXXIX, Rule 2 A of the Code of Civil Procedure. One plea has been taken by the petitioners that the alleged defaulters are not receiving any notice. In such cases provision of further order of advertisement and to pass appropriate order by the Civil Court is not restricted. Even in such case if any violation of the order is there, the Civil Court has liberty to proceed for contempt and the High Court, for the purpose of apprising the same, may pass appropriate order. Remedy of Article 226 is not permitted to interfere with the jurisdiction of the Civil Court when the suit and interim application are pending there for orders.
5. Learned counsel for the petitioner has relied upon two judgments, one of the Supreme Court reported in AIR 1998 SC 2765 (Samee Khan v. Bindu Khan) and another of full Bench of the Madras High Court reported in AIR 1975 Madras 270 Full Bench (Century Flour Mills Ltd. v. S. Suppiah and others). However, we find that both the matters are not arising out of any writ jurisdiction but arising out of civil suit and have reached upto the High Court and the Supreme Court.
6. In Samee Khan (Supra) the Supreme Court has held that; “it is open to the Court to attach property of disobeying party and at the same time the Court can order him to be detained in civil prison also if the Court deems it necessary. Similarly the Court which orders the person to be detained in civil prison can also attach the property of that person. Both steps can be resorted to or of them alone need be chosen. It is left to the Court to decide on consideration of the fact situation in each case.”
7. Similarly, in the Full Bench judgment of Madras High Court in Century Flour Mills Ltd. (Supra) it has been held that “the power of the Court under Section 151 of the Code of Civil Procedure are wide and are not subject to any limitation. Where in violation of a stay order or injunction against a party, something has been done in disobedience, it will be the duty of the Court as a policy to set the wrong right and not allow the perpetuation of the wrong doing. The inherent power will not only be available in such a case, but it is bound to be exercised in that manner in the interest of justice. Even apart from Section 151, we should observe that as a matter of judicial policy, the Court should guard against itself being stultified in circumstances like this by holding that it is powerle