1 HIGH COURT OF MADHYA PRADESH : JABALPUR SINGLE BENCH: JUSTICE J.K. MAHESHWARI MISCELLANEOUS APPEAL NO. 3800 OF 2006 State of M.P. and others vs Dinesh Singh PRESENT : For appellants : Sarvashri R.D. Jain, Advocate General, Purushendra Kaurav, Dy. Advocate General and Sanjay K. Agrawal, Advocate For respondent : Shri Manish Datt, Advocate O R D E R (18/10/2011) The State Government along with their officers have preferred this appeal under Order 43 Rule 1(r) of the Code of Civil Procedure, 1908 challenging the order dated 8.9.2006 passed by IV Additional District Judge, Rewa in MJC No.25/1997 allowing the application under Order 39 Rule 2A of CPC and for the breach of injunction, appellant No.2 has been directed to undergo civil imprisonment for one month while appellants No.3, 4 and 5 for 15 days. 2. The relevant facts of the case are that respondent instituted a suit in the Court of II Civil Judge Class-I, Rewa on 6.1.1992 contending that he is the owner of the land bearing Khasra No.236/1 and constructed a house and boundary wall thereon. It was alleged that Tehsildar, Nazul, Rewa is trying to demolish the 2 boundary wall constructed by him. The application seeking leave to entertain the suit and to grant the urgent interim relief was also filed under Section 80(2) of the CPC which was rejected as per order dated 6.1.1992. Feeling aggrieved by the said order, a revision was preferred before the Additional District Judge, Rewa which was registered as Civil Revision No.3/92 and on the same day an ex parte interim order was passed directing that the boundary wall situated in Khasra No.236/1 shall not be demolished and it be allowed to remain in the same position. The said revision was disposed of vide order dated 29.1.1992 with the observation that the respondent may institute a regular suit in the competent civil court along with an application for grant of temporary injunction, however it was observed that the interim order dated 6.1.1992 shall continue to remain in force till the application for temporary injunction is decided by the Trial Court. The respondent instituted a regular suit in the Court of II Civil Judge Class-I, Rewa which was registered as Civil Suit No.9-A/92. On filing an application under Order 7 Rule 11 of CPC by the other side, the suit was dismissed as per order dated 11.2.1992 with an observation that no orders are necessary on the application for temporary injunction. Feeling aggrieved by the said order, a regular Civil Appeal No.13-A/92 was preferred which was allowed vide judgment and decree dated 25.3.1992 setting aside the order of the Trial Court and the matter was remanded back to decide the same afresh in accordance with law. After remand, the application for temporary injunction was decided vide order dated 14.10.1998 restraining defendants from demolishing the boundary wall or to take any action in furtherance thereto. In the application under Order 39 Rule 2A, it is stated that the boundary wall has been demolished on 10.6.1997 by the appellants, at that time the order passed by the Additional 3 District Judge, Rewa dated 6.1.1992 was in existence, therefore the appellants No.2 to 5 have committed the breach of injunction for which they are liable to be punished. 3. The appellants in reply contended that the boundary wall of the respondent was demolished on 6.1.1992 even prior to passing of interim order by the District Judge, Rewa, however under the garb of injunction order the respondent has again constructed boundary wall obstructing a public way connecting the village Padra and Dheka. It is stated that the residents of these two villages were using the said way, however by constructing a boundary wall the right to use of the said passage of the villagers was being obstructed by respondent, therefore the order under Section 133 of the Cr.P.C. was passed by the Sub Divisional Magistrate, Tehsil Huzur District Rewa in the proceedings instituted on 24.12.1991 much before filing of the suit. The obstruction by the said boundary wall was causing nuisance to the public at large, however the SDM passed an order on 5.5.1997 in exercise of powers conferred under Section 142 of Cr.P.C. directing the police personnel to remove the obstruction, therefore the boundary wall was removed on 10.6.1997 and the thorough fair was made available for the residents of the villages Padra and Dheka. It was not disputed that appellant No.2 was posted as Sub Divisional Magistrate while the appellants No.3 to 5 were the police personnel posted at the relevant point of time. It is said that on the date of demolition i.e. 10.6.1997 the order of injunction was not in existence, however question of breach of injunction do not arise. It is said that the suit itself was decreed directing payment of compensation in favour of respondent and in furtherance thereto the State Government has 4 compensated the respondent by making such payment. In such a circumstances, the order of punishment passed by the Trial Court for breach of injunction is liable to be set aside. 4. Shri R.D. Jain, learned Advocate General for the appellants contends that the effect of order dated 29.1.1992 passed in Civil Revision No.3/92 has ceased on 11.2.1992, on account of dismissal of the suit itself. Against the said order an appeal was preferred which was decided on 25.3.1992 setting aside the order of dismissal of the suit and to decide it in accordance with law. While passing such order, the appellate court has not revived the order of injunction. In absence of any order of revival, the injunction order was not in existence on the date of alleged breach. The trial Court passed an order of injunction on 14.10.1998 allowing the application for temporary injunction. Thus as per the allegations alleged in the application for committing the breach on 10.6.1997, the order of injunction was not in operation however the punishment as directed for the breach of injunction is liable to be set aside. Learned Advocate General has placed reliance on the Division Bench judgment of this Court in the case of Madanlal Chhotelal and others Vs. Ramprakash Ghasiram, AIR 1963 M.P. 329 wherein it was held that if the suit is dismissed and an appeal is preferred then the suit would be at the stage of the appeal, however unsuccessful plaintiff is required to invoke the power for revival of the order of injunction which ceases its effect on dismissal of the suit. While dealing with the said issue, the Full Bench decision of the Madras High Court in the case of Tavvala Veeraswami Vs. Pulim Ramanna and others, AIR 1935 Madras 365 has been distinguished and relying upon the Full Bench judgment of Mysore 5 High Court in the case of Gangappa V. Boregowda and others, AIR 1955 Mysore 91 dissenting from the Full Bench decision of Travancore-Cochin High Court in the case of Muhammad Abdul Khadir Vs. Padmanabha Pillai, AIR 1952 Trav-C 414 (C) and relying upon the Division Bench judgment of Andhra Pradesh High Court in the case of Kumaji Sare Mal Firm V. Kalwa Devadattam, AIR 1958 A.P. 216 upholding the another Full Bench judgment of Madras High Court in the case of Balaraju Chettiar V. Masilamani Pillai, AIR 1930 Mad. 514, propounded that on dismissal of the suit the interim order ceases its effect, and on filing the appeal it would not automatically revive. It is submitted that the Full Bench of Allahabad High Court in the case of Abdul Hamid V. Karim Bux and others, AIR 1973 Allahabad 67 have taken the same view, and also relied upon the judgment of Madhya Pradesh High Court on the said issue. Subsequently the Single Bench of Allahabad High Court in the case of Nagar Mahapalika Vs. Ved Prakash, AIR 1976 Allahabad 264 has taken the same view. The Gauhati High Court in the case of Smt Usha Rani Banik Vs. Haridas Das and others, AIR 2005 Gauhati 1 has also approved the same principle. Considering the views taken by various High Courts, it is apparent that the order of injunction ceases its effect on dismissal of the suit. On filing the appeal, if the appellate court has directed for remand, the order of injunction would not automatically revive unless and until the order of revival of injunction is passed. In the present case, while directing remand the order of revival of injunction was not passed and in the suit injunction was granted on 14.10.1998 prior to the same the boundary ball was demolished on 10.6.1997, therefore there is no breach of the order of injunction by the appellants, however prayed that the order of punishment may be set aside. 6 5. Per contra Shri Manish Datt, learned counsel appearing on behalf of the respondent placing reliance on the Full Bench decision of Madras High Court in the case of Tavvala Veeraswami (supra) contended that on restoration of the suit the ancillary orders automatically revived. In the present case, after dismissing the suit as not maintainable and on filing the revision the revisional court first directed that the fresh suit may be filed by plaintiff and the order of injunction shall remain in operation till the decision on application for temporary injunction. On filing a fresh suit, it was dismissed in second round, but after passing an order of remand by the appellate court, the order of injunction would revive automatically, however on the date i.e. 10.6.1997 the boundary wall was demolished in breach of the order of temporary injunction, therefore the appellants No.2 to 5 have rightly been punished by the Trial Court by passing the order impugned. In view of the foregoing, the prayer is made to dismiss the appeal. 6. After having heard learned counsel appearing on behalf of the parties and to decide the issue whether on the date of breach i.e. 10.6.1997 the order of temporary injunction passed by the revisional court would automatically revive on passing the order of remand at a subsequent stage and for the alleged breach to demolish the boundary wall appellants may be punished ? 7. In facts of the present case and to deal with the said issue, the judgments so relied upon and other judgment on the issue is required to be seen. Allahabad High Court in the case of Ram Chand v. Pitam Mal, ILR 10 All. 506 laid down that on an attachment before judgment like a temporary injunction becomes functus officio as soon as the suit terminated. The 7 observations of Hon'ble Mahmood, J. were based on an earlier Division Bench case of the Allahabad High Court in Chunni Kuar V. Dwarka Prasad, (1887) All WN 297. In the case of Balaraju Chettiar (supra) the Full Bench of Madras High Court followed the view taken by the Allahabad High Court and further by the Allahabad High Court in the case of Dular Singh Vs. Ram Chander, AIR 1934 All 165 and in Ghulam Dastgir V. Mohammad Amin, AIR 1937 All 682 reiterated the same principle. The Division Bench of the Andhra Pradesh High Court in the case of Kumaji Sare Mal Firm (supra) dissenting with the Full Bench of Travancore-Cochin's view held that once attachment is ceased as a result of the dismissal of the suit by the trial Court it would not get automatically revive when the suit is decreed in appeal. The Full Bench of Mysore High Court in the case of Gangappa (supra) while dissenting from the Travancore-Cochin High Court have laid down as under: “(10) An attachment before judgment is in the nature of an interlocutory order. It is an extraordinary relief granted to a plaintiff even before his claim is adjudicated upon and found to be true and if a suit is dismissed either for default or on its merits by the trial Court and the attachment before judgment has therefore to cease, he can certainly have not as much grievance as a person who has obtained a decree and attached property of the judgment- debtor whose right to attached property has been questioned and decided in summary proceedings and which are made expressly subject to a decision in a regular suit. Moreover it cannot also be urged that all interlocutory orders like say those passed on applications for temporary injunction the operation of which would have to cease on the dismissal of a suit, would automatically be revived or can be deemed to be in force without any further orders by an appellate Court or by the same Court after the suit is dismissed. To hold so 8 would lead to obvious and real difficulties. It is not also as though the plaintiff in such a case has no remedy. He could always apply to the same Court if a suit which has been dismissed for default is restored to file or to an appellate Court which has also ample powers to grant an order of attachment before judgment under the provisions of S.107(2), Civil P.C. In any event the possibility of hardship cannot warrant the ignoring of the express provisions of O.38, R.9 by which it is specifically laid down that an attachment before judgment shall cease by the dismissal of a suit. As observed by Mahmood, J. in 10 All 506 (E), all interim orders cannot survive the pendency of the main litigation.” 8. The Division Bench of M.P. High Court in the case of Madanlal Chhotelal (supra) has considered the Full Bench judgment of Madras High Court in the case of Balaraju Chettiar (supra). The learned Judges first examined the question whether the attachment before judgment would terminate, even though no formal order of withdrawal was passed by the trial Court while dismissing the suit. According to them, such a formal order would not be necessary and the attachment would terminate no sooner the suit is dismissed by the trial Court. The learned Judges thought that it would be too wide a proposition to say that an appellate decree per se would restore all the interlocutory orders passed in the original suit, as, in their opinion, the object of attachment being merely to satisfy any decree which may be passed in the suit. After reading the language of the Rules 5 and 6 to answer the issue said that the attachment contemplated relates to a decree passed in the suit by the trial Court alone and the appellate court, therefore opined that the attachment evidently is for a purpose which depends on the decree of the trial Court. If the trial Court dismisses a suit, attachment ceases, although no formal order of 9 withdrawal is required. The appellate court might have decreed the suit, the order of attachment so terminated on dismissal of the suit would not be revived. Further referring the judgment in the case of Pindi v. U. Thama, AIR 1931 Rang 281, Abdur Rahman V. Amir Sharif, AIR 1918 Cal 39, held that the attachment before judgment terminates with the dismissal of a suit and the attachment itself did not survive after the dismissal of the suit. Further referring the judgment of Dular Singh Vs. Ramchander (supra) held on the analogy that the attachment before judgment terminated with the dismissal of the suit, any transfer effected by the judgment-debtor subsequent to the dismissal of the suit and before the passing of a reversing appellate decree, it would not be void. In Ghulam Dastgir V. Mohammad Amin (supra) the view taken by the Allahabad High Court in the case of Ram Chand V. Pitam Mal (supra) by Mr. Mahmood, J and also referring the another judgment of the Madras High Court in Jali Basappa V. Heerada Rudrappa, AIR 1939 Mad 167 and also of the Calcutta High Court in the case of Protap Chandra v. Saratchandra, AIR 1921 Cal 101 the same view was propounded. Thus considering various judgments of Madras High Court, Allahabad High Court, Andhra Pradesh High Court, Calcutta High Court, Full Bench Judgment of Mysore High Court in the case of Gangappa (supra) accepted those views dissenting from the Full Bench view of the Travancore Cochin High Court and the Madras High Court in the case of Tavvala Veeraswami (supra). The Judges of this Court have reached on the same conclusion applying the different analogy. Mr. Tare, J relying upon the principle of stare decisis approved the views of various High Courts as referred herein above and Mr. Newaskar, J held that the view taken by the Madras High Court in the case of Balaraju Chettiar (supra) and the Mysore 10 High Court in the case of Gangappa (supra) is the only logical view on the question under consideration. Thereafter, the Single Bench of the Allahabad High Court has followed the same view in the case of Nagar Mahapalika Vs. Ved Prakash (supra) and the Gauhati High Court in the case of Smt Usha Rani Banik (supra) has also propounded the same view on the issue holding that the order of temporary injunction would be operative only till disposal of the suit, it ceases its effect on dismissal of suit, the order of remand passed in appeal would not be automatic revival of injunction order. Rule 1 of Order 39 of CPC makes it clear that the temporary injunction may be granted in any suit where the facts have been proved by the affidavit or otherwise showing that the property in dispute is being wasted or alienated by the defendant or by any party. It has further been clarified that the court may pass an order restraining such party until disposal of the 'suit' or until further orders. Thus Rule 2 of Order 39 deals with the injunction to restrain repetition or continuance of breach in a suit. In view of the language of Order 39 Rule 1 and 2 of CPC, the court may pass an order until further orders as it thinks fit or until the disposal of the suit. Thus, the word 'suit' enumerated in Rule 1 and 2 of Order 39 of CPC would not be read as 'appeal' for grant of injunction, until specifically directed. Thus after dismissal of suit the appellate court is required to pass an order of injunction applying the same principle. After remand by appellate court, order of revival of injunction must be passed during the pendency of suit otherwise on dismissal of suit the said order ceases its effect. 9. In view of the foregoing discussion, this Court is bound by the view taken by the Division Bench in the case of Madanlal Chhotelal (supra) and in full agreement to the reasoning given by the Full Bench of Mysore High Court in the 11 case of Gangappa (supra) and the Full Bench judgment of the Allahabad High Court in the case of Abdul Hamid (supra) and in my opinion if an order of temporary injunction is passed in civil suit, it ceases its effect on dismissal of the suit. On filing an appeal and on allowing the same by setting aside the said order of dismissal of the suit by an order of remand the effect of order of injunction would not automatically revive. The appellate court on remand ought to have passed the order of revival of temporary injunction during the pendency of a suit. If the order of revival has not been passed, on the allegation of demolition of the boundary wall for the breach of injunction, punishment cannot be directed as per the language of Order 39 Rule 1 and 2 of CPC, however such language is not required to be used in a directory manner particularly in a case of breach of injunction when the consequence is of punishment of individual persons by sending them into the custody or for civil prison. 10. In view of the aforesaid legal position, the facts of the present case are required to be analyzed. The suit filed by respondent was instituted on 6.1.1992, which was dismissed refusing leave to entertain the suit for granting interim injunction. On filing revision, the revisional court in the first round granted injunction on 6.1.1992 in Civil Revision No.3/1992 restraining the appellants to not to demolish the boundary wall. The said revision was disposed of vide order dated 29.1.1992 with a liberty to the respondent to institute a regular suit in the competent civil court directing that the interlocutory order shall continue till the decision on the application for temporary injunction in the suit. Thereafter, a Regular Civil Suit No.9-A/92 was filed which was dismissed by allowing the application under Order 7 Rule 11 of CPC vide order dated 11.2.1992 and it was 12 observed that as the suit itself is dismissed, however the order on the application for temporary injunction is not necessary. On filing an appeal, it was allowed as per order dated 25.3.1992 and the Trial Court was directed to decide the suit afresh in accordance with law. While passing the said order of remand, the appellate court has not passed any order of revival of the injunction which was ceased on dismissal of civil suit. Admittedly, on the application for temporary injunction the trial Court granted injunction on 14.10.1998 while breach of injunction by demolition of boundary wall as alleged on 10.6.1997 during such period the appellate court or trial court has not passed any order for revival of the injunction order of its continuation. Thus the Trial Court was not justified to record the finding of breach of injunction for an act committed on 10.6.1997, however the finding of guilt for the said breach and to direct the punishment of appellants No.2 to 5 is wholly unsustainable in law. 11. In view of the foregoing discussions, the appeal filed by the appellants is hereby allowed. The order dated 8.9.2006 passed by IV Additional District Judge, Rewa in MJC No.25/97 holding the appellants No.2 to 5 guilty and to direct to undergo the sentence, is hereby set aside. In the facts and circumstances of the case, the parties are directed to bear their own costs. (J.K. Maheshwari) Judge DV