Chattisgarh High Court
Poonam Shukla vs Rahul Shukla on 11 June, 2025
Author: Narendra Kumar Vyas
Bench: Narendra Kumar Vyas
2025:CGHC:22984
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
WP227 No. 469 of 2025
1 - Poonam Shukla W/o Late Santosh Kumar Shukla Aged About 45 Years R/o
Kamthi Line Rajnandgaon, Tahsil And District- Rajnandgaon (C.G.)
... Petitioner(s)
versus
1 - Rahul Shukla S/o Manoj Kumar Shukla Aged About 40 Years R/o- Kamthi
Line Rajnandgaon, Tahsil And District- Rajnandgaon (C.G.) At Present R/o- Q.
No. 303, Rajendra Bhawan, Ntpc Kahalgaon, District- Bhagalpur (Bihar)
---- Respondent(s)
---------------------------------------------------------------------------------------------------------
For petitioner : Mr. Ratnesh Kumar Agrawal, Advocate.
Hon’ble Shri Justice Narendra Kumar Vyas.
Order on Board
11.06.2025
1. The petitioner has filed the present writ petition under Article 227 of the
Constitution of India assailing registration of MJC No. 150/2019 against
the petitioner on the application filed by the respondent under Order
XXXIX Rule 2-A of the Code of the Civil Procedure for violation of interim
injunction passed by the trial Court on 01.10.2009 under Order XXXIX
Rule 1 and 2 read with Section 151 of the Code of the Civil Procedure in
Civil Suit No. 27-A/2009 whereby direction for maintenance of status quo
was given.
KISHORE
KUMAR
DESHMUKH
Digitally signed by
KISHORE KUMAR
DESHMUKH
Date: 2025.06.20
10:51:29 +0530
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2. The brief facts as reflected from the record are that the plaintiff has
filed Civil Suit No. 27-A/2009 for declaration of title of suit property
described in Schedule-B of the plaint and partition of the suit property
to the extent of ¼th separate share. The plaintiff has also filed an
application for injunction against the defendant and the learned trial
Court vide its order dated 01.10.2009 has ordered for maintaining the
status quo with regard to the suit property. Thereafter, it has been
alleged that the defendant has started construction over the suit
property, as such, application under Order XXXIX Rule 1 and 2 CPC
was filed on 16.10.2019. The record of the case further demonstrates
that the said civil suit was dismissed on 31.10.2019.
3. From perusal of the order-sheets it is quite vivid that the plaintiff has
been examined before the trial Court on 12.12.2024 by way of an
affidavit as provided under Order 18 Rule 4 of the CPC in the
proceedings initiated under Order XXXIX Rule 2A CPC but the cross-
examination could not be done, as such the matter was fixed for
cross-examination of plaintiff on 26.02.2025, 27.02.2025, 03.04.2025,
04.04.2025 and thereafter the matter was again fixed for the evidence
of the plaintiff on 07.05.2025, thereafter, the petitioner has moved the
present writ petition on 08.05.2025 under Article 227 of the
Constitution of India challenging the registration of Miscellaneous
Judicial Case against them for breach of injunction.
4. Learned counsel for the petitioner would submit that the petitioner has
not disturbed the status quo order passed by the trial Court and since
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Civil Suit No. 103A/2011 has been dismissed on 31.10.2019 by the
trial Court, as such, the interim order passed by the Court has lost its
significance, therefore, the proceeding initiated against the petitioner
deserves to be quashed. To substantiate his submission he would
refer to judgments passed by the Hon’ble Supreme Court in case of
Neelam Gupta and Others vs. Rajendra Kumar Gupta and Others
{Civil Appeal No. 3159-3160 of 2019 decided on 14.10.2024},
Kanwar Singh Saini vs. High Court of Delhi {2012 (4) SCC 307}
and Food Corporation of India vs. Sukh Deo Prasad {2009 (5)
SCC 665} and would submit that the proceeding drawn by the learned
trial Court is without jurisdiction and would pray for quashment of the
entire proceedings.
5. I have heard learned counsel for the petitioner and perused the
documents annexed with the petition.
6. From the submission made by the learned counsel for the petitioner
and the documents annexed with the writ petition, the point emerged
for determination is ‘whether the application for breach of injunction is
not sustainable in view of subsequent dismissal of the suit?’
7. For proper adjudication of the issue raised in the present writ petition
it is expedient for this Court to extract relevant provisions of the CPC
which are extracted as under :-
Order XXXIX, Rule 1 provides that where in any suit it is proved by
affidavit or otherwise:
(a) that any property in disputed in a suit is in danger of being
wasted, damaged or alienated by any party to the suit or
wrongfully sold is of a decree, or
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(b) that the defendant threatens or intends to remove or dispose
of his property with a view to defrauding his creditors, or
(c) that the defendant threatens or dispossess the plaintiff or
otherwise cause injury to the plaintiff in relation to any property
in dispute in the suit,
the Court may by order grant a temporary injunction to restrain
such act, or make such other order for the purpose of staying and
preventing the wasting, damaging, alienation, sale, removal or
disposition of the property or disposession of the plaintiff or otherwise
causing injury to the plaintiff in relatino to any property in dispute in
the suit as the Court thinks fit, until the disposal of the suit or until
further orders.
● Order XXXIX, Rule 2 provides injunction to restrain or continuance of
breach:
(1) In suit for restraining the defendant from committing a breach of
contract or otherwise injury of any kind, whether compensation is
claimed in the suit or not the plaintiff may, at any time, after the
commencement of the suit and either before or after judgment, apply
to the Court for a temporary injunction to restrain the defendant from
committing the breach of or injury complained of or any breach of
contract or injury of a like kind arising out of the same contract or
relating to the same property.
(2) The Court may by order grant such injunction on such terms as to
the duration of the injunction, keeping an account, giving security or
otherwise, as the Court thinks fit.
Order XXXIX, Rule 2A Consequence of disobedience or breach of
injunction:
(1) In the case of disobedience of any injunction granted or other
order made under rule 1 or rule 2 or breach of any of the terms on
which the injunction was granted or the order made, the Court
granting the injunction or making the order, or any Court to which the
suit or proceeding is transferred, may order the property of the person
guilty of such disobedience or breach to be attached, and may also
order such person to be detained in the civil prison for a term not
exceeding three months, unless in the meantime the Court directs his
release.
(2) No attachment made under this rule shall remain in force for more
than one year, at the end of which time if the disobedience or breach
continues, the property attached may be sold and out of the proceeds,
the Court may award such compensation as it thinks fit to the injured
party and shall pay the balance, if any, to the party entitled thereto.
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8. From bare perusal of the record it is quite vivid that learned trial Court
passed interim order on 01.10.2009 wherein the parties were directed
to maintain staus-quo with regard to the structure of the suit property.
The allegation of the violation of the interim order has been levelled
against the petitioner on 16.10.2019 and the suit has been decided on
31.10.2019. As such, the proceedings for breach of injunction were
already initiated during the pendency of the suit. Therefore, the stand
taken by the petitioner that after dismisssal of the suit, the interim
order has lost its significance as such inititiation of the proceedings
under Order XXXIX Rule 2A is not maintainable and same deserves
to be rejected. This issue of continuation of proceeding for breach of
injunction has come up for consideration before the Hon’ble Supreme
Court recently in case of Smt. Lavanya C and Another vs. Vittal
Gurudas pai Since Deceased By Lrs and Others {Civil Appeal No.
13999 of 2024 decided on 05.03.2025} wherein Hon’ble Supreme
Court has held as under :-
3. A question of maintainability of the application under Order
XXXIX Rule 2A was raised. With reference to Samee Khan v.
Bindu Khan {1998 7 SCC 59}, it was held that even if the injunction
order was subsequently set aside, the disobedience thereof is not
erased. The subsequent dismissal of a suit does not absolve the
party of liability of breach of injunction order. That apart, it was
observed that an appeal against the Trial Court’s dismissal of the
Original Suit was also pending before the High Court bearing
R.F.A.No.592/2017.
3.1 The substance of the dispute is that on 11 th July 2007, the
counsel for the appellants herein filed memo as follows :
“The undersigned counsel undertake that the
defendants have not alienate the suit schedule
property to any third person”
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6. A few dates require immediate recall. The undertaking
subject matter of controversy was given by the counsel on 11 th
July 2007 and reiterated on 13th August 2007. The Trial Court
made such an undertaking into an order of the Court on 17th
November 2007. The same was extended at regular intervals.
The application for violation of the undertaking/order of the
Court under Order XXXIX Rule 2A was made in 2011. An order
was made dismissing the application on 2nd August 2013.
Immediately thereafter, an appeal was filed before the High
Court. In the pendency of this appeal, the Original Suit came to
be decided on 2nd January 2017. An appeal against such
dismissal of the Original Suit was pending before the High Court
on the date that the impugned judgment came to be passed.
7.4 In Samee Khan (Supra) it was observed that :
“12. But the position under Rule 2-A of Order XXXIX
is different. Even if the injunction order was
subsequently set aside, the disobedience does not
get erased. It may be a different matter that the
rigour of such disobedience may be toned down if
the order is subsequently set aside. For what
purpose is the property to be attached in the case of
disobedience of the order of injunction? Sub-rule (2)
provides that if the disobedience or breach
continues beyond one year from the date of
attachment, the court is empowered to sell the
property under attachment and compensate the
affected party from such sale proceeds.”
8. There is no question as to the maintainability of the
application before this Court. It is also true that the order, in the
challenge against which the impugned judgment was passed,
was made in the pendency of the original suit and, therefore, it
is saved from that bar as well. No error, therefore, can be found
on the exercise of such jurisdiction.
9. The judgment cited by the learned counsel for the petitioner in case of
Neelam (Supra) is distinguishable on the facts as before the Hon’ble
Supreme Court while hearing the civil appeal, a contempt proceeding
was also drawn against non-compliance of the interim order passed
by the Hon’ble Supreme Court. The Hon’ble Supreme Court taking
into consideration the fact that the civil suit has been decreed in
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favour of the appellant by the Hon’ble Supreme Court, closed the
contempt proceeding whereas in the present case, the civil suit was
pending when the proceeding under Order XXXIX Rule 2-A of the
CPC was initiated, as such it is not applicable to the facts of the case.
10. So far as the judgment cited by the learned counsel for the petitioner
in Kanwar Singh Saini (Supra), he has relied upon paragraph Nos.
17 and 18 which reads as under :-
17. 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 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 be passed in the case and if the
case is ultimately dismissed, the interim order stands nullified
automatically.
18. In case there is a grievance of non-compliance of the terms of
the decree passed in the civil suit, the remedy available to the
aggrieved person is to approach the execution court 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 under Order
XXXIX Rule 2A CPC is not maintainable once 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
Act 1971 when an effective and alternative remedy is not available
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 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 of violation or breach of permanent injunction
granted at the time of passing of the decree.
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11. This is not the situation in the case in hand as the Hon’ble Supreme
Court has held that application under Order XXXIX Rule 2A CPC is
not maintainable once the suit stood decreed as the decree holder
has remedy available to him under Order 21 Rule 32 CPC which
provides an opportunity of obeying the decree and has willfully failed
to obey the decree and the decree may be enforced by way of
attachment of the property or by detaining in the civil prison or by
both. This provision further provides that in case of a decree for
restoration of conjugal rights by the attachment of the property or in
the case of a decree for specific performance of the contract. In the
present case, since the breach of injunction has been alleged during
the pendency of the suit, therefore, no assistance can be provided to
the petitioner on the strength of this judgment.
12. So far as judgment cited by the learned counsel for the petitioner in
Sukh Deo Prasad (Supra), he has relied upon paragraph 38 which
read as under :-
38. The power exercised by a court under order XXXIX, Rule 2A of
the Code is punitive in nature, akin to the power to punish for civil
contempt under the Contempt of Courts Act, 1971. The person
who complains of disobedience or breach has to clearly make out
beyond any doubt that there was an injunction or order directing
the person against whom the application is made, to do or desist
from doing some specific thing or act and that there was
disobedience or breach of such order. While considering an
application under order XXXIX Rule 2A, the court cannot construe
the order in regard to which disobedience/breach is alleged, as
creating an obligation to do something which is not mentioned in
the `order’, on surmises suspicions and inferences. The power
under Rule 2A should be exercised with great caution and
responsibility.
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13. From the above stated judgments, it is quite vivid that none of the
judgments dealt with the situation where proceedings have been
initiated during the pendency of the suit and subsequently the suit has
not been decreed in favour of the defendant, therefore, the judgments
cited by the learned counsel for the petitioner are distinquishable on
the facts of the present case.
14. In view of the aforesaid law laid down by the Hon’ble Supreme Court
in Smt. Lavanya (supra) and considering the facts of the present
case, initiation of action against the petitioner under Order XXXIX
Rule 2A of the CPC during the pendency of the civil suit is still
maintainable after dismissal of the civil suit, therefore, learned trial
Court has not committed any illegality or pervisity in registering the
MJC No. 150/2019 against the petitioner on the application under
Order XXXIX Rule 2-A of the CPC which warrants interfrence by this
Court.
15. So far as the stand of the learned counsel for the petitioner that the
petitioner has not chagned the structure of the suit land, as such not
violated the interim order dated 01.10.2009 is a matter of evidence
which can only be ascertained by the learned trial Court. Therefore, I
do not find any ground to entertain present Writ Petition. Accordingly,
the writ petition deserves to be and is hereby dismissed.
16. It is made clear that this Court has not expressed anything on the
merits of the case. It is for the trial Court to decide the case on its own
merits, evidence, materials placed on record without being influenced
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from the facts that the proceeding against registration of the case for
alleged violation of injunction order has been dismissed by this Court.
17. No order as to costs.
Sd/-
(Narendra Kumar Vyas)
JUDGE
Deshmukh