1980 PLP 89 (SCMR)

Ch. Aziz Ahmed, Advocate Supreme Court and Ch. Ghulam Mujtaba, Advocate‑on‑Record for Petitioners. Qamar‑ud‑din, Advocate, Supreme Court and Abid Nawaz, Advocate- on‑Record for Respondents Nos. 2 and 3. ' Date of hearing : 19th December, 1979. KARAM ELAHEE CHAUHAN, J.‑‑The petitioners/plaintiffs filed a suit against the defendants/respondents for a declaration that an order of the Divisional Canal Officer dated 4th December, 1977, whereby he had directed that defendants should receive water for irrigating their land from a khal which passed through the land which though jointly owned by the parties was alleged by the plaintiffs to be in their hissadari possession as co‑owners. In that suit the plaintiffs filed an application for grant of an ad interim temporary injunction which was rejected on 20th February, 1979. The plaintiffs filed an appeal against the aforesaid order of the civil Court but without any success as the same was dismissed by the learned District Judge on 6th March, 1979. This order between the parties has become final inasmuch as it was not challenged further anywhere in any forum. The finding recorded in these orders was that there did already exist a watercourse on the spot from which the defendants were authorised to receive water for their lands.

2. It appears that during the pendency of the aforesaid appeal of the plaintiffs they had asked for an order of status quo, which was granted to them by the learned District Judge on 24th February, 1979. The defendants/respondents however, on 28th February, 1979 brought to the nonce of the learned District judge that though the plaintiffs/petitioners had obtained an order of status quo on 24th February, 1979 but they had themselves violated it inasmuch as taking benefit of that order they had demolished the khal which already existed on the spot on the relevant date for watering the fields of the defendants. The learned District Judge in that miscellaneous application on 20th March, 1979, directed the plaintiffs/petitioners to restore the khal. Relevant portion of that order which may conveniently be reproduced here reads as follows :‑ "A watercourse certainly existed at the spot, which has been demolished by the respondents. Proceedings under Order XXXIX, rule 2, sub‑rule (3), C. P. C. may be taken against them and notices be issued to them to appear in this Court personally on 27th March, 1979. The respondents are also directed to restore the watercourse in question within twenty‑four hours failing which they shall be sent to the civil prison. This order has been passed under section 151, C. P. C. to secure the ends of justice." As this order was not complied with the learned District Judge then on 27th March, 1979 passed another order which is to the following effect :‑ "The respondents are not present. The petitioner states that the respondents have not restore the watercourse in question in accordance with the order dated 20th March, 1979 of this Court. The affidavit of the petitioners has been filed in this behalf. The order of this Court has to be complied with. The respondents should, therefore, be sent to civil prison and be detained there till the watercourse in question a, restored by them. Their property shall also be attached and warrants for arrest and attachment be issued. The petition be put .up for further proceedings on 3rd April, 1979."

3. The petitioners/plaintiffs filed an appeal (being F.A.O. No. 105 of 1979) in the High Court against the aforesaid order of the learned District Judge dated 20th March. 1979. In that appeal it was argued that the orders of the learned District Judge purported to put the petitioners under a double jeopardy firstly under detention to seek enforcement of his order and secondly to face charge for imprisonment on account of disobedience of the order of status quo. This plea was not accepted, and a learned Single Judge of the Lahore High Court dismissed that appeal on 27th March, 1979, holding that the two matters were quite separate and could independently proceed against the petitioners. This is a petition for special leave to appeal against the aforesaid order to this Court.

4. The petitioners had applied for an order of ad interim stay or status quo in this Court as well. The matter was disposed of by an order of this Court dated 16th April, 1979 which reads as follows :‑ "Arguments partly heard. It has been brought to our notice that a. connected Petition No. 624/78, in respect of the same khal, is pending in this Court. We direct that connected petition may also be listed for hearing on 17th instant." Learned counsel for the petitioners undertakes to have the khul its question restored for the present and in the meantime the petitioners shall not be apprehended. . Adjourned; to come up alongwith the connected Civil Petition 624/78, on 17th instant. Notice for the counsel in C. P. 624/78, will be given."

5. It is stated by the officers of the Canal Department; who were present in person alongwith the record and by the learned counsel for the other respondents that on the spot the khal has not yet been restored. Learned counsel for the petitioners was asked as to why this petition should not be dismissed because his clients have not fulfilled the undertaking which was given by them on the basis whereof stay order against their arrest was given to them and why further action against his clients should not be taken by this Court as well. The learned counsel had no answer except that his clients were of old age and probably they may not have understood the contents of the above order and that he himself was also probably not certain of the terms on which stay had been granted to him. These pleas cannot be accepted in view of the clear terms of the order above reproduced, and it appears to be a case of a deliberate violation of an undertaking given to this Court and we would have straightway taken a, serious note of it as was done in Muhammad Salim Khan Yusafzai v. K. Mohiuddin (1968 S C M R 557) or would have dealt with the matter under other law relevant in this behalf. But for a fresh undertaking given by the learned counsel that he will attend to this matter and impress upon his clients to reopen or reconstruct the khal, we for the present keep this aspect of the matter open to give opportunity to the plaintiffs to do the needful. Learned counsel can inform the Registry of this Court that the petitioners have com plied with their (now double) undertaking. If the amends are not made within a fortnight, the learned trial Court (where the suit is still pending) is directed to get the khal restored by issuing necessary directions to the canal authorities and others concerned and burden the petitioners with costs. He should report compliance to this Court.

6. Coming to the merits of the present petition the learned counsel argued that the learned District Judge under the law had no jurisdiction to direct the plaintiffs/ petitioners to reconstruct or restore the khal which, we may observe, according to the concurrent factual findings of the two Courts below had been demolished by them by taking undue advantage of the order of "status quo" issued by the learned District Judge. It was argued that in such cases the only remedy of the respondents was to file a separate suit fur that purpose or to sue for damages. The contention has no merit. It is well settled that when by contravening an injunction order the party against whom the order is passed has done something for its own advantage to disadvantage of the other party, it is open to the Court under its inherent jurisdiction to bring back the party to a position where it originally stood, as if the order had not been contravened. The exercise of this inherent power is based on the principle that no party can be allow ed to take advantage of his own wrong in spite of the order to the contrary pissed by the court. See Ayyammal and another v. Thangavelu Padayachi (A I R 1950 Mad. 317); Maharaj Bahadur Singh v. A. H. Forbes (A I R 1922 Pat. 382), Tile State of Bihar v. Usha Devi and another (A I R 1956 Pat. 455) and Magna and another v. Rustam and another (A I R 1963 Raj. 3). In B. F. Yarghese v. Joseph Thomas (A I R 1957 Trav.‑Co. 286) where the Court had already passed a temporary injunction against the defendants but the subsequent action of the plaintiffs in interfering with the subject‑matter tended to discredit the temporary injunction, it was held that the Court was justified in granting a temporary injunction at the instance of the defendants ordering the plaintiffs to restore the status quo.

7. The next point argued was that since ultimately the ad interim order of "status quo" was later discharged by the learned District Judge when he dismissed the appellants' appeal, therefore, violation of the afore said order was not now cognizable. This plea again has no substance. See Bagga and others v. Saleh and others (AIR 1915 P C 106) where it was laid down that if during the period when an injunction was in operation it was disobeyed the Court can proceed against the party concerned for its violation. To the same strain is Ottapurakkal Thazath Suppi and others v. Alabi Mashur Koyanna Koya Kunhi Koya (A I R 1917 Mad. 448); where it was held that if a disobedience of an injunction granted under Order XXXIX, rule 2, C. P. C. has occurred and an application for action being taken within rule 2 (3) is made and a dissolution of the injunction takes place as a result of the dismissal of the suit subsequently (we should here say dismissal of appeal by the learned District Judge) the dismissal does not excuse the party guilty of dis obedience. In this situation the matter is one left to the discretion of the Court, which is not bound under rule 2(3) in the first instance to attach property and then only order imprisonment.

8. It was then argued that in cases of this type where a party has violated an injunction order the maximum penalty which the law under Order XXXIX. rule 2 (3), C.P.C. envisages is of detention in a civil prison for six months and till such term as the rectification is done and that this period of detention prescribed in the sub‑rule cannot even indirectly be added to as laid down in The Advocate‑General of Bombay v. Gangji Ahhat (1 L R 19 Bom. 152). We need not go into the scope of Order XXXIX rule 2 (3) because the matter as to what penalty should be imposed upon the plaintiffs/ petitioners (as pointed out by the High Court) is still sub judice before the learned District Judge, and for the present the sole question to be seen is whether for getting compliance of his order dated 20th March 1979, the learned District Judge could order detention of the petitioners in a civil prison till his orders were obeyed and the khal demolished by the petitioners was reconstructed by them on the spot. If he had jurisdiction to order restoration of khal, then what are the means and ways through which he could secure the execution of his order. This part of the case deals with securing execution and compliance of an order and not with punishment for a disobedience of that order under Order XXXIX, rule 2 (3), C. P. C. (or any other law if relevant) because in spite of the fact that compliance later on may have been secured by other means and processes the punishment for the civil offence of disobedience is a matter independent by itself and should not be mixed up with execution of the relevant order or orders violation whereof may have landed the law breaker into a penal offence as well. We hold accordingly and will explain this point hereinafter.

9. At this place reference may be made to section 2 (14) of the C.P.C. which defines an `order' and states that `order' means the formal expression of any decision of a civil Court which is not a decree". As a general rule an order by a Court of law is founded on objective considerations and as such is a judicial order which contains discussion of the question in issue and the reasons which prevailed with the Court to pass it. Judging the order dated 20th March 1979 which was passed by the learned District Judge in this case, it is a judicial order which took note of the breach of the status quo order by the plaintiffs/petitioners, referred to the relevant evidence before it, and after attending to all the facts and circumstances directed the plaintiffs to restore or reconstruct the khal which already existed at the spot. As already mentioned above the learned District Judge was compe tent to pass such an order. In this respect then we come to section 36 which occurs in part II of the C. P. C. headed. "Execution" and "General" and lays down that `the provisions of this Code relating to the execution of decrees shall so far as they are applicable be deemed to apply to the execution of orders". Section 38 lays down that "A decree may be executed either by the Court which passed it, or by the Court to which it is sent: for execution". This will show that since the order dated 20‑3‑1979 was passed by the learned District Judge, he was (like his own decree) competent to enforce its execution. Under section 51, C. P. C. a decree may be executed (a) by delivery of any property specifically decreed ; (b) by attachment and sale or by sale without attachment of any property ; (c) by' arrest and detention in prison ; (d) by appointing a receiver ; or (e) in such other manner as the nature of the relief granted may require. Order 21, rule 32 is headed as "Decree for specific performance, for restitution of conjugal rights, or for an injunction", and so far as relevant‑(the Lahore Amendment)‑lays down that "where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has wilfully failed to obey it the decree may be enforced in the case of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific performance of a contract or for an injunction by his detention in the civil prison, or by the attachment of his property, or by both" .(5) "where decree for the specific performance of a contract or for an injunction has not been obeyed, the Court may, in lieu of or in addition to all or any of the processes aforesaid, direct that the act required to be done may be done so far as practicable by the decree‑holder or some other person appointed by the Court at the cost of the judgment‑debtor, " Though these provisions are clear to show that execution of a decree for injunction can be procured by the arrest and detention of the judgment‑debtor, but for cases which lay down that enforcement can be made by commitment of the judgment debtor see Kishore Bun Mohunt v. Dwarkantah Adhikari and others (21 1 A 89 (P C) ) (a case under the corresponding provisions of the old Code) ; Nari Chinnabba Chetty v. E. Chengalroya Chetty and others (A I R 1950 Mad 237) and Mool Chandra Jain v. Jagdish Chandra Joshi (A I R 1955 All. 385). In Dulhin Janak Nandini Kunwari v. Kedar Narain Singh (A I R 1941 All. 140), at p. 142, it was field that ''section 36 lays down that the provisions of the Code relating to the execution of decree shall, so far as they are applicable, be deemed, to apply to the execution of "orders". Under Order XXI, rule 32, injunctions contained in decrees can be enforced in certain ways and it seems to me that it is obvious that injunctions contained in orders can be enforced in the same way. I think therefore that there is considerable force in the argument placed before us that the enforcement of injunctions issued under Order XXXIX, rule 1 should be under the provisions of section 36 and Order XXI, rule 32, Civil Procedure Code. If that is so, the provisions of sub‑rule (3) of rule 2 of Order XXXIX, would not apply............ At this place reference may again be made to sub‑rule (5) of rule 32 of Order XXI which has already been reproduced earlier. The illustration attached to that sub‑rule reads as follows. "A, a person of little substance, erects a building which renders uninhabitable a family mansion belonging to B. A, in spite of his detention in prison and the attachment of his property, declines to obey a decree obtained against him by and directing him to remove the building. The Court is of opinion that no sum realisable by the sale of A's property would adequately compensate B for the depreciation in the value of his mansion, B may apply to tile Court to remove the building and may recover the cost of such removal, from 4 in the execution proceedings." In Bendakayala Abdul Rajack v. Vastad Abdul Latheef (A I R 1961 Andh. Pra. 482) section 36 and Order XXI, rule 32 (1) were applied to even enforcement of an ad interim mandatory injunction. A cumulative study of these provisions will show that securing compliance and execution of an order of injunction to restore or reconstruct the khal by directing arrest and detention, etc. of (as this term is usually used)‑a judgment‑debtor is an independent subject by itself whereas punishing a judgment debtor for violation of the injunction of status quo is quite a different matter altoge ther though in certain respects apparently they may look to be overlapping but that is only incidental. The object of first is to seek compliance by a, Court of its orders as otherwise these orders would be a mere farce. The aim of the second machinery is the punishment of the defaulter. The former is regulated by section 58 whereas the latter by Order XXXIX, rule 2 (3), C. R. C. The former is applicable when stage for execution has not passed out or in other words the order is still capable of execution whereas the latter is attracted at all stages. The plea of double jeopardy thus fails and is hereby repelled.

10. The result of the above discussion is that the order of the learned District Judge dated 20th March 1979, directing restoration of the khal .on the facts and in the circumstances above explained was perfectly lawful and cannot be taken exception to. Similarly his further order or direction directing imprisonment of the plaintiffs/petitioners and attachment of their property for securing compliance and execution of that order was also perfectly within the framework of the law relevant on the subject as explained above subject to one clarification that that order will obviously have to be read subject to limitations and restrictions contained in section 58 and other similar provisions like sections 134, 135 and 135‑A of the C. P. C. In section 58 the period of detention in such cases is six weeks.

11. The petition thus having no merit is dismissed with the clarifica tion above made. The petitioners to pay the costs of the caveators.