' By a short order passed in Court today I have partly allowed the above Revision Application.
Reasons for such order are recorded below.
2. The facts of this case are simple but the question of law involved is a serious one. In a suit, which touched upon the areas, dimensions and boundaries of Plots Nos.34, 35, 36, 37, 38, 39 & 335, Block 'C', Unit-7, Latifabad, Hyderabad, out of which plots Nos. 36 and 39 belong to the respondent No,4 and the rest to the applicant, the dispute centered on some excess, area, which was claimed by either side, as part of its holdings. The trial Court declined an order of injunction to the present applicant, who was the plaintiff in the suit, but, on appeal, the matter was disposed of on the basis of a statement made on behalf of the respondent No 4 that such respondent was neither in possession of any portion of Plots Nos.35 and 38 nor did it intend to deal with such plots in any manner whatsoever. An order of status quo had remained in force while the appeal was pending.
Subsequently, an application under Order 39 Rule 2(3), C.P.C. Read with section 3 of the Contempt of Courts Act was moved, by the present applicant, before the Appellate Court on 22-5-1989 in which punitive action was sought on two-fold grounds of violation of the order of status quo, while it operated during the pendency of the appeal and transgression of the purported undertaking dated 2-5-1989, in terms whereof the appeal was disposed of. This application was dismissed, per order dated 31-5-1989, observing that the appeal stood disposed of and the applicant could move the trial Court. Hence this revision.
3. The question before me is whether this is a case constituting refusal to exercise jurisdiction conferred by law and thus amenable to correction in revision.
4. Learned counsel contends that for initiating punitive action under Order 39, Rule 2(3), C.P.C. It is required of an aggrieved party to approach the Court, which granted the injunction and since the trial Court had refused such relief, the Appellate Court allowing it, on the basis of an undertaking, the applicant had approached the proper forum. On the other hand, it is urged for the respondents that it is the power of the trial Court, which had been exercised by the Appellate forum and, therefore, the competent Court, if any, is the trial Court alone.
5. Mr. Jhamat Jethanand, for the applicant, has pointed out that, following upon some decisions, in Indian jurisdiction, out of which one from Calcutta, reported as Sk. Abu Bakkar and others v.
Sm.Parimal (AIR 1962 Cal 519), is cited, the Indian legislature has amended Order 39, since the words "Court granting an Injunction", in Order 39, Rule 2(3), C.P.C., were construed to limit the power to punish in such a way that even a transferee Court was found precluded from exercising that power. The amendment has operated to offset the restriction. It would, however, seem that the Indian interpretation was too technical and, normally, the expression "Court granting an Injunction", occurring in Order 39 Rule 2(3), C.P.C, would include every Court to which, the suit in which the Injunction was granted, stood transferred or which came to occupy the place earlier occupied by such Court and had seiz-in of the lis. This argument, therefore, is of no help except that extremely retricted interpretations are capable of being made of the relevant provision. Indeed in the case of Dehlin Janak Nandni Kunwari v. Kedar Narain Singh AIR 1941 All. 140, a Division Bench of the Allahabad High Court, expressed the view that, on transfer of a suit, enforcement of an Injunction would remain within the purview of the transferee Court, but, leaving the question open, a query was raised as to why similar may not be the position of punitive measures under Order 39 Rule 2(3)
C.P.C. As at any event, power to punish would still lie with the High Court. This decision as to enforcement, has been approved by the Supreme Court here in the case of Bakhtawer etc. v. Amin etc. 1980 SCMR 89.
6. Learned counsel for the applicant, for a restrictive approach, has also relied on the cases reported as Wadhawa Singh v. Ladha Singh AIR 1931 Lai. Page 201. Muhammad Bashir v. P.1.A. 1985 CLC 178 and Pir Bahauddin v. Mayor Hyderabad Municipal Corporation 1987 MLD 2090. On the other hand, Mr. Partab Rai places reliance on the case of Dr. M.O. Ghani v. A.N.M. Mchmood and others PLD 1966 SC 802.
7. In the Lahore decision the question pertained to violation of an order, operative during the pendency of an appeal in the High Court and, for obvious reasons, it was such Court alone which was held to be competent to invoke the provisions of Order 39 Rule 2(3), C.P.C. In the case of Muhammad Bashir relying on the Supreme Court case of Bakhtawer etc. v. Amin etc. 1980 SCMR 89, it was held that action under Order 39 Rule 2(3), C.P.C. Could be sought in the forum which granted the order of injunction. Similar view was expressed in the case of Pir Bahauddin, referred above.
8. In cases where there is a violation of an order of injunction, passed during the pendency of appellate proceedings etc. And the provisions of Order 39(2)(3) are invoked, the law seems to be clear. It is only that Court in which the proceedings were pending, in relation to which the interlocutory order came to be passed, that would have jurisdiction to entertain complaints of breach of such orders,
9. Likewise, there would be no difficulty whatever where an interlocutory injunction is granted in a suit during its pendency and no appellate orders are involved. In such cases also, it is the Court which granted the injunction alone which would be competent to deal with regard to Orders U/O 39 Rule 2(3), C.P.C.
10. Difficulty, however, arises in cases where, during the pendency of a suit, interlocutory orders of injunction are passed/refused by the trial Court which are varied, modified or set aside at the appellate and revisional stages, to which such Orders are taken. Situations are conceivable where the trial Court may refuse an injunction, the appellate Court grants it, the revisional Court recalls the grant but the Supreme Court, sitting at the apex of the judicial hierarchy, reverses the order in revision, thereby restoring the order of injunction granted in the appellate Court, in the same or even in a modified form. In such cases, in the event of breach, to which Court an aggrieved party may take recourse? In other words, how is the expression, "Court granting an injunction" incorporated in Order 39, Rule 2(3) to be interpreted in such a situation. The answer does not seem to be simple and, accordingly, it would appear necessary to examine sub-rule (3) of Rule 2 of Order 39 in some detail and in due perspective of the other provisions in the Code, in order that proper construction of that provision be made.
11. In the first place, it must be noted that an order of interim injunction contemplated under Order 39, Rules 1 and 2, C.P.0 is, by its very nature, to operate only during the pendency of a suit. It is calculated to protect either or both the parties to the suit, while the suit pends in the Court. If, therefore, an appeal is taken, or Ls. Revision is preferred against the orders in appeal or the Supreme Court is approached, in the ultimate analysis, the entire exercise, in reality, is a continuation of the interlocutory proceedings, adjudicated upon in the trial Court and the exercise of power in each of the higher stages is that of the trial Court and is to hold field only during the pendency of the suit and not beyond it. Essentially and in substance, therefore, the ultimate result of the endeavor, up to the final stage, is the exercise of power vesting in the trial Court. It would appear, accordingly, that whatever be the ultimate order in such proceedings such order is never divested of its character as an order of the trial Court and it has to be assumed that the ultimate order of injunction, if any, must be related back to the trial Court and it is the trial Court, which should be held to have granted it, even though that be by way of correction brought about in a higher forum.
12. This line of reasoning can be supported by reference to section 2(14) of the Code of Civil Procedure, which defines an order, declaring it to mean "the formal expression of any decision of a Civil Court which is not a decree". It will be noticed that this definition stands in clear contradistinction with the definition of a Decree made in the earlier part of the same section viz. Section 2(2), wherein elements of conclusive determination are essential ingredients even though the adjudication may be either preliminary or final. While there is some authority to the effect that the expression order, as defined in section 2(14), refers to orders passed in proceedings other than a suit, such an interpretation involves reading something in the definition which is not there, since the definition does not envisage either expressly or by necessary implication, only an order passed in a proceeding other than a suit. In my view, the word order, as defined in section 2(14), would involve the decision of a Civil Court, at an interlocutory as well as a final stage of the proceedings, the distinguishing aspect of such adjudication being that it is not a Decree. Since the definition is all embracing, as the use of the word "means" therein suggests, all orders under the Code appear to be covered, except where the order does not qualify to be a "formal expression" of a decision of a civil Court. Whether or not such a decision is appealable under the Code or revisable is another matter and shall have to be determined with reference to the other provisions of the Code. This interpretation is supported by the observations of Allsop, J., in the case of Dulhin Janak Nandni Kunwari v. Kedar Narain Singh AIR 1941 All. 140 and of Qadeeruddin Ahmad, J., as he then was, in the case of H.M. Saya and Company v. Wazeer Ali industries PLD 1965 Karachi 603).
13. In the same context I would respectfully refer to the dicta of Karam Elahi Chohan, J., in the case of Bakhtawer etc. v. Amin etc.1980 SCMR 89 where the Hon'ble Judge, in effect, equated an order of injunction with that word, as defined under section 2(14) and found it to be enforceable under section 58 of the Code.
14. Coming directly to the question of the forum in which an application under order 39, Rule 2(3), C.P.C. Would lie, where the matter of injunction has been dealt with at more than one levels in the judicial hierarchy, some assistance may be had from the provisions of sections 36 and 37 of the Code. The first of these sections provides that the provisions of the Code relating to execution of decrees shall, so far as they are applicable, be deemed to apply to the execution of orders whereas the second envisages that the expression "Court which passed a decree" or words to that effect shall be deemed to include, where the decree has been passed in the exercise of appellate jurisdiction, the Court of first instance. It is thus obvious, applying the dicta in Bakhtawer's case that if an order of injunction is to be executed such execution can be made in the Court of first instance even where the Order of injunction was passed at an appellate or higher level. However, in Bakhtaver's case itself, the Supreme Court has distinguished the execution of an Order of injunction with punitive measures under Order 39, Rule 2(3), C.P.C. And has been pleased to observe that the matter of punishment can be dealt with by the Court which passed the order of injunction. With respect, it is to be pointed out that, what was in contemplation in Bakhtaver's case, was punitive action in the context of violation of an order of status quo passed during the pendency of appeal and this had two different angles to it, one pertaining to the proceedings before the District Judge and the other in the Supreme Court itself. As seen above, there can be no question that violation of such orders can be dealt with only in the forums in which pending proceedings have been subverted by violation of interim orders,
15. The question which still remains is as to what will happen in cases where two or more Courts have granted, varied, modified or otherwise substantially effected the orders of injunction. In such context relevant authority would appear to be the case of M.O. Ghani v. A.N.M. Mehmood PLD 1966 SC 802 where a Full Bench of the Supreme Court of Pakistan disapproved punishments levied by the High Court at Dacca under section 39, Rule 2(3), C.P.C., observing that such was alone the jurisdiction of the Court which granted the injunction and the injunction having been granted by the Munsif, but substantially modified by the District Judge, the plaintiff was left to pursue his remedy in the Court of Munsif, implying that even where an injunction is granted in appeal the Court of first instance remains the Court making the grant.
16. It seems to me that in this context the provisions of section 15 of the Code of Civil Procedure may also be relevant in that such provisions make the overall intention of the legislature manifest laying down that where a suit can be instituted in more Courts than one, it should be instituted in the Court of the lowest grade competent to try it. Obviously, this question is not in issue here but the principle certainly is. That principle is based on reasons of public policy and sound administration of justice to ensure that superior forums are not flooded with unnecessary work and no right of appeal or other remedy for correction is lost by approaching a higher Court at the very outset.
Therefore, it would stand to reason that even in cases where there have been several exercises in the context of grant of injunction it would be more logical to approach the trial Court in the event of breach because that Court, normally, would be seized of the case and in a better position to adjudicate upon the problem. This line of reasoning, apart from what has been said above, is further supported by the fact that such an interpretation would not deprive any party of any right of appeal.
17. Even so, effort must always be made to advance the remedy and suppress the mischief. The reasoning incorporated here cannot be permitted to cloud the legal position that there is no express provision in the Code precluding the exercise of power under Order 39 Rule 2(3) by a higher forum, which ultimately, grants the injunction. Besides, even in Sections 36 and 37, C.P.C, where an "order" is equated with a "decree", the expression "Court which passed a decree" is said to "include" the Court of first instance, thereby stopping short of altogether excluding the higher Court
(s) where the Decree may, actually have been passed. The conclusion, therefore, is that while an appellate Court, which granted the injunction, may not be precluded from considering a case of breach, an aggrieved party, in principle, should approach the Court in which the suit is pending.
Similarly, the appellate forum granting the injunction, if approached, should preferably refer the case back to the trial Court, unless, on the basis of material available before it, it is more convenient for it to exercise that jurisdiction. This alone seems to be the harmonious and beneficial interpretation of the provisions in order 39, Rule 2(3), C.P.C.
18. In this view of the matter, the Additional District Judge, by referring the applicant to the trial Court, cannot be said to have refused to exercise his jurisdiction, as such power of referring back always vested in him.
19. The order of the lower Appellate Court, however, is bad in so far as those transgressions are concerned which took place while the appeal was pending before it. In such matters, as seen above, that Court alone had jurisdiction. On a reference to the record, I find that grievance of this nature was also made, per application dated 17-4-1989, which was not disposed of along with the appeal, and, therefore, shall be deemed to be pending. The case, therefore, would go, on remand, to the lower Appellate Court to consider the question of the violation of the order of status quo, if any, while the appeal was pending. In this behalf as reaffirmed in Bakhtaver's case, the termination of the order would be immaterial, if the breach occurred while it held the field. The applicant for subsequent violations may approach the trial Court, as ordered by the Additional District Judge.
20. Today itself I had appointed a Commissioner to make site inspection, by a separate order. The Commissioner's report would be submitted in the trial Court, where it would be dealt with in accordance with law.
21. Accordingly, this revision has partly succeeded in terms as indicated above but there shall be no order as to costs.