Criminal Appeal No. 1798 of 2009 · Delhi High Court

statement of the parties to the suit at the "first hearing of A the suit" which comes after the framing of the issues and then the suit is posted for trial, i.e. for production of evidence. Such an interpretation emerges from the conjoint reading of the provisions of Order X, Rule 1, Order XIV, Rule 1(5), and Order XV, Rule 1, CPC. The 8 cumulative effect of the above referred provisions of CPC comes to that the "first hearing of the suit" can never be earlier than the date fixed for the preliminary examination of the parties and the settlement of issues. On the date of appearance of the defendant, the court does not take up the case for hearing or apply its mind to the facts of C the case, and it is only after filing of the written statement and framing of issues, the hearing of the case commences. The hearing presupposes the existence of an occasion which enables the. parties to be heard by the Court in respect of the cause. Hearing, therefore, should D be first in point of time after the issues have been framed. The date of "first hearing of a suit" under CPC is ordinarily understood to be the date on which the Court proposes to apply its mind to the contentions raised by the parties in their respective pleadings and also to the documents E filed by them for the purpose of framing the issues which are to be decided in the suit. Thus, the question of having the "first hearing of the suit" prior to determining the points in controversy between the parties i.e. framing of issues does not arise. The words the "first day of F hearing" does not mean the day for the return of the summons or the returnable date, but the day on which the court applies its mind to the case which ordinarily would be at the time when either the issues are determined or evidence is taken. [Para 6] (989-E-H; 990- A-B] G

2.2. From the fact situation, it is evident that the suit was filed by 'MY' on 26.4.2003 and In response to the notice issued in that case, the appellant/defendant appeared on 29.4.2003 in person and filed his written H 976 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R A statement. It was on the same day that his statement had been recorded by the court. This Court fails to understand as to what statutory provision enabled the civil court to record the statement of the appellant/ defendant on the date of filing the written statement. [Paras 7) [990-D-E] 8 Ved Prakash Wadhwa v. Vishwa Mohan AIR 1982 SC 816; Sham Lal (dead) by Lrs. v. Atma Nand Jain Sabha (Regd.) Dal Bazar AIR 1987 SC 197; Siraj Ahmad Siddiqui v. Shri Prem Nath Kapoor AIR 1993 SC 2525 and Mis c Mangat Singh Tri/ochan Singh thr. Mangat Singh (dead) by Lrs. & Ors. v. Satpal AIR 2003 SC 4300 - relied on. Whether the application under Order XXXIX Rule 2A CPC or under the 1971 Act could be entertained by the Civil Court and whether the matter could be referred to the · D High Court at all.

3.

Application under Order XXXIX Rule 2A CPC lies only where disobedience/breach of an injunction granted or order complained of was one, that is granted by the court under Order XXXIX Rules 1 & 2 CPC, which is E naturally to enure during the pendency of the suit. However, once a suit is decreed, the interim order, if any, merges into the final order. No litigant can derive any benefit from mere pendency of case in a Court of Law, as the interim order always merges in the final order to F be passed in the case and if the case is ultimately interim order stands nullified dismissed, automatically. [Para 9) [992-H; 993-A-B]

3.

In case there is a grievance of non-compliance of the terms of the decree passed in the civil suit, the G remedy available to the aggrieved person is to approach the execution cdurtl under Order XXI Rule 32 CPC which provides for elaborate proceedings in which the parties can adduce their evidence and can examine and cross examine the witnesses as opposed to the proceedings In contempt which are summary in nature. Application H KANWAR SINGH SAINI v. HIGH COURT OF DELHI 977 under Order XX.XIX Rule 2A CPC is not maintainable once A the suit stood decreed. Law does not permit to skip the remedies available under Order XXI Rule 32 CPC and resort to the contempt proceedings for the reason that the court has to exercise its discretion under the 1.971 Act when an effective and alternative remedy is not available B to the person concerned. Thus, when the matter relates to the infringement of a decree or decretal order embodies rights, as between the parties, it is not expedient to invoke and exercise contempt jurisdiction, in essence, as a mode of executing the decree or merely C because other remedies may take time or are more circumlocutory in character. Thus, the violation of permanent injunction can be set right in executing the proceedings and not the contempt proceedings. There is a complete fallacy in the argument that the provisions of Order XXXIX Rule 2A CPC would also include the case D of violation or breach of permanent injunction granted at the time of passing of the decree. [Para 10] [993-D-H; 994· A]

3.

The power exercised by a court under Order XXXIX Rule 2A is punitive in nature, akin to the power to E punish for civil contempt under the 1971 Act. Therefore, such powers should be exercised with great caution and responsibility. Unless there has been an order under Order XX.XIX Rule 1 or 2 CPC in a case, the question of entertaining an application under Order XXXIX Rule 2A F does not arise. In case there is a final order, the remedy lies in execution and not in an action for contempt or disobedience or breach under Order XX.XIX Rule 2A. The contempt jurisdiction cannot be used for enforcement of decree passed in a civil suit. [Para 11] [994-B-C] G

3.

The proceedings under Order XXXIX Rule 2A are available only during the pendency of the suit and not after conclusion of the trial of the suit. Therefore, any undertaking given to the court during the pendency of the · suit on the basis of which the suit itself has been H 978 SUPREME COURT REPORTS (2011] 15 (ADDL.) S.C.R. A disposed of becomes a part of the decree and breach of such undertaking is to be dealt with in execution proceedings under Order XXI Rule 32 CPC and not by means of contempt proceedings. Even otherwise, it is not desirable for the High Court to initiate criminal contempt 8 proceedings for disobedience of the order of the injunction passed by the subordinate court, for the reason that where a decree is for an injunction, and the party against whom it has been passed has wilfully disobeyed it, the same may be executed by attachment of his property or by detention in civil prison or both. The C provision of Order XXI Rule 32 CPC applies to prohibitory as well as mandatory injunctions. In other words, it applies to cases where the party is directed to do some act and also to the cases where he is abstained from doing an act. Still to put it differently, a person disobeys D an order of injunction not only when he fails to perform an act which he is directed to do but also when he does an act which he is prohibited from doing. Execution of an injunction decree is to be made in pursuance of the Order XXI Rule 32 CPC as the CPC provides a particular E manner and mode of execution and therefore, no other mode is permissible. [Para 12] [994-D-H; 995-A]

3.

Conferment of jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a superior court, and if the court passes F order/decree having no jurisdiction over the matter, it would amount to a nullity as the matter goes to the roots of the cause. Such an issue can be raised at any belated stage of the proceedings including in appeal or execution. The finding of a court or tribunal becomes irrelevant and unenforceable/inexecutable once the forum is found to have no jurisdiction. Acquiescence of a party equally should not be permitted to defeat the legislative animation. The court cannot derive jurisdiction apart from the statute. [Para· 13] [995-B-D] G H

3.

When a statute gives a right and provides a KANWAR SINGH SAINI v. HIGH COURT OF DELHI 979 • forum for adjudication of rights, remedy has to be sought A only under the provisions of that Act. When an Act creates a right or obligation and enforces the performance thereof in a specified manner, "that performance cannot be enforced in any other manner". Thus for enforcement of a right/obligation under a statute, the only remedy 8 available to the person aggrieved is to get adjudication of rights under the said Act. [Para 13] [995-G-H; 996-A]

3.

The proceedings under Order XXXIX, Rule 2A CPC is a mode to compel the opposite party to obey the order of injunction by attaching the property and c detaining the disobedient party in civil prison as a mode of punishment for being guilty of such disobedience. Breach of undertaking given to the court amounts to contempt in the same way as a breach of injunction and is liable to be awarded the same punishment for it. [Para 14] [996-0] 0

3.

It is a settled legal proposition that the executing court does not have the power to go behind the decree. Thus, in absence of any challenge to the decree, no objection can be raised in execution.- [Para 15) [986-E-F] E

3.

In the case at hand, the decree dated 12.5.2003 was passed by the civil court on the basis of admission/ undertaking made by the appellant and the pleadings taken by him in his written statement. Therefore, in a case where there was any disobedience of the said judgment F and decree, the application under Order XXXIX Rule 2A CPC should not have been entertained. Such an application is maintainable in a case where there is violation of interim injunction passed during the pendency of the suit. In the instant case, no interim order G had ever been passed. Thus, the appropriate remedy available to the decree holder-'MY' had been to file application for execution under Order XXI Rule 32 CPC. The procedure in execution of an injunction decree is same as prescribed under Order XXXIX Rule 2A i.e. attachment of property and detention of the disobedient H 980 SUPREME COURT REPORTS [2011] 15 (AODL.) S.C.R. A to get the execution of the order. In view thereof, all subsequent proceedings were unwarranted. [Para 16) [996-G-H; 997-A-B]

3.

The application of the decree holder had been for violation of the undertaking which at the most could B be civil contempt as defined under Section 2(b) of the Act 1971 as it includes the wilful breach of an undertaking given to a court. Therefore, the Trial Court failed to make a distinction between civil contempt and criminal contempt. A mere disobedience by a party to a civil action c of a specific order made by the. court in the suit is civil contempt for the reason that it is· for the sole benefit of the other party to the civil suit. Thi!; case remains to the extent that, in such a fact situation, the administration of justice could be undermined if the order of a competent court of law is permitted to be disregarded with such impunity, but it does not involve sufficient public interest to the extent that it may be treated as a criminal contempt. It was a clear cut case involving private rights of the parties for which adequate and sufficient remedy had been provided under CPC itself, like attachment of the E property and detention in civil prison, but it was not a case wherein the facts and circumstances warranted the reference to the High Court for initiating the proceedings for criminal contempt. [Para 17] [997-C-F] 0

3.

The High Court failed to appreciate the nature/ F status of proceedings in which the alleged false affidavit had been filed. In the instant case, proceedings under Order XXXIX Rule 2A CPC were not maintainable at all. Had the complainant 'MY' filed the execution proceedings under Order XXI Rule 32 CPC, the court could have G proceeded in accotdance with law without going into the averments raised therein by the appellant. [Para 18) [997- H; 998-A·B]

3.

In an appropriate case where exceptional circumstances exist, the court may also resort to the H provisions applicable in case of civil contempt, in case KANWAR SINGH SAINI v. HIGH COURT OF DELHI 981 of violation/breach of undertaking/judgment/order or A decree. However, before passing any final order on such application, the court must satisfy itself that there is violation of such judgment, decree, direction or order and such disobedience is wilful and intentional. Though in a case of execution of a decree, the executing court may B not be bothered whether the disobedience of the decree is wilful or not and the court is bound to execute a decree whatever may be the consequence thereof. In a contempt proceeding, the alleged contemnor may satisfy the court that disobedience has been under some compelling circumstances, and in that situation, no punishment can C be awarded to him. Thus, for violation of a judgment or decree provisions of the criminal contempt are not attracted. [Para 19] [998-D-H]

3.

The appellant had been subjected to unfair 0 procedure from the institution of the suit itself. The suit had been "disposed of' in great haste without following the procedure prescribed in CPC. Once the suit has been decreed, the court could not entertain the application under Order XXXIX Rule 2A CPC as the suit had already been decreed and such an application is maintainable E only during the pendency of the suit in case the interim order passed by the court or undertaking given by the party is violated. In the instant case, no interim order had ever been passed and the undertaking given by the appellant/defendant not to dispossess the plaintiff 'MY' F culminated into a final decree and thus, if any further action was required, it could be taken only in execution proceedings. There has been manifest injustice in the case and the doctrine of ex debito justitiae has to be applied in order to redress the grievances of the G appellant/defendant. The judgment and order impugned cannot be sustained under any circumstance. [Para 21] [1000-D-G]

3.

The courts below proceeded with criminal contempt proceedings not for disobeying any judgment H 982 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R. A or order but for taking inconsistent pleas in the reply filed by the appellant to the application under Order XXXIX Rule 2A CPC, accepting it to be a false affidavit. Purposes of initiation of contempt proceedings are two-fold: to ensure the compliance of the order passed by the court; B and to punish the contemnor as he h~ the audacity to challenge the majesty of law. In the instant case, admittedly, the grievance of the complaint had been disobedience of decree/order of the civil court dated 12.5.2003. The High Court convicted the appellant and C sent him to jail but did not grant any relief so far as the enforcement of the order dated 12.5.2003 is concerned. On fails to understand as under what circumstances, the High Court did not even consider it appropriate to enforce the judgment/order/decree if it had been disobeyed by the appellant. The instant case is a glaring D example of non-application of mind and non-observance of procedure prescribed by law for dealing with such matters. Entire proceedings have been conducted in most casual and cavalier manner. The contempt proceedings being quasi-criminal in nature, the standard E of proof requires in the same manner as in other criminal cases. The alleged contemnor is entitled to the protection of all safeguards/rights which are provided in the Criminal Jurisprudence, including the benefit of doubt. There must be a clear-cut case of obstruction of administration of F justice by a party intentionally to bring the matter within the ambit of the said provision. The case should not rest only on surmises and conjectures. [Paras 22, 25] [1000· H; 1001-A-D; 1002-F-G]

3.

As the application under Order XXXIX Rule 2A G CPC itself was not maintainable all subsequent proceedings remained inconsequential. Legal maxim "sublato fundamento cadit opus" which means foundation being removed structure falls is attracted. [Para 26] [1003-D] H Dhananjay Shar!pa v. State of Haryana & Ors. (1995) 3 KANWAR SINGH SAINI v. HIGH COURT OF DELHI 983