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PETITIONER: SAMEE KHAN

       Vs.

RESPONDENT: BINDU KHAN

DATE OF JUDGMENT:       01/09/1998

BENCH: S. SAGHIR AHMAD, K.T. THOMAS

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Two neighbours  are engaged  in a  long drawn  fight in civil court  on a  small issue.  The fight  started  at  the lowest level  (Munsiff’s Court)  and they  have now  reached this apex  Court with a side issue which emanated therefrom. Defendant in  the suit  has defied  an order  of  ad-interim injunction and  plaintiff in  the suit  moved  for  punitive action against him. the trial court ordered him to be put in prison for  one month.  that  order  was  confirmed  by  the appellate Court,  but the High Court in revision quashed it. Plaintiff is  still classing his adversary on that issue and he has  reached this  court with  the special leave Petition against the High Court’s order.      The subject-matter of the suit is a small space of land used as  a means  of access  (gali) which abuts the house of both the parties. Plaintiff who filed the suit prayed for an ad-interim injunction  order restraining  the defendant from causing any  obstruction to  the use  of the said space as a gali. The trial Court which granted the temporary injunction order on  16.10.1984  required  the  defendant  to  maintain status-quo in  regard to  the suit property and subsequently the ad-interim  order was  made absolute. but within a month thereof plaintiff complained to the court that the defendant had put  up a  brick wall  in the  disputed space  in  utter defiance of  the injunction  order and  moved for initiating action under Order 39 Rule 2A of the Code of Civil Procedure (for short ’the Code’). The trial court found that defendant had put up the obstruction wall in disobedience of the order of injunction  and directed  him to  be  detained  in  civil prison for  a period  of  one  month.  The  said  order  was confirmed in appeal by the Civil Judge (Senior Division).      Before  the   High  Court,  defendant  adopted  a  twin approach though he did not dispute the factual position that the impugned  obstruction was made by him. firstly he raised a contention  that the  Court  cannot  order  his  detention without ordering  attachment of his property. Alternatively, he pleaded  for mercy  of the  court on  the facts  that the obstruction  has   subsequently  been  removed  and  he  has tendered unconditional  apology to  he court. Learned single Judge of  the High  Court of Rajasthan who heard the matter,

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accepted both pleas and exonerated him from punishment.      Learned counsel for the petitioner contended first that the view  taken by the High Court that no Court can direct a contumacious party to be detained in prison without ordering his property  to be attached, is contrary to law and settled legal position.  He cited certain decision of different High Courts  in   support  of  his  contention.  In  fact,  those decisions were  cited before the High Court also but learned single  Judge   dissented  from   them  and  concluded  that attachment of  property of the defiant party is sine qua non for resorting to the action of sending him to prison.      Order 39  Rules 1 and 2 of the Code deal with powers of the Court  to grant  temporary injunction.  Rule 2A has been inserted in  the order  as per  Act 104/1976.  Rule 2A reads thus:-      " Consequence  of  disobedience  or      breach of  injunction -  (1) In the      case   of   disobedience   of   any      injunction granted  or other  order      made under  Rule 1  or  Rule  2  or      breach of any of the terms on which      the injunction  was granted  or the      order made,  the Court granting the      injunction  or   making  the  order      made,  the   Court   granting   the      injunction or  making the  order or      any court  to  which  the  suit  or      proceeding  is   transferred,   may      order the  property of  the  person      guilty  of   such  disobedience  or      breach to be attached, and may also      order such person to be detained in      the civil  prison for  a  term  not      exceeding three  months, unless  in      the meantime  the Court directs his      release.      (2) No  attachment made  under this      rule shall remain in force for more      than one  year, at the end of which      time, If the disobedience or breach      continues,  the  property  attached      may  be   sold  and   out  of   the      proceeds, the Court, may award such      compensation as  it thinks  fit  to      the injured party and shall pay the      balance, if  any, to  the  property      entitled thereto."      Along with  the insertion of the said Rule, legislature has deleted  the erstwhile corresponding provision which was sub-rule (3) to Rule 2. It was worded as follows:-      " In  case of  disobedience, or  of      breach of any such terms, the Court      granting an  injunction  may  order      the property  of the  person guilty      of such  disobedience or  breach to      be attached and may also order such      person to  be detained in the civil      prison for a term not exceeding six      months, unless  in the meantime the      Court directs his release."      It can  be noted from the "Objects and Reasons" for the aforesaid amendment  in 1976 that it is intended to make the provision applicable  also to  cases where injunction orders passed under  Rule 1  are disobeyed,  and for  empowering  a transferee court also to exercise such powers. Otherwise the

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deleted provision is the same as the present sub-rule 2A(1).      Learned  Single  Judge  Considered  the  said  Rule  in juxtaposition with  Order 21  Rule 32(1) of the Code and has observed that the latter provision deals with execution of a decree of  injunction against  a judgment  debtor while  the former deals  with  ad-interim  or  interlocutory  order  of injunction by  providing remedies for disobedience or breach of such orders.      Learned Judge  pointed out  that under Order 21 Rule 32 the wording  is that  the "decree  may be  enforced  by  his detention in  the civil  prison or  by the attachment of his property or  by both".  The  use  of  the  words  "or  both" according  to   the  learned   Judge  must   be   understood differently from  the words  "and may  also" as  used in the case of  interlocutory order  of injunction  as  the  former definitely indicated that either of the alternatives or both of them  can be  resorted to.  The following are the reasons adverted to by the learned judge:      "This distinction  between the  two      remedies, therefore,  suggests that      the conjunction  ’and’ used  in the      language of  sub-rule 1  of Rule 2A      of Order  39 CPC should not be read      as ’or’  as has  been used  in  the      language of  sub-rule 1  of Rule 32      of Order  21.  It  may  further  be      noted that  the use  of  the  words      ’and may  also’ in  the latter part      of sub-rule 2-A(1) clearly suggests      that   the    remedy    of    civil      imprisonment of  the  contemner  is      not an  alternative remedy  but  an      ’additional  remedy’.   Alternative      remedies give  option to choose one      or he other remedy from amongst the      remedies provided and such remedies      are    no     co-existent    unless      specifically provide  as  has  been      done in  Order 21 Rule 32 by use of      the  words   ’or  both’.   In   the      language of Order 39 Rule 2A(1) the      use of  the words  ’and  may  also’      indicates  the   intention  of  the      Legislature  that   the  order   of      detention of the contemner in civil      imprisonment  may   be  passed   in      ’addition   to’    the   order   of      attachment of  his property and not      ’in lieu’ thereof."      Learned  Judge  then  proceeded  to  consider  it  from another angle,  for which the main distinction between civil contempt and  criminal contempt was highlighted and observed that enforcement  of the  order in civil contempt is for the benefit of  one party  against another,  while the object in criminal contempt  is to  upheld "the majesty of law and the dignity of  the Court". In that context the High Court added thus:      " Viewed  from the above angle also      I  am   of  the  opinion  that  the      punishment of civil imprisonment in      the   case    of    violation    or      disobedience of  the  order  of  an      injunction of  a  Court  is  to  be      awarded ’in  addition to’   and not      ’in   lieu    of’   or    ’in   the

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    alternative’ of  the punishment  of      attachment of  his  property.  Rule      2A(1) gives  an "additional"  power      to the  Court, as  is indicated  by      the use  of the  words  "  and  may      also"  and   not  an  "alternative"      power, as would have been indicated      if the  word "or" had been used, to      punish the contemner by his sending      to civil  prison besides  attaching      his property.  In  my  opinion  the      legislature  cannot  be  attributed      with  an  intention  of  using  the      words "and  may also" in the latter      part of sub- rule (1) of Rule 2A of      the Order  XXXIX CPC unnecessarily,      superfuously   and    without   any      purpose. Those  words, to  my mind,      necessarily suggest  that the order      of sending  the contemner  to civil      prison  may   be  passed   only  in      addition to the order of attachment      of his property."      At the  first blush  the above  interpretation appeared attractive. But  on a  closer scrutiny  we  feel  that  such interpretation is  not sound  and it  may  lead  to  tenuous results. No  doubt the  wording as  framed in  Order 21 Rule 32(1) would  indicate that  in enforcement of the decree for injunction a  judgment-debtor can  either be  put  in  civil prison or  his property  can be  attached or  both the  said courses can  be resorted  to. But  sub-rule (5)  of Rule  32 shows that  the court need not resort to either of the above two courses  and instead the court can direct the judgement- debtor the  perform, the  act required  in the decree or the court can  get the  said act  done through some other person appointed by  the court at the cost of the judgement-debtor. Thus, in  execution of  a decree  the Court  can resort to a three fold  operation against  disobedience of the judgment- debtor in  order to  compel him to perform the act. But once the decree  is enforced the judgment-debtor is free from the tentacles of  Rule 32. A reading of that Rule shows that the whole operation  is for  enforcement of  the decree.  If the injunction or  direction was subsequently set aside or if it is satisfied the utility or Rule 32 gets dissolved.      But  the   position  under  rule  2A  of  Order  39  is different. Even if the injunction order was subsequently set aside the  disobedience does  not get  erased. It  may be  a different matter that the rigour of such disobedience may be toned down  if he  order is subsequently set aside. for what purpose the  property is  to be  attached  in  the  case  of disobedience  of  the  order  of  injunction?  Sub-rule  (2) provides that if the disobedience or breach continues beyond one year  from the date of attachment the court is empowered to sell  the property  under attachment  and compensate  the affected party  from such  sale proceeds.  In  other  words, attachment will  continue only  till the breach continues or the disobedience  persists subject  to a  limit of  one year period. If  the  disobedience  ceases  to  continue  in  the meanwhile the  attachment also  would cease. Thus even under Order 39  Rule 2A  the attachment  is a  mode to  compel the opposite  party   to  obey  the  order  of  injunction.  But detaining the disobedient party in civil prison is a mode of punishment for his being guilty of such disobedience.      The words  "and may also" appearing in R.2A were sought to be  given a  meaning that the course suggested thereafter

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in the  Rule has to be resorted to as an optional additional step, a  resort to  which  would  be  impermissible  without complying with  the first  course suggested in the Rule. The word "also"  has different attributes and its meaning is not to be  confined to  "further more".  In legalistic  use, the word "also"  can be  employed to  denote other  meninges  as well. In  Black’s Law  Dictionary the  word  "also  has  the following variety of meanings:      Also. Besides  as well in addition;      likewise,    in     like    manner;      similarly; too;  withal. Some other      thing,     including,      further,      furthermore, in  the  same  manner,      moreover; nearly  the same  as  the      word "and" or "likewise".      Since the  word "also"  can have  meaning as  such  "as well" or  "likewise", can  not those  meaning  be  used  for understanding the  scope of  the trio  words "and may also"? Those words  cannot altogether  be detached  from the  other words in  the sub-rule.  Here again  the word "and" need not necessarily be  understood as  denoting a conjunctive sense. In Stroud’s  judicial Dictionary  it is stated that the word "and" has  generally a cumulative sense, but sometimes it is by  force   of  a   context  read   as   "or"   Maxwell   on "interpretation of Statutes" has recognised the above use to carry out  the interpretation  of the  legislature. This has been approved  by this Court in Ishwar Singh vs. State of UP {AIR 1968  SC 1450}.  The principle of Noscitur A Sociis can be profitably  be used  to construct the word "and may also" in the sub-rule.      Hence the  words "and  may also"  in Rule 2-A cannot be interpreted the  context as  denoting to  a  step  which  is permissible only  as additional to attachment of property of the opposite party. If those words are interpreted like that it may  lead to  an anomalous  situation. If  the person who defies the injunction order has no property at all the court becomes totally  powerless to  deal with  such a disobedient party. he  would be  immuned from  all consequences even for any open  defiance of  a court order. No interpretation hall be allowed  to bring  about  such  a  sterile  or  anomalous situation (vide  Constitution Bench  in Vidya  Charan Shukla vs. Khubchand  Baghel [AIR  1964  SC  1099].  The  pragmatic interpretation, therefore,  must be  this: It is open to the court to  attach the property of the disobeying party and at the same  time the  court can  order him  to be  detained in civil prison also if the court deems it necessary, Similarly the court  which orders  the person  to be detained in civil prison can  also attach  the property  of that  person. Both steps can  be resorted  to or  one of  them  alone  need  be chosen. It  is left  to the court to decide on consideration of the fact situation in each case.      It is pertinent to point out that Rule 2(3) of Order 39 of the  Code before  that sub-rule was deleted by Act 104 of 1976, has been interpreted by different High Courts in India and in  almost all  such  decisions  the  High  Courts  have adopted a  similar construction as we have made above. (that sub-section has  been quoted earlier). It is almost the same as Rule 2A and the slight distinction is not material for us in this case. Vide, a Full Bench of the Madras High Court in Ottapiurakkal Thazath  Suppi & ors. vs. Alabi Mashur Koyanna Koya Kunhi Koya (AIR 1917 Madras 448)  a Single Judge of the Patna High  Court in Nawal Kishore Singh & ors. vs. Rajendra Prasad  Singh   &  Ors.   (AIR  1976  Patna  56)  which  was subsequently approved  by a  Division Bench of the same High Court. Kapildeo  Upadhyay vs.  Raghunath  Pandey  [AIR  1978

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Patna 212].      We, therefore,  disagree with the interpretation placed by the  learned Single Judge in the impugned order regarding the scope  of Rule  2A of  Order 39 of the Code. However, we are in  agreement with  him that  in view  of the subsequent actions done  by the respondent (by removing the obstruction and tendering  unconditional apology to the court) it is not necessary to  put the  respondent in  prison. We, therefore, dismiss  this   special  leave   petition  subject   to  the clarification made above regarding the legal position.