Case Note & Summary
The petitioner, M/s. Chetan Associates, a partnership firm, filed a suit against the respondent, Abhilasha Co-op. Hsg. Soc. Ltd., seeking injunctive reliefs to restrain the society from encroaching upon a plot where the petitioner was constructing additional buildings. On 20th December 2001, a consent order was passed in Notice of Motion No.58 of 2001, which restrained the society from encroaching upon the suit plot but allowed the society to carry out repairs and maintenance. Subsequently, the petitioner alleged that the society had breached the consent order by fixing tiles on the terrace of the existing building. The petitioner filed Notice of Motion No.1816 of 2013 under Order 39 Rule 2A of the Code of Civil Procedure, 1908, seeking attachment of the society's property, detention of its office bearers in civil prison, and removal of the tiles. The learned City Civil Court Judge rejected the notice of motion on 18th December 2018, holding that the society's actions were not in breach of the consent order. The petitioner challenged this order by way of a writ petition under Article 226 of the Constitution of India. The High Court examined the terms of the consent order and found that it did not create an absolute bar against the society from carrying out repairs and maintenance. The court noted that the consent order specifically allowed the society to carry out repairs and maintenance, and the fixing of tiles on the terrace was a permissible repair. The court further held that for an action to constitute breach of an injunction, it must be clearly prohibited by the order, and ambiguities in consent orders are construed in favor of the party alleged to have breached. The court also observed that the drastic remedies under Order 39 Rule 2A are not to be granted lightly and require clear proof of willful disobedience. Since the petitioner failed to establish any breach, the High Court dismissed the writ petition, upholding the rejection of the notice of motion.
Headnote
A) Civil Procedure - Consent Order - Interpretation - Order 39 Rule 2A, Code of Civil Procedure, 1908 - The court interpreted the scope of a consent order which restrained the society from 'encroaching upon the suit plot' but allowed the society to carry out repairs and maintenance. The court held that the fixing of tiles on the terrace was a permissible repair and not a breach of the order, as the order did not create an absolute bar against any construction. (Paras 10-15) B) Civil Procedure - Breach of Injunction - Order 39 Rule 2A, Code of Civil Procedure, 1908 - The court held that for an action to constitute breach of an injunction, it must be clearly prohibited by the order. Ambiguities in consent orders are construed in favor of the party alleged to have breached. The petitioner failed to establish that the society's actions were in violation of the consent order. (Paras 16-20) C) Civil Procedure - Attachment and Detention - Order 39 Rule 2A, Code of Civil Procedure, 1908 - The court held that the drastic remedies of attachment of property and detention of office bearers under Order 39 Rule 2A are not to be granted lightly and require clear proof of willful disobedience. Since no breach was established, the rejection of the notice of motion was justified. (Paras 21-25)
Issue of Consideration
Whether the respondent-society committed breach of the consent order dated 20th December, 2001, by fixing tiles on the terrace, and whether the petitioner was entitled to reliefs under Order 39 Rule 2A of the Code of Civil Procedure, 1908.
Final Decision
The High Court dismissed the writ petition, upholding the order of the City Civil Court rejecting the notice of motion. The court held that the society's actions were not in breach of the consent order, and the petitioner failed to establish willful disobedience.
Law Points
- Interpretation of consent orders
- Breach of injunction
- Attachment of property
- Civil contempt
- Order 39 Rule 2A CPC
