KISHORE CHANDRA Vs. PURI MUNICIPALITY

JUDGEMENT

(1.) The order dt. 31-3-82 of the Additional Subordinate Judge, Puri in Misc. Case No. 85/7 of 1981 rejecting the case on the ground that it has become infructuous is under challenge in this appeal. The Misc. Case was registered on the application under O.39, R.2A of the Civil P.C. filed by the appellant complaining of deliberate disobedience of the order of injunction passed by the appellate court by the respondents. In the appeal, an ex parte order of injunction was passed on 15-5-81 restraining the respondents from making any construction within a space of 50 feet in front of the house of the appellant in Puri town. The said order was made absolute on 18-7-81 after hearing both the parties. The petition under O.39, R.2A was filed on 11-8-81. By the impugned order the learned appellate court took the view that the Misc. case had become infructuous since the Title Appeal during the pendency of which the order of injunction was passed had in the meanwhile been disposed of.

(2.) The impugned order on the face of it is unsustainable. The position is well settled that an application under O.39, R.2A for taking action for disobedience of injunction order does not automatically lapse on the injunction order being subsequently challenged or the main case in which the said order was passed having been disposed of. The real question for consideration is whether there was disobedience of the order of injunction by the party complained against when the said order was in force and was to be complied with by the parties. The aforesaid view was taken in the case of Eastern Trust Company v. Makenzie Mann and Co. Ltd. AIR 1915 PC 106, wherein the Privy Council observed that an injunction, although subsequently discharged because the plaintiffs case failed, must be obeyed while it lasts. A similar view was also taken by this Court in the case of Gobinda Panda v. Chakradhara Routray, reported in AIR 1971 Orissa 10. The Court held that in such a matter what the Court is concerned with is not the ultimate decision in the matter, but as to whether on the date the impugned act was committed it was in violation of an existing restraint order to the knowledge of the violators.

(3.) In view of the settled position of law as discussed in the foregoing paragraph, the impugned order is unsustainable. Accordingly the Miscellaneous Appeal is allowed and the impugned order is set aside. The appellate court shall dispose of Misc. Case No. 85/7 of 1981 under O.39. R.2A CPC in accordance with law. There will be no order for costs of this appeal. Appeal allowed.