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PETITIONER: TAYABBHAI M. BAGASARWALLA & ANOTHER

       Vs.

RESPONDENT: HIND RUBBER INDUSTRIES PRIVATE LIMITED ETC.

DATE OF JUDGMENT:       19/02/1997

BENCH: B.P. JEEVAN REDDY, SUHAS C. SEN

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T B.P.JEEVAN REDDY,J.      A question  of some  general importance arises in these appeals. The  question is   whether a person who disobeys an interim injunction  made by  the Civil Court can be punished under Rule  2-A of  Order 39  of the Code of Civil Procedure where it  is ultimately  found that  the Civil  Court had no jurisdiction to entertain and try the suit? A learned Single Judge of the Bombay High Court has opined, following certain earlier decisions  of that  court, that  he cannot  be.  The reason given  is: once  it is found that the Civil Court has no jurisdiction  to entertain  the said  suit,  all  interim orders made  therein must  also  be  deemed  to  be  without jurisdiction and,  hence, a  person  flouting  such  interim orders  cannot   be  punished   for  their   violation.  The correctness of  the said vie is questioned in this appeal by the plaintiff-appellant.      The first  defendant, Hind  Rubber  Industries  Private Limited, is  the tenant  of the  ground floor  in  the  suit house. The appellant is the landlord. On August 25, 1985 the said building was destroyed by fire.      On February  11, 1991 the appellant filed a suit in the City Civil  Court, Bombay  (Suit  No.1407  of  1991)  for  a perpetual injunction  restraining the  first defendant  from carrying on  any construction  in  the  suit  premises.  The appellant’s case  was that  inasmuch as  the building, which was the  subject-matter of  tenancy between the parties, has been destroyed  by fire,  the tenancy of the first defendant has come  to an  end. (The  second respondent  herein is the Managing Director  of the first respondent and was impleaded as the  second defendant in the suit.) The appellant applied for a  temporary injunction  restraining the first defendant from carrying  on any construction. An ad-interim injunction was granted  by the  Civil Court  on February  15, 1991. The first defendant  applied for vacating the interim injunction but his application was dismissed on July 24, 1991.      Meanwhile, on  April 11,  1991 the  plaintiff moved the Civil Court for punishing the defendants under Order 39 Rule 2-A of  the Civil  Procedure Code  for flouting the order of interim injunction.  While the said application was pending,

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the defendants moved an application under Section 9-A of the Civil  Court  Procedure  Code  (Maharashtra  Amendment)  for determining the  issue of jurisdiction of the Civil Court to entertain the  said suit.  On November  29, 1991  the  Civil Court affirmed the temporary injection and also held that it did possess the jurisdiction to try the said suit.      On December  2,  1991,  the  Civil  Court  allowed  the application/motion filed  by the  appellant-landlord against Defendants 1  and 2  under Order  39 Rule  2-A of  the Civil Procedure Code.  It  would  be  appropriate  to  notice  the finding recorded  in the  said order.  The court found, on a consideration of  the material  placed before  it, "that the construction is,  to say  the least  massive.  Some  of  the photographs show  construction materials  being certain iron girders, columns  and beams  being  brought  to  the    suit premises. The  columns which are erected are shown to be dug from the ground itself right upto the first floor level..... These photographs  also show  massive reconstruction work in progress  right   from  the   ground  floor.  There  can  be absolutely no  doubt that  the suit premises as they were on the date  of the  injunction order  and on  the date  of the Architect’s visit  to the  suit premises  have been  altered beyond comprehension".  The  Civil Court also dealt with the plea of  the first  defendant that the said construction has not been  put up  by Defendants I and 2 but by other tenants and, in  particular;  by  Defendants  3  and  4.  The  court rejected the  said theory holding that the fourth respondent has been  put forward  as a  proxy who has voluntarily taken the blame  upon himself.  The court  found "the work carried out......is   after the  injunction order  and hence  is  in breach of  it. The  Respondent No.4  has both  callously and impertinently come  to the  rescue of  Respondent No.2". The court finally found: "it can be seen from the photographs that construction activities have been carried on undeterred by the  order of  injunction. In fact, it has been continued despite applications  to set  aside that  order and  despite police warnings  in respect  of above..... The breach of the order  is  more  than  substantiated.  The  disobedience  of Respondent No.2  acting on  behalf of the first defendant is clearly shown".  Accordingly, the court committed the second defendant-respondent to  imprisonment for  a period  of  one month. The  court made  the  following  further  significant direction:      " Since the construction is clearly      both unauthorized  and in breach of      the order  of injunction  and since      there are no daintier orders passed      in the  first defendants  suit  No.      4597 of 1987 in the Chamber Summons      the 3rd  defendants shall forthwith      take  action   under  their  notice      dated 23.5.91.  The Court  Receiver      has already been appointed Receiver      of the  property in the plaintiff’s      Notice of  Motion No.  949 of 1991.      The  Court   Receiver  shall   take      possession of the suit premises and      seal  the   same  until   the   3rd      defendants act  upon  their  notice      dated 23.5.91.  The first defendant      shall pay  costs of  this Notice of      Motion    fixed    at    Rs.1,000/-      condition precedent."      In July,  1992 the  Defendants 1 and 2 filed appeals in the Bombay  High Court  against the order making the interim

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injunction absolute  pending the suit. The High Court stayed the order  punishing the  defendant for contempt but did not stay  the   order  granting  injunction  in  favour  of  the plaintiffs. On  July 15,  1994, the  High Court  appointed a commissioner to  ascertain whether the construction activity was still  being carried  on by  the defendants. On July 18, 1994 the  Commissioner submitted his report stating that the construction  work   was  still  being  carried  on  in  the premises. After perusing the report of the Commissioner, the High Court passed orders on July 28, 1994 vacating the order dated July 30, 1992 (where under it had stayed the operation of the  order of the Civil Court punishing the defendant for contempt). It  would  be  relevant  to  notice  the  finding recorded in  this order:      "The Commissioner visited the site.      In spite  of  being  aware  of  the      Order of this Court, the Appellants      did not  permit the Commissioner to      inspect the  site. The Commissioner      had to  again has reported that the      construction work is going on. Thus      it is  clear that  in spite  of  an      Order which  has not  been  stayed,      the Appellants  are going  on  with      the construction. They are wilfully      violating  Order   of  a  Competent      Court.   ....... Today  neither the      Appellant nor  their Advocates  are      present. It is clear that the whole      idea is  to while  away time. In my      view,  the   Appellants   who   are      continuing to  commit  breaches  of      Orders of  Court, are  not entitled      to any stay from this court.           Accordingly,   Civil    Appeal      No.6513 of  1991 is  dismissed with      costs........      it  is   clarified  that   now  the      Impugtned Order  must  be  complied      with and  Court receiver  must take      possession. Court  Receiver to  act      on an  ordinary copy  of this Order      certified    by     Advocate    for      Respondents 1 and 2 as true copy."      It appears  that Defendants 1 and 2 applied for setting aside the said order (dated July 28, 1994). It was dismissed by the  High Court on November 7, 1994. It would be relevant to notice the contents of this order:      "Mr.   Apte    (counsel   for   the      plaintiff)   submitted   that   the      appellant cannot  be heard  on this      Civil  Application.   He  submitted      that they  are in  contempt of  the      court   inasmuch   as   they   have      wilfully and blatantly violated the      injunction order. He submitted that      unless  the   contempt   is   first      purged, the  Appellants  cannot  be      heard.           I see  great substance in this      contention.  The   Applicants  were      asked whether  they were willing to      purge the  contempt and restore the      premises to  the state they were in      1991.  The   Applicants   are   not

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    willing to do so. The whole attempt      has been  to try  and confuse.  The      whole attempt  has been  to try and      justify.  By   the  ex-parte  order      dated 11.2.1991 as confirmed by the      order   dated    21.11.1991,    the      Applicants  have   been  restrained      from carrying  out any construction      work. As  is set  out hereafter, it      is clear  to court  that inspite of      this injunction order, construction      work has  been  carried  on  almost      continuously by the Appellants."      The learned  Judge then  referred  in  extenso  to  the elaborate  material  placed  before  him  and  recorded  the finding that  all these  reports clearly indicate that there is wilful  and blatant  breach of order of injunction passed by the City Civil Court. " It is clear that in breach of the injunction order, there has been construction. The breach is wilful and  blatant. The extent to which the Appellants have gone is  also indicated  by the  fact that, as stated above, inspite  of   knowledge  of   order  of   this  Court,   the Commissioner  appointed   by  this   court   was   initially obstructed. To  Court it  is very clear that here is a party who has  absolutely no  regard for  the orders of the court. Such a  party must be made to bear the consequences of their own action......To  Court it  is clear  that the  applicants have chosen  to wilfully  and blatantly flouted the order of injunction. It  may be  that the Applicants have a very good case. However,  no matter how good a case a party has, in my view, it  is not  open to a party to flout orders of courts. If a  party wilfully  flouts an order of the court then such party can  expect no equitable relief from the court. Such a party must  be made  to bear the consequences of his action. Otherwise all parties will ignore or flout orders of courts. When caught  out they  would then  throw themselves  at  the mercy of  the court.  In my  view, in  cases like  this, the party in  default must  not be allowed to enjoy the benefits of his  action. To  appoint Applicants as Agent of the Court Receiver would amount to giving them benefit of their wrong. In my  view, the  order  dated  28.7.1991  must  be  and  is sustained. The  application to  appoint  the  Applicants  as agents of Court Receiver is rejected."      On July  3, 1996  civil revision  application No.888 of 1991 preferred  by the  defendants against  the order of the Civil court  (holding that  it had  jurisdiction to  try the suit) was  allowed. The High Court held that the Bombay City Civil Court  had no  jurisdiction to entertain the said suit in view  of section  28 of  the Bombay Rent Act. Disagreeing with the decision of the Kerala High Court, the Bombay Court held that  the destruction of the house by fire does not put an end  to the  tenancy of  the defendants. (The judgment of the  High  Court  is  reported  in  Special  Land  Execution Officer,  Bombay   &  Bombay   Sabarban  District  Municipal Corporation v.  Vishanji Virji  Mepani &  Another [AIR  1996 Bombay 369).  The plaintiff (landlord) filed a Special Leave Petition against the said order but it was dismissed by this court on  September 3,  1996. While  dismissing the  Special Leave Petition,  this Court  directed that  the tenant shall make construction/alteration,  if any,  only  in  accordance with law  and also  with the  prior permission of the Bombay Municipal Corporation. [In this order, it was mentioned that the tenant  is in  this possession  of the premises but this portion was deleted later by order dated 1.10.1996.]      In the light of and on the basis of the decision of the

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Bombay High Court dated 3.7.96 in Vishanji Virji Mepani, the first defendant  applied to the High Court for permission to occupy and  carry on  his business  in the  suit premises as before. It  asked for  a direction  to the Court Receiver to deliver possession  of the  suit premises  to it.  By  order dated 13.9.96,  the High Court held that the first defendant is entitled  to the relief asked for by him. After referring to the  judgment of  the High Court in Vishanji Virji Mepani and to  the orders  of  this  Court  in  the  Special  Leave Petition, the High Court observed: "therefore the view taken by this  Court that  city Civil Court has no jurisdiction to entertain  this   suit  filed  by  Respondents  came  to  be confirmed. The  petitioner herein has now prayed that it may be allowed  to occupy  and carry on business in the premises which were  occupied by  it without  paying any  payment  or royalty and  security. If  the City Civil Court is having no jurisdiction to  decide the  suit  itself,  all  the  orders passed therein come to an end and are required to be treated as non-est.  The learned  counsel for  Respondents tried  to point out  that  Petitioner  is  guilty  of  violating  some interim or  interim orders  passed in  the suit and contempt proceedings  in  that  respect  are  pending.  But  that  is immaterial and  irrelevant for  consideration of  the relief prayed by  Petitioner, particularly when the original orders passed were  without jurisdiction.  Hence, in my opinion (a) deserves to  be granted  which runs  as  follows:  ‘(a)  the Petitioner/Appellant be  allowed to  occupy and to carry out business in  their premises  as before,  without royalty and security’ Civil  Application granted in terms of prayer (a). The Receiver  to act  on the basis of the authenticated copy by the  Sheristedar of  this Court.  The learned Counsel for Respondents prays for stay of the Order.  Stay refused."      The plaintiffs  questioned the  aforesaid  order  dated 13/9/96  by   way  of   Special  Leave  Petition  which  was entertained by  this Court  by its  order dated  October  1, 1996. Special  leave was  granted. This  Court directed that "the respondents  shall not be entitled to put in possession of the  premises till  the appeal  is decided  by  the  High Court. We request the High Court to dispose of the appeal or case on  November 1996."  [The respondents in the said quote means the  defendant  herein  and  the  appeal  referred  to therein is  the appeal  preferred by  the Defendants 1 and 2 against the  order dated  2.12.1991 holding Defendants No. 2 guilty of  violating the temporary injunction and sentencing him to  one month’s  imprisonment under Rule 2-A of Order 39 of the Civil Procedure Code.]      Pursuant to  the request  of this Court aforementioned, the Bombay  High Court  has disposed  of the  aforementioned appeal (Appeal  from Order  No.1407 of  1991) on November 1, 1996. The  High Court  has allowed  the appeal  holding that inasmuch as  the Bombay City Civil Court is found to have no jurisdiction to entertain the suit, Defendant 1 and 2 cannot be punished for disobeying the interim orders made in such a suit, for  the reason  that the  said interim orders made in such a suit, for the reason that the said interim order must equally be  held to  be without jurisdiction. This appeal is preferred against the said order of the High Court.      Mr. Soli  Sorabjee, learned  counsel for the appellant- plaintiff [landlord  of  the  suit  premises]  assailed  the impugned order  of the  High Court both on principle as well as with reference to Section 9-A of the Civil Procedure Code [Maharashtra Amendment].  Learned  counsel  placed  reliance upon  certain   decisions,  which  we  shall  refer  at  the appropriate  stage.   Sri  Puri,  learned  counsel  for  the defendants, however,  supported the reasoning and conclusion

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arrived at by the High Court. The learned counsel, supported by Sri  V.A.Mohta, submitted that although defendants argued before the  learned Single  Judge [who  passed the  impugned order] that  the finding  of fact  recorded by  Civil  Court (that  Defendant   1  and  2  have  violated  the  order  of injunction issued  by the  court) is  not sustainable in the facts and  circumstances of  the case, the learned Judge has not chosen  to deal  with the  same probably  for the reason that he  has allowed  their appeal  on the  question of law. Counsel submitted  that Defendants  1 and 2 have not carried out any construction in the suit premises after the grant of injunction by the Civil Court and that whatever construction was done  was done earlier to the grant of injunction by the Civil court.      The first  and foremost  question  in  this  appeal  is whether the  High Court  was right  in holding that since it has been  found ultimately  that  the  Civil  Court  had  no jurisdiction to  entertain the suit, the interim orders made therein are  non-est and  hence Defendants 1 and 2 cannot be punished for  their violation  even if  they had flouted and disobeyed the  said interim  orders when they were in force. We are of the considered opinion that the High Court was not right in saying so. The landlord-plaintiff came forward with the suit  alleging that  by virtue  of the fire resulting in the destruction  of the  suit  house,  the  relationship  of landlord and  tenant between  the parties has come to an end and, therefore,  he  requested  the  court  to  injunct  the defendants from  carrying on  any construction  on the  suit premises without  their permission and without obtaining the sanction  from   Municipal   Corporation.   The   defendants questioned the  jurisdiction of the Civil Court to entertain the suit.  According to  them, the  building was not totally destroyed and  that,  in  any  event,  the  relationship  of landlord and  tenant has not came to an end on that account. The defendants’  plea was  rejected by  the Civil  Court. It held that it did have the jurisdiction to try the said suit. On appeal,  however, the  High Court,  disagreeing with  the decision of   another  High court, held that relationship of landlord and  tenant has  not come to an end for  the reason suggested by  the plaintiff  and that the Civil Court had no jurisdiction to  entertain the suit in view of Section 28 of Bombay Rent  Act. All  this took about six years, i.e., from 1991 to  1996. It  is not  suggested nor can it be suggested that the  suit was  filed by the plaintiff in the City Civil Court only  with a  view to avoid the Rent Control Court nor can it  be suggested  that they  approached the  Civil Court knowing full  well that  the Civil Court had no jurisdiction to try  that suit.  It is  evident that  they approached the Civil Court  bonafide, thinking  that it had jurisdiction to try their  suit. They  were confirmed  in their  view by the Civil Court. It is true that ultimately the High Court found against them but even there, it must be noticed, they did so disagreeing with  a decision  of the  Kerala High Court. It, therefore, cannot  be  said  that  the  plaintiffs  did  not approach the Civil Court bonafide.      The next  thing to  be noticed  is that certain interim orders were  asked for  and were  granted by the Civil Court during this  period. Would it be right to say that violation of and  disobedience to  the said orders of injunction is no punishable because  it has  been found  later that the Civil Court had no jurisdiction to entertain the suit. Mr.Sorabjee suggests that  saying so  would be subversive of the Rule of Law and would seriously erode the majesty and dignity of the court. It  would mean,  suggests learned  counsel,  that  it would be  open to  the defendants-respondents  to decide for

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themselves  whether   the  order   was   with   or   without jurisdiction and  act upon  that belief.  This can never be, says the  learned counsel.  He further  suggests that if any party thinks  that an  order made  by  the  Civil  Court  is without jurisdiction  or is contrary to law, the appropriate course open  to him  is to approach that court with the plea and ask  for vacating the order. But it is no open to him to flout the  said order. But it is no open to him to flout the said order assuming that the  order is without jurisdiction. It  is   this  principle   which  has  been  recognised  and incorporation  in   Section  9-A  of  Civil  Procedure  Code (inserted by Maharashtra Amendment Act No. 65 of 1977), says Mr.Sorabjee. Section 9-A reads as follows:      "9-A. Where  by an  application for      interim  relief  is  sought  or  is      sought to  be set aside in any suit      and objection  to  jurisdiction  is      taken, such  issue to be decided by      the Court  as preliminary  issue at      hearing of the application.      (1)  If,  at  the  hearing  of  any      application of  granting or setting      aside an  order granted any interim      relief,   whether    by   way    of      injunction,   appointment    of   a      receiver of  otherwise, made in any      suit,   an    objection   for   the      jurisdiction  of   the   court   to      entertain such suit is taken by any      of the  parties to  the  suit,  the      Court shall proceed to determine at      the hearing  of   such  application      the issue as to the jurisdiction as      a preliminary issue before granting      the  interim   relief.   Any   such      application  shall   be  heard  any      disposed  of   by  the   Court   as      expeditiously as possible and shall      not in any case be adjourned to the      hearing of the suit.      (2)  Notwithstanding       anything      contained in  sub-section  (1),  at      the    hearing    of    any    such      application, the  court  may  grant      such  interim   relief  as  it  may      consider     necessary      pending      determination   by    it   of   the      preliminary    issue     to     the      jurisdiction."      According to  this section if an objection is raised to the  jurisdiction   of  the  court  at  the  hearing  of  an application for  grant of,  or for vacating, interim relief, the court  should determine that issue in the first instance as a  preliminary issue  before granted or setting aside the relief already  granted. An application raising objection to the jurisdiction  to the  court is directed to be heard with all expedition. Sub-rule (2), however, says that the command in sub-rule  (1) does  not preclude  the court from granting such interim relief as it may consider necessary pending the decision on  the question  of jurisdiction.  In our opinion, the provision  merely states  the obvious. It makes explicit what is  implicit in  law. Just  because an objection to the jurisdiction is  raised, the  court does not become helpless forthwith -  nor does  it become  incompetent to  grant  the interim relief.  It can.  At the  same time,  it should also

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decide the objection to jurisdiction at the earlier possible moment. This  is the  general principle  and  this  is  what Section 9-A  reiterates. Takes this very case. The plaintiff asked for temporary injunction. An ad-interim injunction was granted. Then  the defendants  came forward objecting to the grant of  injunction and  also raising  an objection  to the jurisdiction  of   the  court.   The  court  over-ruled  the objection as to jurisdiction and made the interim injunction absolute.  The   defendants  filed  an  appeal  against  the decision on  the question of jurisdiction. While that appeal was pending,  several other  interim orders were passed both by the Civil Court as well as by the High Court. Ultimately, no doubt,  High Court  has found that the Civil Court had no jurisdiction of  entertain the  suit but all this took about six years.  Can it  be said  that orders passed by the Civil Court and  the High  court during  this period  of six years were all  non-est and  that it  is open to the defendants to flout  them   merrily,  without  fear  of  any  consequence. Admittedly, this  could not  be done  until the High Court’s decision on  the question  of jurisdiction.  The question is whether the  said decision  of the  High Court means that no person can  be  punished  for  flouting  or  disobeying  the interim/interlocutory orders while they were in force, i.e., for violations  and  disobedience  committed  prior  to  the decision of  the High Court on the question of jurisdiction. Holding that  by virtue  of the  said decision  of the  High Court [on  the question  of jurisdiction],  on  one  can  be punished thereafter  for disobedience  or violation  of  the interim orders  committed prior  to the said decision of the High Court,  would indeed  be subversive  of rule of law and would seriously  erode the  dignity and the authority of the courts. We  must repeat that this is not even a case where a suit was  filed in wrong court knowingly or only with a view to snatch  an interim order. As pointed out hereinabove, the suit was  filed in  the Civil Court bonafide.  We are of the opinion that in such a case the defendants cannot escape the consequences of  their disobedience  and  violation  of  the interim injunction  committed by  them  prior  to  the  High Court’s decision on the question of jurisdiction.      In Shiv Chander Kapoor v. Amar Bose [1990 (1) SCC 234], J.S.Verma, J.  speaking for  a 3-Judge  Bench observed thus, with reference  to the  statement of  law at  pp.351-353  of Wade’s Administrative Law [6th Edn.]: "‘void’ is meaningless in an  absolute sense;  and ‘unless the necessary proceeding are taken at law to establish the cause of invalidity and to get it  quashed  or  otherwise  upset,  it  will  remain  as effective for  its ostensible purpose as the most impeccable of orders’.  In the  words of Lord Diplock, ‘the order would be presumed  to be valid unless the presumption was rebutted in competent legal proceedings by a party entitled to sue’."      To the same effect is the opinion of Jagannatha Shetty, J. in  State of  Punjab & Ors. v. Gurdev Singh [1991 (4) SCC 1].      "If an  Act is  void or ultra vires      it  is  enough  for  the  court  to      declare  it  so  and  it  collapses      automatically. It  need not  be set      aside.  The   aggrieved  party  can      simply seek  a declaration  that it      is void and not binding upon him. A      declaration  merely   declares  the      existing state  of affairs and does      no ‘quash’  so as  to produce a new      state of affairs.           But nonetheless  the  impugned

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    dismissal  order   has   at   least      defacto operation  unless and until      it  is   declared  to  be  void  or      nullity  by  a  competent  body  or      court. In Smith v. East Elloe Rural      District Council, 1956 A (736) 769:      (1956) 1  All  ER  855,  871)  Lord      Radcliffe observed: ‘An order, even      if not made in good faith, is still      an    act    capable    of    legal      consequences. It  bears no brand of      invalidity on  its forehead. Unless      the necessary proceedings are taken      at law  to establish  the cause  of      invalidity and  to get  it quash or      otherwise upset, it  will remain as      effective   for    its   ostensible      purpose as  the most  impeccable of      orders.’           Apropos  to   this  principle,      Prof.  Wade   states:  (See   Wade:      Administrative   Law,    6th   edn.      p.352)’  the   principle  must   be      equally true even where the ‘brand’      of invalidity  is plainly  visible;      for  there   also  the   order  can      effectively be resisted in law only      by obtaining  the decision  of  the      court. Prof.  Wade  sums  up  these      principles: (Ibid)           ‘The truth  of the  matter  is      that the  court will  invalidate an      order only  if the  right remedy is      sought by  the right  person in the      right        proceedings        and      circumstances.  The  order  may  be      hypothetically a  nullity, but  the      court  may   refuse  to   quash  it      because of  the plaintiff’s lack of      standing,  because   the  does  not      deserve  a   discretionary  remedy,      because he  has waived  his rights,      or fore some other legal reason. In      any such  case,  the  ‘void’  order      remains  effective   and   is,   in      reality, valid.  It follows that an      order may  be void  for one purpose      that an  order may  be void for one      purpose and  valid for another; and      that it  may be  void  against  one      person but valid against another."      We may also refer to yet another decision of this Court in Ravi S.Naik v. Union of India [1994 Suppl. (2) SCC 641 at 662] S.C.  Agrawal, J.,  speaking for  the  Division  Bench, observed:      "   In    the   absence    of    an      authoritative pronouncement by this      Court the  stay order passed by the      High Court  could not be ignored by      the Speaker  on the  view that  his      order could not be a subject-matter      of  court   proceedings   and   his      decision was  final. It  is settled      law that   an  order,  even  though      interim in nature, is binding still

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    it is  set  aside  by  a  competent      court and  it cannot  be ignored on      the ground  that  the  court  which      passed    the    order    has    no      jurisdiction  to   pass  the  same.      Moreover the stay order  was passed      by the High Court which is superior      Court of  Record, it  is for    the      court  to   consider  whether   any      matter     falls     within     its      jurisdiction or not. Unlike a court      of   limited    jurisdiction,   the      superior  court   in  entitled   to      determine  for   itself   questions      about its  own jurisdiction.  (See:      Special  Reference  No.1  of  1964;      (1967) 3 SCR 84.)"      The Allahabad  and Madras  High Courts  have also taken the same  view. In  State of  U.P. V. Ratan Shukla [AIR 1956 All. 258], the Allahabad High Court observed:      "The fact  that Shri  S.M.  Ifrahim      had no  jurisdiction  to  hear  the      appeals,  however,  does  not  mean      that no contempt could be committed      of him. So long as he was seized of      the appeals,  no contempt  could be      committed of him.      It is  not the  law  that  a  court      dealing  with  a  matter  which  is      beyond  its   jurisdiction  can  be      contemned with impunity or that the      liability  of   a  person   to   be      punished for  contempt of  a  court      depends upon  whether the court was      acting within  its jurisdiction  at      the time when it is alleged to have      been  contemned.     the  opposite-      party, therefore, cannot claim that      he  is   not  guilty   of  contempt      because Shri  S.M. Ifrahim  had  no      jurisdiction    to    decide    the      appeals."      In Nalla  Senapati Sarkarai  Mandariar Pallayakottai v. Shri Ambal  Mills Pvt. Ltd. & Ors. [AIR 1966 Mad.53] similar view has  been expressed  - without  of course  deciding the question finally.  Quoting Oswald  on Contempt (1910 Edn. at 106), the  court observed  "an  order  irregularly  obtained cannot be  treated as  a nullity,  but  must  be  implicitly obeyed, until by a proper application, it is discharged."      In D.M.  Samyulla v.  Commissioner, Corporation  of the City of  Bangalore &  Ors. [1991 Karnataka Law Journey 352], the Karnataka  High Court  stated the  law in  the following terms, with reference to the decision of the Court of Appeal in Hadkinson  v. Hadkinson:  "the principle laid down in the said decision  is, a party who knows an order, whether it is null or  valid, regular or irregular, cannot be permitted to disobey it  and it  would be dangerous to allow the party to decide as  to whether  an order was null or valid or whether it was regular or irregular".      In Hadkinson v. Hadkinson [1952 All. E.R.567] the Court of Appeal held:      "It is  the plain  and  unqualified      obligation of every person against,      or in  respect of  whom an order is      made  by   a  court   of  competent

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    jurisdiction to  obey it unless and      until that order is discharged. The      uncompromising   nature   of   this      obligation is  shown  by  the  fact      that it extends even to cases where      the person  affected  by  an  order      believes it to be irregular or even      void. Lord  Cottenham, L.C. said in      Chuck v. Cremer: (1) (1 Coop. Temp.      Cott.342).      ‘A party,  who knows  of an  order,      whether null  or valid,  regular or      irregular, cannot  be permitted  to      disobey  it....It   would  be  most      dangerous to hold that the suitors,      or    their    solicitors,    could      themselves judge  whether an  order      was null  or valid-whether  it  was      regular  or  irregular.  that  they      should come  to the  court and  not      take upon  themselves to  determine      such a question. That the course of      a party  knowing of an order, which      was  null  or  irregular,  and  who      might be affected by it, was plain.      He should  apply to  the court that      it might  be discharged. As long as      it   existed   it   must   not   be      disobeyed.’      Such  being   the  nature  of  this      obligation, two  consequences  will      in general  follow from its breach.      The  first   is  that   anyone  who      disobeys an order of the court (and      I   am    not    now    considering      disobedience  of   orders  relating      merely to  matters of procedure) is      in contempt  and may be punished by      committal    or    attachment    or      otherwise. The  second is  that  no      application to  the court by such a      person will be entertained until he      has   purged    himself   of    his      contempt."      In United  States of  America v. John F.Shipp et al [51 L.Ed. 319], the following statement by Holmes,J. occurs:      "It has been held, it is true, that      orders made  by a  court having  no      jurisdiction to  make them  may  be      disregarded  without  liability  to      process for  contempt:  Re  Sawyer,      124 U.S.  200, 31 L. ed.402, 8 Sup.      Ct. Rep.482;  Ex  Parte  Fisk.  113      U.S. 713, 28 L.ed. 1117, 5 Sup. Ct.      Rep. 724;  Ex  parte  Rowland,  104      U.S. 604,  26 L.  ed. 861. But even      if  the   circuit  court   had   no      jurisdiction to entertain Johnson’s      petition , and if this court had no      jurisdiction of  the appeal,  court      and this  court alone, could decide      that such  was the  law. It  and it      alone necessarily  had jurisdiction      to  decide  whether  the  case  was      properly   before   it.   On   that

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    question, atleast,  it was its duty      to permit  argument and to take the      time     required      for     such      consideration as it might need. See      Mansfield, C. & L.M.R. Co. v. Swan,      111 U.S.379,  387, 278  L. ed. 462,      465, 4 Sup. Ct. Rep. 510. Until its      judgment   declining   jurisdiction      should   be   announced,   it   had      authority, from  the  necessity  of      the case to make orders to preserve      the  existing  conditions  and  the      subject of  the petition,  just  as      the  State   court  was   bound  to      refrain  from  further  proceedings      until the  same time.  Rev. Stat. 8      766; act  of March  3;  1893  chap.      226, 27 Stat. at L. 751, u.s. Comp.      Stat. 1901. p.597."      The decision  in Shipp  has been  followed  in  several later decision of the American Supreme Court.      A contrary  opinion has, however, been expressed in two decision of  the Bombay High Court. The first decision is of a learned  Single  Judge  in  Dwarkadas  Mulji  v.  Shadilal Laxmidas (1980  MLJ 404).  It was  held by the learned Judge that where  the court  has no jurisdiction to try a suit, no person can  be punished for flouting the interim orders made in such a suit. It is significant that no reference was made to Section  9-A of  the Civil  Procedure Code  in  the  said decision. In  support of  his view, the learned Judge relied upon certain  United States’  decisions and the statement of law  in  Corpus  Juris  Secondum,  Vol.XVII,  Para  19.  Sri Sorabjee says that the United States’ decisions cited do not support the  proposition of  the learned  Judge. We  do not, however, wish  to go  into the  said controversy  in view of Section 9-A  of the  Civil Procedure  Code and  the  correct principle of  law, as  we understand  it. The above decision has been  distinguished by  another learned  Single Judge in Kapil v.  S.Anthony [1984  (2)  Bombay  Case  Reporter  199] precisely on this ground, viz., with reference to Section 9-A Civil  Procedure Code. The learned Judge has opined that by virtue  of  Section  9-A,  the  court  does  possess  the jurisdiction to  pass interim  orders and  they have  to  be obeyed by the person concerned even though ultimately it may be found that the court had no jurisdiction to entertain the said suit.  The other  decision of  the Bombay  High  Court, which is  also strongly  relied  upon  in  the  order  under appeal, is  of the  Division  Bench  in  Vivekanand  Atmaram Chitale and  another v. Vidyavardhini Sabha and others [1984 MLJ 520].  That was a case where the Revenue Tribunal had no jurisdiction  to   pass  any  interim  order  in  an  appeal preferred under  Section 71  of the Bombay Public Trust Act, 1950.  The   Tribunal,  however,  passed  an  interim  order restraining the  holding of  a meeting. The persons, against whom  the  order  was  issued,  knowingly  and  deliberately disobeyed the  order stating that the order against them was without  jurisdiction.   They  were  proceeded  against  for contempt. The  Division Bench affirmed the general principle with reference  to this  Court’s decision  in Kiran Singh v. Chaman Paswan [A.I.R. 1954 S.C. 340] that a decree passed by a court  without jurisdiction  is a  nullity  and  that  its invalidity can  be set up whenever and wherever it is sought to be enforced or relied upon-even at the stage of execution and even  in collateral  proceedings and  then relaying upon the decision  of the  learned Single  Judge in  Dwarka  Dass

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Mulji v,. Shadilal Laxmidas, the Bench held thus:      "In Dwarkadas  Mulji and  others v.      Shantilal  Laxmidas   and   another      Sawant  J.  elaborately  considered      the question  whether the breach of      an undertaking  given by a party in      a proceeding,  which is  ab  initio      void  for   lack  of  jurisdiction,      amounts    to    contempt.    While      answering  the   question  in   the      negative, the learned Judge rightly      distinguished the  decision of  the      Allahabad High  Court in  State  of      U.P. v.  Ratan Shukla  [A.I.R. 1956      All. 258]  and placed reliance upon      the decision  of  the  Punjab  High      Court  in   Narayan  Singh   v.  S.      Hardayal   Singh    [A.I.R.    1958      Punj.180]. He  also quoted American      law on  the  subject  as  found  in      Corpus  Juris  Secondum  Vol.  XVII      para 19.  The relevant quotation is      as follows:-      "Disobedience of, or resistance to,      a void  mandate, order, judgment or      decree or  one issued  by  a  Court      without jurisdiction of the subject      matter and  parties litigant, is no      contempt and where the Court has no      waiver can  cut off  the rights  of      the party to attack its validity."      In  support   of  the  proposition,      which the  learned Judge  laid down      he  also  placed  reliance  on  the      decisions of  the Supreme  Court of      the  United   States  in  Ex  Parte      Rowland [1881  U.S.S.C.R. 26  L Ed.      604],   Ex    Parte   Fisk    [1884      U.S.S.C.R. 28  L Ed. 117], Ex Parte      Sawyer [1887  U.S.S.C.R. 32  L  Ed.      2001], United  States of America v.      United  Mine   Workers  of  America      [1946 U.S.S.C.R.  91 L  Ed.884] and      Joseph F.  Maggio v.  Raymond Zeitz      [1947 U.S.S.C.R.  92 L  Ed.476], in      which unanimous view was taken that      there is no contempt when breach is      of  the   order   passed   in   the      proceedings, which  are  ab  initio      void for  lack of jurisdiction from      their very inception."      It is necessary to point out that the order violated in Vivekanand Atmaram  was an order of the Revenue Tribunal and not of  a civil  court. Probably, for that reason, the Bench has not referred to Section 9-A of the Civil Procedure Code. Be that  as it may, for the reasons given by us hereinbefore and in  the light  of the  law laid down in the decisions of this Court  referred to  above, it  must be  held  that  the decision of  the Bombay  High Court  in Dwarkadas  Mulji was wrongly decided  and that the decision in Vivekanand Atmaram Chitale must  be held to be in applicable to the orders of a civil court.      The  learned   counsel  for  the  Defendants  1  and  2 submitted that  this is  not a proceeding for contempt but a proceeding under Rule 2-A of Order 39 of the Civil Procedure

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Code. Learned counsel submitted that proceedings under Order 39 Rule  2-A are  a part  of the  coercive process to secure obedience to  its injunction  and that once it is found that the  Court   has  no   jurisdiction,  question  of  securing obedience to its orders  any further does not arise. Learned counsel also  submitted that  enforcing  the  interim  order after it  is found that the Court had no jurisdiction to try the said suit would not only be unjust and illegal but would also reflect adversely upon the dignity and authority of the Court.  It   is  also   suggested  that  the  plaintiff  had instituted the  present suit in the Civil Court knowing full well that  it had  no jurisdiction  to try  it .  It is  not possible to  agree with  any of these submission not only on principle but  also in  the light  of the specific provision contained  in   Section  9-A  of  Code  of  Civil  Procedure (Maharashtra Amendment). In the light of the said provision, it would  not be  right to  say that  the Civil Court had no jurisdiction to pass interim order or interim injunction, as the case  may be,  pending decision  on  the    question  of jurisdiction. The  orders made  were within the jurisdiction of the Court and once this is so, they have to be obeyed and implemented. It is not as if the defendants are being sought to be  punished for  violations committed after the decision of the  High Court  on the  question of  jurisdiction of the Civil Court.  Here the  defendants are sought to be punished for  the  disobedience  and    violation  of  the  order  of injunction committed  before the  decision of the High Court in Vishanji  Virji Mepani.  According to  Section  9-A,  the Civil Court- and the High Court - did have the power to pass interim orders  until that  decision. If they had that power they must  also have the power to enforce them. In the light of the  said provision,  it cannot  also be  held that those orders could be enforced only till the said decision but not thereafter. The  said decision  does not  render  them  (the interim orders  passed meanwhile)  either non-est or without jurisdiction. Punishing  the defendants for violation of the said order  committed before  the  said  decision  (Vishanji Virji Mepani)  does not  amount, in  any event, to enforcing them after  the said  decision. Only  the orders  are  being passed now.  The violations  are those  committed before the said decision.      The correct principle, therefore, is the one recognised and reiterated  in Section  9-A - to wit, where an objection to jurisdiction  of a  civil court  is raised to entertain a suit and  to pass  any interim  orders  therein,  the  Court should decide  the question  of jurisdiction  in  the  first instance but that does not mean that pending the decision on the question  of jurisdiction, the Court has no jurisdiction to pass interim orders as may be called for in the facts and circumstances of  the case. A mere objection to jurisdiction does not  instantly  disable  the  court  from  passing  any interim orders.  It can  yet pass appropriate orders. At the same  time,   it  should   also  decide   the  question   of jurisdiction at  the earliest  possible  time.  the  interim orders so  passed are orders within jurisdiction when passed and  effective  till  the  court  decides  that  it  has  no jurisdiction to  entertain the  suit. These  interim  orders undoubtedly come to an end with the decision that this Court had no jurisdiction. It is open to the court to modify these orders while  holding that it has no jurisdiction to try the suit. Indeed,  in certain situation, it would be its duty to modify such  orders  or  make  appropriate  directions.  For example, take  a case,  where a  party has been dispossessed from  the   suit  property   by  appointing  a  receiver  or otherwise; in  such a  case, the court should, while holding

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that it  has no jurisdiction to entertain the suit, must put back the  party in  the position he was on the date of suit. But this  power or  obligation has  nothing to  do with  the proposition that  while in  foce, these  orders have  to  be obeyed and  their violation  can be  punished even after the question of  jurisdiction is  decided against  the plaintiff provided the  violation is  committed before the decision of the court on the question of Jurisdiction.      The learned  counsel for Defendants 1 and 2 then argued that Defendants  1 and  2 are  not guilty  of disobeying and violating the  order of  injunction and  that they  did  not carry on  any  construction  activity  after  the  grant  of interim injunction  by the  Civil Court.  The judgment under appeal does  not refer to any such contention being advanced by Defendants  1 and  2 before  the High Court. the impugned judgment under  appeal deals  only with the question of law. It is true that this factual submission was urged before the Civil  Court.  the  contention  was  that  the  construction complained of  was not  carried on by Defendants 1 and 2 but by other defendants and in particular by defendant No.4. The Civil Court  has dealt  with this  plea elaborately  and has rejected it  . The  Civil Court  has observed  that the  4th defendant has  come forward  gratuitously to  take the blame upon himself,  with a  view to save the second defendant and that his  plea is totally unacceptable. Moreover, the orders of the   High Court, referred to above, which are based upon the reports  of the  Court Receiver,  Police  and  Municipal records do  clearly show  that it  was the  second defendant who, acting  on behalf  of the  first defendant, had carried out the  construction complained  of and had even refused to purge himself  of the  contempt when given an opportunity to do so  in the  High Court. In the face of the consistent and repeated findings  of the  Civil Court  and the  High Court- which we  have referred  to in  extenso hereinabove - and in the absence  of any  indication from  the impugned  judgment that this  factual question  was urged by Defendants 1 and 2 before it - we are not inclined to accede to their plea that the matter should be remitted to the High Court for deciding the factual  issue viz.,  whether Defendant  1 and 2 have in fact violated  the  other  of  injunction  or  not.  In  our opinion, it would be an unnecessary and empty formality.      Accordingly, we  allow the  appeals and  set aside  the judgment of  the  High  Court  dated  November  1,  1996  in A.O.No.1407 of 1991.      It is brought to our notice that respondents 4 and 5 in these appeals (Ashok Temkar and Kiran Patil) also claimed to be tenants  of certain portions in the said building.  Their claims  have  not  been  investigated  by  the  High  Court, probably in view of the finding on the aforesaid question of law. the  matters shall  go back  to the  High Court  to the extent of the said respondents (i.e. other than Defendants 1 and 2)  to determine  whether any or both of them are guilty of violating the injunction order.      Insofar as  Defendant No.  2 (Sri K.S. Jhunjhunwala) is concerned, the  order of  the Civil Court holding him guilty of contempt  and sentencing  him to one month’s imprisonment is affirmed.      The appeals are allowed in the above terms. No costs.