Tayabbhai
M. Bagasarwalla & ANR Vs. Hind Rubber Industries Private Limited [1997] INSC
189 (19 February 1997)
B.P.
JEEVAN REDDY, SUHAS C. SEN
ACT:
HEAD NOTE:
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, 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 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 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 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 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 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 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 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 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 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 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 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 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 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.
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