C.W.J.C. No.9209 OF 2011 RAJ KUMAR JHA …………………………….………. Petitioner Versus BADRINATH JHA .………..…………………… Respondent ******** For the Appellant : Mrs. Narmata Mishra, Advocate Mr. Ratnakar Jha, Advocate For the Respondent : Mr. Shashi Nath Jha, Advocate Dated : 6thday of July, 2011 O R D E R 03. 06.07.2011. This Writ application has been filed by the petitioner against the order dated 07.05.2010 passed by Sri Ajit Kumar Ojha, learned Addl. District Judge, Madhubani in Misc. Appeal No.39 of 1993 whereby the lower appellate Court dismissed the appeal and uphold the order dated 17.09.1993 passed by Munsif Ist, Madhubani in Misc. Case No.1 of 2009 and also to set aside the said order passed by learned Munsif. (2) It appears that said Misc. Case No.1 of 2009 was filed by the respondent under Order 39 Rule 2(A) of the Code of Civil Procedure for punishing the petitioner and another who were defendant in Title Suit No.79 of 1990 on the ground that the order dated 06.11.1990 passed by the Court has been intentionally violated by the defendant- petitioner. After taking evidences oral as well as documentary, the learned Court below found the petitioner and another who were defendants guilty of disobedience of - 2 - the order of the Court and awarded civil imprisonment for 5 days by the impugned order dated 17.09.1993. Appeal was filed. By the impugned order dated 07.05.2010 in absence of the appellant, the appellate Court decided the Misc. appeal on merit and dismissed the same upholding the trial Court’s finding. (3) Mrs. Narmata Mishra, the learned counsel appearing on behalf of the petitioner assailed the impugned orders on two accounts. Firstly, that the lower appellant Court could not have discussed and decided the Misc. Appeal on merit in absence of the petitioner. The lower appellate Court could have dismissed for default the Misc. appeal. There was no specific order in Order dated 06.11.1990 passed by the trial Court to do a particular thing or to desist from doing a particular thing. Secondly, the learned counsel submitted that the plaintiff-respondent filed injunction application praying for restraining the defendants from interfering in the use and enjoyment of Rasta. The learned Court below passed order on 06.11.1990 to the effect that the parties are directed to maintain status quo. This order passed by the Court below can be interpreted in more than one ways. The learned counsel further submitted that while passing the order holding the defendants guilty, the learned Court below came to the conclusion that after passing the status quo order, the defendants plastered the wall which was in existence prior to passing of the order and, therefore, the - 3 - defendants violated the status quo order. There is no finding to the effect that the defendants interfered the peaceful enjoyment of Rasta by the plaintiff. (4) On the other hand, the learned counsel appearing on behalf of the opposite party submitted that after perusal of the evidences and the report of the Pleader Commissioner, the trial Court found that the defendants have violated the injunction order passed by the Court below on 06.11.1990. Since the status quo order was passed in presence of the defendants and on the application filde by the plaintiff, it will be deemed that the prayer made in the injunction application was allowed by the trial Court and thereafter the defendant plastered the wall. Since status quo order was passed, the defendant could not have plastered the wall. So far Misc. appeal is concerned, for long period, the appellants never appeared and, therefore, the learned Court below passed the impugned order discussing the materials available on record. Therefore, in exercise of supervisory jurisdiction, this Court will never interfere with the impugned orders. (5) From perusal of the order dated 06.11.1990, it appears that the learned trial Court passed order directing the parties to maintain status quo only. In the injunction application, the prayer was made by the plaintiff to restrain the defendants from interfering in the use and enjoyment of Rasta. It is admitted fact that prior of this order, there was a wall in existence constructed by the defendants. - 4 - The case of the plaintiff is that the defendants are narrowing the Rasta. The plaintiff thereafter filed an application under Order 39 Rule 2 (A) C.P.C. alleging that the defendant has plastered the wall after passing status quo order. From perusal of the order passed by the Munsif also, it appears that the learned Munsif found that after status quo order, the defendants plastered the wall and, therefore, held them guilty for violating willfully the order dated 06.11.1990. (6) In A.I.R. 1961 Supreme Court 221 State of Bihar Vs. Sonabati, it has been held by the Hon’ble Supreme Court that when the order is reasonably capable of more than one interpretation and the party acted in accordance with his interpretation of the order, it cannot be said that willfully disobeyed the order of the Court. In the present case, the prayer was made by the plaintiff not to interfere with his enjoyment of the Rasta. There is no order in the context of which or subject to which such status quo order was issued. There is no order restraining the defendants from plastering the wall which was in existence prior to passing of the order. In the impugned order, there is no finding to the effect that in fact the defendant interfered in any way with the use and enjoyment of the Rasta by the plaintiff. (7) It is well settled principle of law that while making status quo order, the Court should clarify the conditions in the facts of which or subject to which such - 5 - direction is issued, the word status quo takes contextual meaning and may give room for several different interpretation. When the status quo order is granted indiscriminately and without classification or conditions, it will lead to ambiguity, difficulties and injustice. Therefore, the Court is required to indicate the nature of status quo, i.e., whether the status quo is in regard to possession or is in regard to title or in regard to nature of property or some other aspect. Here, as stated above only status quo order has been passed. There is no specification with regard to which parties were directed to maintain status quo. (8) In A.I.R. 2009(5) Supreme Court cases 665 A.I.R.2009 Supreme Court 2330 Food Corporation of India Vs. Sukh Deo Prasad, the Hon’ble Apex Court at paragraph 38 has held as follows : “38. The power exercised by a Court under Order 39 Rule 2-A 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 39 Rule 2-A, 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 2-A should be exercised with great caution and responsibility.” (9) In view of the above settled principal of law, the plaintiff was required to clearly make out beyond any - 6 - doubt that there was an injunction order directing the defendants to do or desist from doing some specific thing or act and that there was disobedience or breach of such order. The Court cannot construe the order in regard to which disobedience is alleged. Here, the Court below construe the status quo order in regard to plastering of the wall which is not mentioned in the order dated 06.11.1990. Since the power exercised under Order 39 Rule 2(A) of the Code of Civil Procedure is punitive in nature, the Court should exercise the said power with great caution and responsibility. In the present case, it appears that the learned trial Court accepted an interpretation of the order which does not flow from the order and has crated a liability where non-existed resulting in sending the defendants to jail. Likewise, the appellate Court without considering these well settled principle of law decided the appeal on merit upholding the order passed by the learned trial Court. Moreover, it appears that when the appeal was called out for hearing, nobody appeared on behalf of appellant. In such circumstances the lower appellate Court has wrongly exercised as jurisdiction not vested in it by law by deciding the appeal on merit. (10) In the present case at our hand, the learned Court below came to the finding that the defendant- petitioner violated the order dated 06.11.1990, i.e., status quo order considering the irrelevant materials and the findings so arrive at outrageously defise logic and suffer - 7 - from the vice of irrationality. Further, it appears that the findings are ipse dexit of the Court that too on conjecture and surmises. Thus, the orders of the trial Court as well as the appellate Court stands vitiated and are unsustainable in the eye of law. In exercising the jurisdiction under Order 39 Rule 2 (A), both the Court below have crossed the limits of jurisdiction and acted inflaggrant disregard of law and the error appears to be manifest and apparent on the face of the proceeding and, therefore, a grave injustice has occasioned thereby. I, therefore, find that it is a fit case where in exercise of supervisory jurisdiction, the impugned orders are liable to be set aside. (11) In the result, this writ application is allowed and the impugned orders dated 17.09.1993 passed by Munsif I, Madhubani in Misc. Case No.1 of 2009 and the order dated 07.05.2010 passed by Sri A.K. Ojha, learned Addl. District Judge, Madhubani in Misc. appeal No.39 of 1993 are set aside and the Misc. Case No.1 of 2009 is dismissed. (Mungeshwar Sahoo, J.) Patna High Court, Patna The 6thday of July, 2011 Sanjeev/.A.F.R.