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Vittal Gurudas Pai (Since Deceased) by L.Rs. & Another v/s M/s. Lepakshi Construction Corporation (Partnership FIRM), Bengaluru & Others

    MFA. No. 7055 of 2013

    Decided On, 23 February 2021

    At, High Court of Karnataka

    By, THE HONOURABLE MRS. JUSTICE K.S. MUDAGAL

    For the Appellants: H.S. Pradeep, M.N. Raghu, Advocates. For the Respondents: M.N. Satyaraj, Advocate.



Judgment Text

1. Aggrieved by the order of the trial Court dismissing their application against the defendants under Order XXXIX Rule 2A of CPC, the plaintiffs have preferred the above appeal.

2. The appellants were the plaintiffs and the respondents were the defendants in O.S.No.4191/2007 before the trial Court. For the purpose of convenience, the parties will be referred to henceforth with their ranks before the trial Court. Brief facts of the case:

3. Plaintiffs filed O.S.No.4191/2007 against the defendants before the VIII Additional City Civil & Sessions Judge, Bengaluru for declaration that the registered memorandum of understanding dated 30.04.2004 entered into between them and the defendants for joint development of the suit schedule property and the registered power of attorney dated 30.04.2004 relating to the suit schedule property are revoked, rescinded and terminated and that the defendants have no right to act and represent the plaintiffs in respect of the same. They also sought direction to the defendants to deliver the original title deeds of the schedule property, permanent injunction against interference in their possession and enjoyment and against alienation of the suit schedule property.

4. Along with the suit, the plaintiffs filed I.A.Nos.1 and 2 seeking injunction to restrain the defendants from alienating and changing the nature of the suit schedule property. The trial Court issued emergent notice of I.A.Nos.1 and 2 and suit summons to the defendants.

5. Defendants appeared through their Counsel. On two hearing dates their Counsel undertook that the defendants will not alienate the suit schedule property and the Court recorded the same. On 17.11.2007, the defendants Counsel failed to appear and Court granted temporary injunction against alienation of the property and that was extended from time to time.

6. On 10.12.2007, the plaintiffs filed I.A.No.3 before the trial Court under Order XXXIX Rule 2A read with Section 151 of CPC to take action against the defendants for disobedience of the order of injunction dated 17.11.2007 and to detain defendant Nos.2 and 3 in the civil prison for violation of their undertaking.

7. In support of I.A.No.3, plaintiff No.1 filed affidavit alleging that violating their own undertaking and the order of the Court restraining them from alienating the suit schedule property, the defendants have sold portions of the suit schedule property under registered sale deeds dated 10.07.2007 and 19.11.2007, thereby the defendants are guilty of willful disobedience of the order of the Court and liable to be punished.

8. The defendants did not file any objections to the said application. For the purpose of enquiry, the trial Court registered I.A.No.3 in separate proceedings and numbered that as Misc.No.38/2011 and conducted the enquiry.

9. On behalf of the applicants, plaintiff No.1 was examined as PW.1 and Exs.P1 to P13 were marked. Defendant No.3 was examined as DW.1 and on their behalf Exs.D1 to D8 were marked.

10. The trial Court on hearing the parties by the impugned order rejected the application on the following grounds:

(i) The defendants did not subscribe their signatures to the memo of undertaking dated 11.07.2007 and 13.08.2007, therefore, the knowledge of undertaking cannot be imputed to them;

(ii) The order dated 17.11.2007 was an exparte temporary injunction order;

(iii) The plaintiffs had not complied the requirement of the notification of the order to the defendants. Therefore, the knowledge of the temporary injunction order dated 17.11.2007 cannot be imputed to the defendants;

(iv) The photographs produced by the plaintiffs show that there was no construction in the suit schedule property;

(v) The defendants have sold the flats assigned to their share under the joint development agreement;

(vi) The description of the suit schedule property was incomplete.

(vii) For such reasons the benefit of doubt shall be given to the defendants. In holding so, the trial Court relied on the following judgments;

(i) M.B.Nanaiah vs. K.Nagaraju and others [AIR 1995 KNT 389]

(ii) Kanwar Singh Saini vs. High Court of Delhi [Crl.Appeal NO.1798/2009]

(iii) Food Corporation of India vs. Sikha Deo .K. [AIR 2009 SC 2330]

Arguments of the parties:

11. Reiterating the grounds of the appeal, Sri Pradeep H.S. learned Counsel for the plaintiffs seeks to assail the impugned order of the trial Court on the following grounds:

(i) Since the defendants did not challenge the authority of their Counsel to file the memo of undertaking and question his action in an appropriate manner, the trial Court was not justified in holding that filing of undertaking was not within the knowledge of the defendants;

(ii) The defendants not at all disputed the description of the suit schedule property and they did not even file statement of objections to deny the knowledge of that order or undertaking;

(iii) The flats sold were comprised in the suit schedule properties. Since the injunction order was in respect of the entire suit schedule property, the trial Court was in error in holding that the defendants have sold the flats assigned to their share;

(iv) The defendants have admittedly sold the properties under Exs.P1 to P5, Exs.P7 to P13 right from 10.07.2007 till 15.06.2009, even after filing of the application under Order XXXIX Rule 2(c) of CPC which is nothing but brazen violation of the order of the Court;

(v) The trial Court unjustifiably applied the judgments of this Court and the Honble Supreme Court though they were not applicable to the facts of the case; &

(vi) Once the matter is entrusted to an Advocate, the acts done by the Advocate as an agent of the defendants binds the defendants and they cannot try to escape from criminal liability just saying that the memo filed by the advocate was not within their knowledge.

12. In support of his contentions, he relies upon the following judgments:

(i) M/s.Jain Exports Pvt. Ltd. v. Union of India (AIR 1996 SC 2739)

(ii) Jagtar Singh vs. Pargat Singh ((1996) 11 SCC 586)

(iii) S.Gangadhar vs. R.Prakash (ILR 2008 KAR 2392)

(iv) Chhaganbhai Norsinbhai vs. Soni Chandubhai Gordhanbhai and others ((1976) 2 SCC 951)

(v) Anil Sharma vs. R.C. Virmani and another ((1996) Cri.LJ 3137)

(vi) Tayabbhai M. Bagasarwalla and another vs. Hind Rubber Industries Pvt. Ltd.. ((1997) 3 SCC 443)

(vii) Patel Rajnikant Dhulabhai and another vs. Patel Chandrakant Dhulabhai and others ((2008) AIR (SCW) 5076)

(viii) Samee Khan vs. Bindu Khan ((1998) 7 SCC 59)

(ix) Hanamawwa vs. B. Alla Baksh (2002 (2) Kar.L.J. 164)

(x) Noorali Babul Thanewala vs. K.M.M.Shetty (1990 (1) SCC 259 )

13. Defendant No.1 is a partnership firm represented by its partners defendant Nos.2 and 3. Defendant No.2 is the wife of defendant No.3. Defendant Nos.1 and 2 though served in this case remained unrepresented. Sri M.N.Satyaraj, learned counsel for defendant No.3 seeks to justify the impugned order on the following grounds:

(i) Clause 8 of Ex.D1 - the Joint Development Agreement contained a force measure clause. If there was any omission on the part of the developer, the plaintiffs were entitled to damages at the rate of Rs.5,000/- per month. Therefore, the suit itself was not maintainable.

(ii) The Trial Court has dismissed the main suit itself. Therefore, the act of sale does not amount to breach of injunction order;

(iii) As on the date of the suit itself several flats were constructed and sold. The plaintiffs suppressed the said material fact. Therefore, the application under Order XXXIX Rule 2A was not maintainable;

(iv) The description of the suit schedule property was incomplete. The Trial Court in its judgment has held that there was no violation of the temporary injunction order;

(v) In the memo filed by the learned counsel for the defendants, there was no undertaking regarding alienation. But only a statement was made to the effect that they have not alienated. Thus, there was no violation of any undertaking;

(vi) The law requires the disposal of temporary injunction application within 30 days, but the application for temporary injunction filed by the plaintiffs before the Trial Court was not disposed of till disposal of the suit. Therefore, if there was any interim injunction order, that was a nullity and consequently, Order XXXIX Rule 2A of CPC is not attracted;

(vii) Soon after filing the application under Order XXXIX Rule 2A of CPC, the Trial Court should have registered that as a miscellaneous case and notice of the application should have been served on the defendants. For such procedural irregularity, the whole proceedings under Order XXXIX Rule 2A were vitiated.

(viii) The order dated 17.11.2007 was not in accordance with Order XXXIX Rules 1 and 2 of CPC, as Order XXXIX Rule 3 of CPC was not complied.

14. In support of his contention, he relies upon the following judgments:

(i) Makkhan Singh vs. Shyam Singh Article 227 No. 8804/2019 DD 18.12.2019.

(ii) Pradeep Kumar Srivastava and 2 others vs. Vishal Singh and Chief Executive Officer and

2 others [Contempt Application (civil) No.1785/2020 DD 19.06.2020].

(iii) Kanwar Singh Saini vs. High Court of Delhi [Crl.A.No.1798/2009, Supreme Court DD 23.09.2011]

(iv) Kirti and another etc. vs. Oriental Insurance Company Ltd. ] [Civil Appeal Nos.90-20/2021 (arising out of Special leave Petition(C) Nos.18728-29/2018), Supreme Court, DD 05.01.2021].

(v) K.D.Sharma vs. Steel Authority of India Ltd. [Civil Appeal No.4270 of 2008) (arising out of Special Leave Petition (Civil) No.17005 of 2006), Supreme Court, DD 09.07.2008].

(vi) D.Nagaraju vs. H.D.Yogendra [ Writ Petition No.48658/2012 (GM-CPC), High Court of Karnataka, DD 03.04.2014.

(vii) Smt.B.Nandini & Ors. vs. Miss.Bhushanam and others [MFA Nos.6337/2005 C/W 6439/2005(CPC), High Court of Karnataka, DD 26.09.2008]

15. Having regard to the rival contentions, the following point arises for consideration:

“Whether the order of the Trial Court dismissing the application of the plaintiffs under Order XXXIX Rule 2A of CPC is sustainable in law?”

Reg. The maintainability of the application under Order XXXIX Rule 2A of CPC on dismissal of the main suit:

16. It was contended that on dismissal of the main suit, Order XXXIX Rule 2A of CPC application does not survive and not maintainable. To advance that proposition, learned Counsel for the defendants relied on the judgment of the Honble Supreme Court in Kanwar Singh Sainis case referred to supra. In that case, the plaintiff filed application under Order XXXIX Rule 2A of CPC to prosecute the defendants for disobedience of the decree of permanent injunction after the suit was decreed.

17. Under such circumstances, it was held that once the suit is decreed, the party cannot pursue the remedy under Order XXXIX Rule 2A of CPC, but he has to seek the enforcement of the order as per Order XXI Rule 32 of CPC. In this case, under the application under Order XXXIX Rule 2A of CPC, the plaintiffs did not seek the prosecution of the defendants for breach of the decree, but they sought to proceed against them for breach of interim order of temporary injunction. Therefore, the said judgment is not applicable.

18. The Hon'ble Supreme Court in para 11 of the judgment in Samee Khans case referred to supra held that, even if the injunction order is subsequently set aside, the disobedience does not get erased. It was further held that the position with regard to Order XXXIX Rule 2A of CPC is different. Therefore, subsequent dismissal of the suit by the trial Court does not absolve the defendants of their liability of breach of injunction order. Moreover, the order of the trial Court dismissing the suit has not attained finality and that is pending before this Court in RFA No.592/2017.

19. Learned Counsel for defendant No.3 contended that the trial Court in para 14 of its judgment has held that there was no violation of injunction order. No doubt in para 14 of the judgment, the trial Court has stated that the sale of the properties under Exs.P18 to P24 was not in contravention of the order passed by it.

20. The trial Court passed its judgment on 02.01.2017. While passing the said judgment, the trial Court was well aware that the correctness of its order rejecting the application under Order XXXIX Rule 2A of CPC is being tested in this appeal and matter is sub-judice. While disposing the suit, the trial Court was not called upon to decide whether there was violation of injunction order or not. By making some observations regarding merits of the matter which is pending before the High Court, the learned Presiding Officer of the trial Court has committed judicial impropriety and illegality. Such observations of the trial Court does not bind this Court in disposing of this matter.

Reg. Description of the property:

21. The trial Court rejected the application on the ground that as per the records as on the date, there was no construction on the suit schedule property, therefore the description of the property was not correct. Secondly, the trial Court held that the defendants sold their share of flats, therefore there was no violation of the injunction order.

22. The subject matter of the suit was the premises with all appurtenance bearing Site No.1, Khata No.15, Assessment No.15/1A, situated at Yellukunte, Begur Hobli, Bangalore South Taluk, Bangalore. Present No.1, Khatha No.15/1A, Yellukunte, C.M.C. Bommanahalli, Bangalore and now within the limits of Bruhat Bengaluru Mahanagara Palike, and the same measured East to West 120 and North to South 75 and the same being bounded on the East by Property of Jayarama Reddy, West by Road, North by Property No.2 and South by Private property.

23. According to the plaintiffs, even after injunction order the defendants sold the flats built on site No.1. The description of the property clearly shows that it was not just open site as site No.1, Khata No.15 etc. but, consisted of appurtenance to the said site. The defendants also did not dispute that under Exs.P3 to P5, Exs.P7 to P10, Ex.P12 and P13 starting from 19.11.2007 till 13.12.2011 they sold the flats constructed in the suit schedule property and during that period the injunction order was in force. Whether the flats sold consisted of defendants share or plaintiffs share, but clearly they were part of the suit schedule property.

24. The trial Court committed gross error in holding that the description of the property was incorrect. Similarly, the trial Court was wholly unjustified in holding that the application for violation of injunction was not maintainable as the flats sold formed part of the share of the defendants. Reg. Binding effect of the undertaking of the Counsel for the defendants:

25. The suit was filed on 04.06.2007. On 08.06.2007, the Court ordered emergent notice of IA Nos.1 and 2 and suit summons to the defendants. Admittedly, the suit summons and notice of the applications were served on the defendants and they appeared before the Trial Court on 11.07.2007. On 11.07.2007, the Counsel for the defendants filed memo which reads as follows: The undersigned counsel undertake that the defendants have not alienate the suit schedule property to any third person

26. Then the matter was adjourned to 13.08.2007. On 13.08.2007, the advocate for the defendants filed another memo which reads as follows: The undersigned counsel undertake that they have not alienate the suit schedule property in the above case.

27. Then the trial Court ordered to list the matter on 17.11.2007. On 17.11.2007, the defendants Counsel failed to appear before the Court. The plaintiffs Counsel submitted to the Court about the undertaking given by the defendants Counsel. Under such circumstances, the trial Court passed the following order:

“Parties to the suit called out. Absent. Learned Counsel for the plaintiff is present. Learned Counsel for the defendant is absent. On the last date the learned Counsel for the defendants had undertaken that the defendants will not alienate suit property. Today neither defendants nor learned Counsel for the defendants are present. I.A I & II cannot be heard as the defendants and learned Counsel for defendant Nos.1 to 3 are absent. Hence, it is hereby ordered that defendants 1 to 3 shall not alienate the suit property till next date. For hearing of IA I & II and to call the parties under Section 89 of CPC. Call on 08.12.2007.”

28. That order was extended from time to time. Subsequent to 17.11.2007, the defendants executed the sale deeds under Exs.P3 to P5, Ex.P7 to P13, the dates of which are as follows:

Ex.P3 19.11.2007 Ex.P4 03.12.2008 Ex.P5 01.07.2008 Ex.P7 15.06.2009 Ex.P8 06.08.2008 Ex.P9 13.12.2011 Ex.P10 19.11.2007 Ex.P11- 01.07.2008 Ex.P12 03.12.2008 Ex.P1315.06.2009

29. Under the aforesaid documents, the defendants sold several flats to the purchasers named therein. During the said period, the injunction order granted by the Trial Court was in force. There is no dispute about the said fact.

30. However, the maintainability of the application under Order XXXIX Rule 2A of CPC was questioned on other grounds. One amongst them is that the defendants had not instructed their Counsel to give such undertaking. The trial Court holds that the memos of undertaking filed by the advocate for the defendants were not signed by them, therefore, knowledge of undertaking cannot be imputed to them.

31. The Larger Bench of the Hon'ble Supreme Court in Chhaganbhai Norsinbhais case referred to supra in para 5 of the judgment referring to Halsbury's Laws of England- Fourth Edn. vo1. 9, page 42 (paragraph 71) after citing Dashyoodd v. Dashood held as follows:

“An undertaking given to the Court by a person or corporation in pending proceedings, on the faith of which the court sanctions particular course of action or inaction, has the same force as an injunction made by the Court and a breach of the undertaking is misconduct amounting to contempt.”

(Emphasis supplied)

32. Similarly in Noorali Babul Thanewalas case referred to supra the Hon'ble Supreme Court held that undertaking given by the party to the Court amounts in substance to an injunction restraining that party from acting in breach thereof.

33. In paras 8 and 9 of the judgment in M/s.Jain Exports Pvt. Ltd.s case referred to supra the Hon'ble Supreme Court held that undertaking given by the party to the Court is not an obligation imposed by the Court but it is promise voluntarily made to the Court and that binds him/her.

34. In Hanamawwas case referred to supra the matter was compromised by the advocate without instructions from his client. Therefore, it was held that the advocate making any concession effecting legal right of the client is not binding the client. In the case on hand, no such compromise was entered into or concession against law was made by the undertaking. Therefore, the said judgment was not applicable.

35. Since 2007 till date the defendants have not taken any action against their advocate alleging that the advocate gave such undertaking without their instructions or there was any professional misconduct on the part of the said advocate.

36. In Jagtar Singhs case referred to supra where similar allegations were made against the advocate, the Hon'ble Supreme Court held that Order III Rule 4 of CPC empowers the Counsel to continue on record until the proceedings in the suit are duly terminated, therefore the Counsel has power to make the statement on instructions from the party to withdraw the appeal. In para 4 of the judgment, it was held that if really the Counsel acted hostile to the interest of the party or against his instructions, the necessary remedy of the party is elsewhere and no fault can be found with the Court acting in consonance with the submission of such Counsel on record.

37. In view of the discussions made above and the judgments of the Hon'ble Supreme Court there is no merit in the contention that the undertaking of the Counsel does not amount to injunction order or that undertaking was given without instructions of the defendants. The other judgments relied upon by the learned Counsel for the defendants in that regard are not applicable to the facts of the case.

38. Learned Counsel for the defendants submitted that there is no clear undertaking and such undertaking does not amount to temporary injunction order. The reading of the memos show that there were grammatical errors in the memos in saying that the defendants have not alienated the property. Apparently the memos were filed undertaking that the defendants do not alienate the property. Neither such contention was raised before the trial Court nor that was interpreted by the trial Court. Therefore the said contention does not deserve any merit. Reg. Nullity of the order:

39. Learned Counsel for the defendants claimed that the order of temporary injunction was nullity on the following grounds:

(i) The order was obtained by suppression of material fact;

(ii) The order of ex-parte order and notice of the order was not served on the defendants as required under Order XXXIX Rule 3 of CPC;

(iii) When ex-parte order is granted under Order XXXIX Rules 1 and 2 of CPC, the application for injunction shall be heard and decided within thirty days. But the trial Court went on extending the interim order without disposing of the said application. Therefore, that order was not in accordance with Order XXXIX Rules 1 and 2 of CPC.

40. The trial Court records show that the notices of the application were served on the defendants and they had appeared in the proceedings through their Counsel. Twice the defendants Counsel filed memo undertaking that the defendants will not to alienate the suit schedule property. The defendants contention that their Advocate was not authorized to file memo of undertaking or the said undertaking was given without their knowledge is already rejected.

41. Similarly, the contention that in the memo of undertaking there was no clear undertaking, is unworthy of acceptance. When the defendants Advocate appeared in the case and the order was passed in her presence, it cannot be said that the order was ex-parte order. Therefore the said contention or rejection of the application on that ground is wholly unsustainable. Since the order was passed on the undertaking of the learned Counsel for the defendants, there is no merit in the contention that the property was unidentifiable or its description was incorrect.

42. The Hon'ble Supreme Court in para 22 of the judgment in Tayabbhai M. Bagasarwallas case referring to the earlier judgment in D.M.Samyulla v. Commissioner, Corporation of the City of Bengaluru [1991 KLJ 352] held that 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.

43. In para 23 of the said judgment referring to the judgment in Chuck vs. Cremer it was held that if a party feels that the order is null or irregular and he might be affected by it should apply to the Court for the discharge of the order, but must not disobey that. It was held that if a party disobeys that on such grounds he is liable to be punished for contempt of Court and no application of such person for discharging the order will be entertained until he has purged himself of his contempt.

44. In para 54 of the judgment in Patel Rajnikant Dhulabhais case referred to supra referring to its earlier judgment in the Commissioner, Karnataka Housing Board, V. C.Muddaiah [AIR 2007 SC 3100] it was held that, if a party against whom such order is made has grievance, the only remedy available to him is to challenge the order in appropriate proceedings according to law. It was further held that such order cannot be defied on a spacious plea that no such order/direction could have been issued by the Court and upholding of such argument would seriously affect and impale administration of justice.

45. In para 59 of the said judgment it was held that punishing a person for contempt of Court though normally should not be resorted to, but it is the duty of the Court to uphold and maintain dignity of Courts and majesty of law which calls for such extreme s

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tep. 46. Similarly, in para 15 of the judgment in Anil Sharmas case referred to supra it was held as follows: “15. It is settled proposition of law that the contempt Court is not supposed to examine the merits of the order. The Contempt Court cannot go behind the order. The opposite parties cannot be permitted to judge the merits themselves of an order quashed by the High Court or they cannot be permitted to defy the Courts order on the ground that the order is not correct. If this is to be permitted, the entire judicial structure will fall down and every person will defy the orders on the ground that the order is not correct. .” (Emphasis supplied) 47. In view of the principles laid down in the above judgments there is no merit in the contention that the injunction order was null and void for non-compliance of Order XXXIX Rules 1, 2 and 3A of CPC or that was the outcome of suppression of material fact, therefore need not have been complied. 48. The other contention was that soon after the application under Order XXXIX Rule 2A of CPC is filed, the Court shall register that as Miscellaneous and issue notice of the same to the defendants contemnors since no such procedure was followed, the application was not maintainable. 49. The notice of the application was served on the defendants. It appears that after service of notice, the trial Court registered the application in Misc.No.38/2011 and tried that separately. Under the circumstances, the contention that the trial Court registering the case as Miscellaneous case does not survive since the defendants had sufficient notice of the application and participated in the proceedings availing the fullest opportunity. Even the contention regarding service of notice is also unsustainable. 50. It is worthy to note that the defendants had not even filed any counter to the application filed under Order XXXIX Rule 2A of CPC raising all such grounds. Thus they are only after thought. 51. In the light of the above said facts and circumstances, position of law and the judgments relied upon by the learned Counsel for the defendants do not aid them in seeking their exoneration. In rejecting the application, the trial Court acted contrary to the letter and spirit of Order XXXIX Rule 2A of CPC and the law enunciated by the Hon'ble Supreme Court. Thus the order is liable to be set aside. The appeal is allowed. The impugned order dated 02.08.2013 passed by the VIII Additional City Civil & Sessions Judge, Bengaluru is hereby set aside. Misc.No.38/2011 is hereby allowed. The defendants are held guilty of disobedience of their undertaking/the order of the trial Court restraining them from alienating the suit schedule property.
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