The central legal point established in the judgment is that the powers under Rule 2A of Order XXXIX can be invoked only in a case of willful disobedience, and the burden lies on the party alleging disobedience to prove the offense beyond reasonable doubt.

JUDGMENT :

1. Heard Sri Manish Dev Singh, learned counsel for the petitioner and Sri Sukesh Kumar, learned counsel appearing for the respondents.

2. The present petition seeks to assail the order dated 25.10.2019 passed by the Additional District Judge, Court No. 2, Aligarh in Misc. Civil Appeal No. 40 of 2019 (Shyam Singh and another vs. Makkhan Singh).

3. In terms of the aforesaid order, an appeal preferred by the defendant respondents under Order XLIII Rule 1 (r) C.P.C. has been allowed and the order dated 10.04.2019 passed by the Civil Judge (Senior Division) Aligarh in Misc. Case No. 3800015 of 2016 (Sri Makhhan Singh and another Vs. Sri Shyam Singh and others), whereby the defendants had been held to be guilty and the trial court had sentenced them to undergo civil imprisonment for a period of three months, has been set aside.

4. Contention of learned counsel appearing for the plaintiff/petitioners is that the order of adinterim injunction granted in favour of the plaintiffs on 28.11.2016 directing the parties to maintain status quo regarding the disputed property till the next date was sent by registered post dated 29.11.2016 and inspite of that the defendants harvested the wheat crop standing on the disputed land which was a clear breach of the adinterim injunction and accordingly the trial court had rightly passed the order under Order XXXIX Rule 2A and the appellate court erred in setting aside the same. Reliance has been placed on the judgment in the case of C.C. Alavi Haji Vs. Palapetty Muhammed and another, (2007) 6 SCC 555 for the proposition with regard to the presumption of service of notice in a case of a notice sent by registered post.

5. Per contra, learned counsel appearing for the defendant respondents has supported the order passed in the Misc. Civil Appeal by submitting that the injunction order having never been served, the defendants could not be held to be guilty of breach of the said order and the finding recorded by the trial court with regard to sufficiency of service was erroneous. It is further submitted that there was no material to prove the exclusive ownership and possession of the disputed land by the plaintiffs or that the crops had been sown by them. Further, it is submitted that the defendants having been duly recorded as cosharers in the revenue records the trial court could not have overlooked the same. Reliance has been placed on the judgment in U.C. Surendranath Vs. Mambally's Bakery, AIR 2019 SC 3799 to contend that in order to attract the provisions under Order XXXIX Rule 2A it should not be a mere case of 'disobedience' but the same should be demonstrated to be a case of 'willful disobedience'.

6. The question which was under consideration in the Misc. Civil Appeal was as to whether the defendants could be held to be guilty of disobedience or breach of injunction so as to attract the provisions contained under Order XXXIX Rule 2A.

7. The Court hearing the Appeal in order to decide the aforesaid question framed the following points of determination.

“1.Whether there was some injunction order passed by the Court ?

2. Whether the injunction order was conveyed to or served upon the appellants/contemnors?

3. Whether the appellants/contemnors had time and means to obey the order?

4. Whether the disobedience or breach was deliberate and willful?”

8. The point no. 1 with regard to the existence of the injunction order was answered in the affirmative. As regards the point no. 2, which was as to whether the injunction order had been served upon the defendants the appellate court upon considering the material on record has drawn a conclusion that it was not clear as to when and on which date the notices were served on the defendants and has accordingly held that there was no clinching evidence regarding service of notice. It has taken note of the fact that the trial court had not given any cogent reason to arrive at a conclusion that service of notice on the defendants was sufficient. Having held the serv