SURESH DUTTA SINGH Vs. RANDHIR SINGH

JUDGEMENT

(1.) This revision came up before one of us and in view of certain conflict of decisions, Kefayat Husain v. Abdul Rashid (decided by Agarwala, J.) reported in 1951 AWR (HC) 636 (A) and an unreported decision in Joshi Girjadharji v. Rao Sanwal Das Shahpuri, F. A. P. Order No. 219 of 1954 (decided by Mukherji, J. on 12-9-1957: (reported in AIR 1958 All 630) (3), the matter has been referred to a Division Bench on account of the important question of law involved in the case.

(2.) The facts giving rise to this case may be briefly stated. A suit No, 138 of 1952 was instituted in the court of the Munsif of Basti. During the pendency of that suit, an application for the issue of a commission and also for the issue of a temporary injunction, was made by the plaintiff. On the 30-5-1952, the court passed an ex parte order directing a pleader of the court to make local inspection as a commissioner and to serve an interim injunction pending disposal of the application, in terms proposed by the plaintiff. Shri R. P. Tripathi, the commissioner made the local inspection and he served an order of injunction on the defendants. Later on, an application was moved before the Munsif to the effect that the defendants had disobeyed the injunction and it was prayed that action be taken against them under Order 39, Rule 2(3) of the Code. The Munsif, by his order dated the 12th of September, 1955, held that there was a disobedience and he directed under Order 39, Rule 2-A of the Code of Civil Procedure that the parties in breach be detained in civil prison for a period of one month. As against that order, an appeal was preferred before the lower appellate court. The application was opposed inter alia, on the ground that the parwana of injunction served upon the defendants was vague and not capable of understanding without a copy of the plaint, which was not supplied to the defendants; that the parwana of injunction did neither bear the signature of the presiding officer of the court nor oi any authorised official and, therefore, an alleged disobedience thereof was not actionable; and that the order of injunction did not relate to the constructions, which were later on found to have been made by the defendants.

(3.) A preliminary objection was taken before the lower appellate court to the effect that the order having been passed under Order 39, Rule 2-A of the Code it was not appealable because what has been made appealable under Order 43, Rule 1 (r), was an appeal from an order under Rules 1, 2, 4 and 10 of Order 39. The lower appellate court, relying upon the case in Kefayat Husain v. Abdul Rashid 1951 All WR (HC) 636 (A), gave effect to that objection and held that no appeal lay from the order in question, which was passed under Order 39, Rule 2-A. The lower appellate court, without entering into the merits of the various other grounds of objections taken on behalf of the appellants in their grounds of appeal incidentally observed that the construction of the walls in question was continued by the defendants in disobedience of the order oi injunction and, therefore, the order of detention of the appellants for a period of one month in civil prison, was quite justified.