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DELHI HIGH COURT
Mukta Gupta, J.
Bundu —Appellant
versus
Shah Alam & Ors. —Respondents
CM(M) No.1167 of 2009
Decided on 9.3.2015
Counsel for the Parties:
For the Appellant:Mr. Dinesh Kumar, Advocate
For the Respondent No.2:Mr. M.U. Khan, Advocate
IMPORTANT POINT
Proceeding for disobedience of injunction order cannot be initiated against a person who was not a party accept where it is proved that he was guilty of abetment of violation of injunction order.
Headnote:(A) Civil Procedure Code 1908, Order 39 Rule 2A- Disobedience of order of injunction by a party not party to the suit- It must be proved that such person was guilty of abetment of violation of injunction order- Such party can prove his innocence by proving that the order was not in his knowledge or that the order was ambiguous and that he never intended to disobey the order but acted in good faith. (Para 8)
(B) Civil Procedure Code 1908, Order 39 Rule 2A- Liability of Pendente lite transferee- Where property sold after the status quo order but vendee was not party to the suit and an application filed for imp leading the vendee was rejected and there was no order against the vendee, the vendee cannot be held to be liable for disobeying the injunction order. (Para 9)
Facts of the case
Where along with suit for specific performance of performance and in that suit parties were directed to maintain status quo. An application filed by the plaintiff alleged that he was disposed from the property and in that application the petitioner was directed to put back into possession. Objections were filed by respondent No. 2 stating that he had purchased the suit property during pendency of the case. The respondent no. 2 being bona fide purchaser claimed that he could not be dispossessed. On his application warrant of possession in favour of plaintiff were withdrawn.
Findings of the Court
The question was whether a person not impleaded in the suit and not named in injunction order can be proceeded against under Order 39 Rule 2A for violation of the order. It has been held that injunction is personal matter and ordinarily a person who is not a party cannot be proceeded for contempt. However, the exception to the rule is that where it is alleged and proved that the person who violated the order, the proceedings can be initiated against such person if he was in the knowledge of the same and was guilty of abetment of violation of the said order. In the instant case the sale deed was executed after passing status quo order but the vendee was not in the knowledge of the same and therefore, the trial Court, rightly withdrew the order of possession.
Result: Petition Dismissed.
Mukta Gupta, J.—The Petitioner/Plaintiff had filed a suit before the learned Trial Court seeking specific performance of an Agreement to Sell of immovable property executed by Respondent/Defendant No.1 in favour of the Petitioner.
2. It was the case of the Petitioner in the plaint that the Respondent No.1 had, in pursuance to the Agreement to Sell, put the Petitioner into possession of the property. Along with the suit, an application under Order 39 Rule 1 and 2 CPC was filed wherein the learned Trial Court passed an order dated 31st March, 1989 directing the parties to maintain status-quo in respect of property bearing Stall No.5, situated at Bengali Market, New Seema Puri, Shahdara, Delhi. The Petitioner claimed that he was dispossessed from the property and on an application of the Petitioner under Order 39 Rule 2A CPC the Respondent No.1 was held guilty and warrants of his arrest were issued. An order directing the Petitioner to be put back into possession of the property was also passed vide order dated 19th February, 2009 and warrants of possession of the suit property were issued on 2 nd May, 2009. The Respondent No.2 filed objections against the order dated 2nd May, 2009 issuing warrants of possession of the suit property on 13 th May, 2009 stating that he had purchased the suit property on 18th April, 1989 and was in possession of the suit property since then. He also disclosed that in the suit, he filed an application under Order 1 Rule 10 CPC on 6 th April, 2004 but the same was dismissed by the Court on 4th October, 2004. The Respondent No.2 being a bona fide purchaser, he could not be dispossessed from the suit property. The said objections of the Respondent No.2 were allowed vide the impugned order without making any observation regarding the merit of the claim or contention of the plaintiff that principle of lis pendens would apply and hence the present petition. Vide the impugned order the learned Trial Court withdrew the warrants of possession to decide the question of lis- pendens at an appropriate stage and the Respondent No.1 was granted time to appear before the Court.
3. During the pendency of the present proceedings, it was informed that Shah Alam Respondent no.1 has since passed away and the learned counsel for the petitioner stated that he did not want to implead the L.Rs. of Shah Alam which is recorded vide Order dated 23rd January, 2013.
4. Learned counsel for the Petitioner contends that the provisions of Section 52 of the Transfer of Property Act in relation to lis-pendens would apply against the Respondent No.2/Objector and the objections are liable to be dismissed in view of his own admission that he purchased the suit property after institution of the suit and after the status quo order dated 31st March, 1989 was passed by the learned Trial Court. Reliance is placed on Samee Khan vs. Bindu Khan, AIR 1998 SC 2765; Sanjay Verma vs. Manik Roy and others, 2006 (13) SCC 608; Sarvinder Singh vs. Dalip Singh and others, 1996 (5) SCC 539; Bindu Khan vs. Samee Khan, AIR 1998 Rajasthan 115; Sujit Pal vs. Prabir Kumar Sun and others, AIR 1986 Calcutta 220 and Savitri Devi vs. Civil Judge (Senior Division), Gorakhpur and others, AIR 2003 Allahabad 321
5. Learned counsel for the Respondent No.
2/Objector on the other hand contends that the Objector was not a party to the suit and was not made a party to the suit despite his having filed an application for impleadment and therefore, he cannot be dispossessed from the suit property under Order 39 Rule 2A CPC and only the Respondent No.1 was liable to be proceeded against under Order 39 Rule 2A for whom warrants of arrest had already been issued.
6. Vide the impugned order learned Trial Court has not decided the plea of lis pendens and has noted that the same will be decided at appropriate stage. The impugned order only recalls the order issuing warrants of possession.
7. In Samee Khan (supra) the Supreme Court while dealing with the power of Court under Order
