An application under Order 39, Rule 2A CPC is not tenable unless there is an order under Order 39, Rule 1 and 2 CPC in a case.

SANJAY YADAV, J.

1. With consent of learned counsel for the parties the matter is finally heard.

2. Orders dated 27.09.2006 and 24.11.2010 are challenged vide this petition under Article 227 of the Constitution of India.

3. Vide order passed on 27.09.2006, the trial Court dismissed the application under Order 39, Rule 2A Code of Civil Procedure, 1908, for initiating action against the respondents. That by order dated 24.11.2010; Appeal preferred by the petitioner has been dismissed.

4. The application under Order 39, Rule 2A CPC was filed by the petitioner, a plaintiff, for alleged disobedience of the order passed on 05.04.2002 and 16.05.2003.

5. These orders emanates from the proceedings in Civil Suit filed by the petitioner for mandatory injunction in respect of immovable property situated at village Bargawan, Patwari Halka No.45/1, NB 29 Tahsil Katni Khasra No.1, 2, 3, 4, 5, 6, 7, 8, 9, 10/1, 10/2, 12, 13, 14, 15 part, 16, 17 and 18 total area 26.90 acres. (The suit has since been dismissed by Judgment and Decree dated 30.08.2011: Civil Suit 68-A/2002).

6. On 05.04.2002 on petitioner's application for urgent hearing of the suit, the matter was taken up by another Court, as the regular Court was on leave on 05.04.2002; wherein, pending consideration of an application under Order 39, Rule 1 and 2 CPC, following order of an interlocutory nature was passed-

Qyr% mifLFkr izfroknhx.k dzekad 1] 2 rFkk 4 ,o 6 ds fo:) nkos ,oa mlds lkFk layXu uD'ks esa of.kZr oknxzLr Hkwfe ds laca/k esa fu;fer U;k;ky; }kjk vLFkkbZ fu"ks/kkKk vkosnu dh lquokbZ ,oa fujkdj.k rd ;Fkk fLFkfr dk vkns'k fn;k tkrk gSA

7. The said order was reiterated by order dated 16.05.2003 which was on an application under section 151 CPC. The trial Court observed and ordered.

oknh }kjk pkgk x;k vuqrks"k vkns'k fnukad 05-04-2002 esa lekfgr gS mDr vkns'k ds ifjis{; esa oknh dk vkosnu i= vUrxZr /kkjk 151 lh0ih0lh0 Lohdkj fd;k tkrk gS izfr0 x.kdks fodz; fuekZ.k vLi"V 0-39 fu0 1] 2 ds fujkdj.k rd lsok ls jksdk tkrk gSA

8. Alleging disobedience of these two orders, petitioner filed an application under Order 39, Rule 2A CPC for an action against respondents. However, on an objection raised on behalf of the respondents as to maintainability of the application on the ground that as the orders on 05.04.2002 and 16.05.2003 were not passed on an application under Order 39, Rule 1 and 2, and that the proceedings against the company will not lie and the person who allegedly disobeyed the order is not made party; the application is liable to be dismissed.

9. The objection raised on behalf of the respondent found favour with the trial Court, which dismissed the petitioner's application under Order 39, Rule 2A CPC by its order dated 27.09.2006. The trial Court held:

5- bl ekeys esa iwoZ esa ftu i{kdkjksa ds fo:) O;ogkjokn dz0 73v@02 is'k fd;k x;k gS] mUgh i{kdkjksa ds fo:) ;g izdj.k U;k;ky; esa yafcr gSA bl izdj.k esa fnukad 05-04-2002 o vU; vkns'k ds voyksdu ls ;g Li"V gS] fd vLFkk;h fu"ks/kkKk dk vkns'k ikfjr ugha fd;k x;k gS] oju~ /kkjk 151 lh0ih0lh0 ds vkosnu i= esa vkns'k ikfjr fd;k x;k gS] ftlds lanHkZ esa vkifRrdrkZ@vukosndx.k dk dFku gS] fd mDr vkns'k vLFkk;h fu"ks/kkKk ds vkns'k dh ifjf/k esa ugha vkrk gS] ftlls vkns'k&39] fu;e&2( v) lh0ih0lh0 ds v/khu dk;Zokgh vukosndx.k ds fo:) ugha dh tk ldrh gSA

10. This order has been affirmed in appeal which was dismissed on 24.11.2010.

11. The challenge to these orders are on the ground that both the Courts misconstrued the provisions of Order 39, Rule 2A CPC which would also include within its fold any order passed in a proceedings having effect of granting temporary injunction. It is urged that even if an order is passed on an application for urgent hearing on an application under section 151 CPC by the Court exercising its inherent power, the breach of such order would give rise to the proceedings under Order 39, Rule 2A CPC. Reliance is placed on the decision by a coordinate Bench of this Court in Chhagan Lal Jaiswal through LRs Poor