RADHAMOHAN RANA Vs. GOBINDA GOPALANANDA

JUDGEMENT

(1.) THE two revisions were heard together and this order will govern them. Both of them are directed against the orders of the Cts. below visiting the petnrs with some punishment for having disobeyed an order of injunction passed by the Ct under Order 39, Rule 2, C. P. C. & against the consequential order of directing the defts. to restore possession of the subject matter of dispute back to the pltf. which had been taken in violation of his order of prohibition in the order of temporary injunction.

(2.) IT is fundamental that nobody shall be proceeded against in contempt except for wilful violation of a Ct's order - be it a prohibitory or stay or injunction order - as the case may be. The circumstances of this case have to be set out in order to examine the question whether the petnrs were guilty of wilful violation. The circumstances are: (i) The opposite party, who was a trustee of Khirachora Gopinath Jiu Temple at Remuna, & the endowment thereof, was dismissed by the Hindu Religious Endowment Comr on his finding that the endowment was a public one. He appointed the petnrs, as trustees, in exercise of his powers under the Hindu Religious Endowments Act. As provided in the Act, the aggrieved person, namely, the outgoing trustee, brought a civil suit, in which these civil revisions arise, for having it declared that the temple & endowment were private of which he was the hereditary trustee & that the Hindu Religious Endowments Comr's order declaring the same as public was wrong & was liable to be set aside, (ii) The Hindu Religious Endowments Comr was not impleaded as a party -deft to the suit at the beginning. While the suit was proceeding as between the newly appointed trustees & the outgoing trustee, the latter moved the Ct to restrain, by an order of injunction, the newly appointed trustees, namely, the defts, from interfering with his possession & management of the endowment & performance of sebapuja. The learned trial Ct issued a preliminary order of injunction calling upon the defts to show cause why the preliminary order should not be made absolute. Along with that, an interim order of injunction was passed. Service of notice accompanied the interim order of injunction. The defts put in an objection against the order being made absolute. This objection was never attended, to by the trial Ct nor was the order ever made absolute. On some date, fixed for hearing, the defts defaulted & the Ct passed an ex parte decree. The scope & effect of the ex parte decree was to set aside the Hindu Religious Endowments Comr's order declaring the temple & endowment to be public, & to grant perpetual injunction, against the trustees,, from interfering with the pltf's management of the endowment, & performance of sebapuja. Necessarily, with the passing of this ex parte decree, the interim order of injunction become exhausted. It was, however, replaced by the order of perpetual injunction incorporated as a part of the decree. The defts, however, are not charged with having violated the said perpetual injunction order, but they later filed an appln for setting aside the ex parte decree. Eventually, the decree was set aside, & the suit was restored to its file. It appears from the defts' appln to the Hindu Religious Endowments Comr, under amended Schedule 9 of the Act, that they were genuinely under the belief that they were not, at the moment, bound by any order of injunction. They made out this point in the following manner, namely, that the interim order of injunction came to an end either with their filing objection against that order which was never adjudicated upon, or, at any rate, on the disposal of the suit by the ex parte decree. At any rate, the latter position is an obvious one, & cannot be taken exception to. This ex parte decree having been set aside, the quesftion arises whether the interim order of injunction was revived. There is nothing in the order setting aside the ex parte decree nor is there any other order incorporated in the order -sheet to show that the Ct meant to revive the pending proceedings in the matter of Injunction as well. Without such an express order & without determining whether cancellation of ex parte decree automatically revives the pending proceedings of an injunction, it is clear that the defts 'could be held justified to be under a genuine belief that they were not under the restraint of any order of injunction. In such a state of things, if they took possession of the disputed property appertaining to the endowment, they cannot be said to have been guilty of wilful violation of an order of injunction of the Ct prohibiting them from either taking over possession or otherwise interfering with the pltf's possession.

(3.) IN the course of the argument, our attention was invited to sub -s (3) of Schedule 9 of the Act, and it was contended that even if there is wilful violation of an order of injunction, passed, in such circumstances, as prevail in this case, Sub -section (3) gives the party complete immunity from any sort of legal proceedings which would include a proceeding consequent upon violation of the Ct's order of injunction prohibiting them from doing anything which the statute entitled them to do under the authority of the Hindu Religious Endowments Comr. in their capacity as public servants within the meaning of sub -s (4), provided that is done in. good faith. This opens a question of some significance. An argument against this contention may take the shape that the legal proceeding is not for having taken possession but for breach of the Ct's order which supervened. What was meant by sub -s (3) referred to such, acts or offences that would ensue directly & solely from the act of taking possession. It would save the man from committing criminal trespass & from being liable to damages for having taken possession of the property & so on & so forth. In view of the importance of the question, it is difficult for me, as at present advised, to come to any definite decision. The solution swings between two extremes - on one side the paramountcy of the law incorporated in statute has to be maintained, & on the other side, the sovereignty of the Ct & its order have also to be respected. As it does not strictly arise in this case, in view of its having been successfully disposed of on the point, already considered, I should not express any opinion.