Case Note & Summary
This appeal from order arose from a contempt application filed under Order XXXIX Rule 2(A) of the Code of Civil Procedure, 1908. The original plaintiff (Respondent No.1) had filed a suit for declaration and injunction alleging that the appellants and Respondent No.7 were constructing a building in violation of D.C. rules. The trial court initially refused temporary injunction, but in Misc. Civil Appeal No.207 of 1988, the Additional District Judge, Thane, by order dated 29-10-1988, granted a temporary injunction restraining the appellants from proceeding with construction horizontally or vertically and from creating third-party interests. The order also directed filing an affidavit of the stage of construction as on 30-10-1988. An affidavit was filed on 02-11-1988 by Appellant No.2 stating that R.C.C. work was over on certain floors and brick work was nearly over. A court commissioner visited the site on 15-11-1988 and reported that construction was going on, slabs were completed, and brick work was in progress. On 19-04-1991, Respondent No.1 filed an application under Order XXXIX Rule 2(A) (Exh.74) alleging that notwithstanding the injunction, the appellants completed six floors and entered into agreements for sale of flats, thereby breaching the order. The appellants filed a reply on 26-07-1991 denying breach and stating that construction was as per approved plan. The appeal was later transferred to the Court of Additional District Judge, Kalyan. The appellants did not attend after transfer. On 11-10-2004, the court directed Respondent No.8-Municipal Corporation to file an affidavit, which stated that a building with basement plus ground plus six upper floors was constructed without permission, with 48 flats in excess of FSI and no completion certificate. On 17-01-2005, the Additional District Judge, Kalyan allowed the contempt application, finding gross breach of injunction, and directed detention of appellants in civil prison for one month, attachment, and directed the Municipal Corporation to take action for demolition. The appellants appealed to the High Court, arguing that they were not served notice after transfer and should be given an opportunity to contest. The High Court found that the breach was gross, but the judgment excerpt provided does not include the final order of the High Court.
Issue of Consideration
Whether the lower appellate court correctly held the appellants guilty of wilful breach of the temporary injunction order dated 29-10-1988 and whether the order of detention and attachment was justified, particularly when the appellants claimed they were not served notice after transfer of the appeal to Kalyan.
Law Points
- Order XXXIX Rule 2(A) of Code of Civil Procedure
- 1908
- breach of temporary injunction
- wilful disobedience
- detention in civil prison
- attachment
- contempt of court
- transfer of proceedings
- opportunity to be heard
Case Details
2005 LawText (BOM) (03) 9
Appeal from Order No.172 of 2005
Mr.G.S.Godbole i/b Jaiwant S.Chandanani for Appellants, Mr.R.S.Apte with A.A.Garge for Respondent Nos.1 to 6, Mr. Vijay Patil for Respondent No.8
Kishan Naraindas Daryani & Ors.
Pessumal Chimandas Veleja & Ors.
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Nature of Litigation
Civil Contempt Proceedings
Remedy Sought
Respondent No.1 sought action under Order XXXIX Rule 2(A) of CPC, 1908 to punish the appellants for wilful breach of temporary injunction, seeking their detention in civil prison and attachment of property.
Filing Reason
Alleged violation of injunction order dated 29-10-1988 by continuing construction, completing six floors, and entering into sale agreements of flats, thereby creating third-party interests.
Previous Decisions
In R.C.S.No.189 of 1998, trial court rejected temporary injunction. Misc.Civil Appeal No.207 of 1988, Additional District Judge, Thane granted temporary injunction on 29-10-1988. Application Exh.74 under Order XXXIX Rule 2(A) filed on 19-04-1991. Additional District Judge, Kalyan allowed application on 17-01-2005, directing detention for one month, attachment, and directing Municipal Corporation to take demolition action. Present appeal challenges that order.
Issues
Whether the appellants committed wilful breach of the temporary injunction order dated 29-10-1988 by continuing construction and selling flats?
Whether the order of detention and attachment passed by the lower appellate court was justified?
Whether the appellants were denied opportunity to defend the contempt application because they were not served notice of transfer of the appeal to the Court at Kalyan and thus were absent at hearing?
Submissions/Arguments
Appellants contended that after transfer to Kalyan, they were not served notice and therefore could not remain present; they should be given opportunity to contest the contempt application by remanding it.
Appellants argued that they were entitled to lead evidence to show there was no breach or any breach was not wilful.
Respondents Nos.1 to 6 argued that appellants were all along represented by an advocate and had appeared on some dates after transfer, hence aware of proceedings, and the breach was gross.
Respondent No.8 (Municipal Corporation) supported the order, contending that construction was unauthorised and demolition action was warranted.
Judgment Excerpts
This is a very disturbing case where an order of temporary injunction passed by the Court has been violated by constructing a building in gross breach of the order and by inducting third parties in possession of the flats in the building. (Para 1)
I say that in the building there are two parts, A and B. A part on the northern side to room No.196 of Block-1‘A-32 and B part is near the No.202 belonging to the appellant. In the B portion, 5 floor of R.C.C. work is over and on 2nd floor ground and 1st brick work is nearly over. The brick work in upper 3 floors was taken up when the injunction order has been brought to our notice. On the A side 3 slabs are put. Brick work on ground floor was over and brick work on second floor was nearly on completion. (Para 4)
a) That on 15-11-1988 the construction of the building was going on. b) In the North portion three slabs were completed and on Southern portion three slabs work was completed as for the 4th slab centering was done. c) On the first floor brick work was in progress and in some portions plastering work was being done. d) In the ground floor in the North Part, brick work is done and on Southern side, brick work of half wall was done and the labourers were doing the work. (Para 5)
After considering the entire material on record the learned Additional District Judge found that there was a gross breach of order granting temporary injunction on the part of Appellants by carrying out the construction and by creating third party interests in respect of the flats in building. (Para 9)
Procedural History
Respondent No.1 filed R.C.S.No.189 of 1998 for declaration and injunction. Temporary injunction was denied by trial court. On appeal, Misc.Civil Appeal No.207 of 1988, the Additional District Judge, Thane granted temporary injunction on 29-10-1988. An application for contempt (Exh.74) under Order XXXIX Rule 2(A) CPC was filed on 19-04-1991 alleging violation. Reply filed on 26-07-1991. The appeal was transferred to Kalyan and heard by Additional District Judge, Kalyan, who by judgment and order dated 17-01-2005 allowed the contempt application, ordering detention, attachment, and municipal action. Appellants filed the present Appeal from Order No.172 of 2005 before the High Court, which was heard on 09-03-2005.
Acts & Sections
- Code of Civil Procedure, 1908: Order XXXIX Rule 2(A)
