K.P. Mohanraj v. C. Vasu and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** ## **TUESDAY, THE 8TH DAY OF NOVEMBER 2016/17TH KARTHIKA, 1938** ## **FAO.No. 185 of 2013 ()** **-----------------------** ## **I.A.NO.2574/2002 IN CMA NO.648/2002 AND CONNECTED CASE OF THE DISTRICT COURT, PALAKKAD** ## **APPELLANTS/RESPONDENTS 1 TO 3:** **-------------------------------** **1. K.P.MOHANRAJ, S/O.GOVINDAN, SECRETARY, KERALA SMALL INDUSTRIES ASSOCIATION, PALAKKAD (REGISTERED UNDER THE SOCIETIES REGISTRATION ACT), SHEKHAR JYOTHI BUIDING, OLD PALAKKAD.** **2. T.CHENTHAMARAKSHAN, AGED 51 YEARS** - **PRESIDENT, KERALA STATE SMALL INDUSTRIES ASSOCIATION, PALAKKAD, SEKHAR JYOTHI BUILDING, G.B.ROAD, PALAKKAD** **3. XAVIER THOMAS KONDODY, GENERAL SECRETARY, KERALA STATE SMALL INDUSTRIES ASSOCIATION, VEEKAY TOWERS, BEERANKUNJU ROAD, KOCHI.** **BY ADVS.SRI.P.C.HARIDAS SRI.V.A.AJAI KUMAR** **RESPONDENTS/PETITIONERS - RESPONDENT NO.4:** **-------------------------------------------** **1. C.VASU, AGE 46 YEARS S/O.CHAMIYAR, VADAKKUMPURAM KALAM, KALAPATHY P.O., KUZHALMANNAM, PALAKKAD, M/S.VERTEX PLOYMERS, KULAVANMUKKU, KUZHALMANNAM, PALAKKAD-678 003.** **2. RAJENDRAN, AGED 53 YEARS** - **S/O.LATE M.D.NAIR, 5/370, K.K.ROAD, SAHYADRI COLONY, CHANDRA NAGAR POST, PALAKKAD DISTRICT-678007** **3. M.BALAKRISHNAN, AGED 49 YEARS S/O.MARI OORAPADAM, KODUMBA, PALAKKAD, MS.ENCORE ENGINEERING INDUSTRIES, OORAPADAM, KODUMBU, PALAKKAD - 678 001** **4. R.V.PRASAD, AGED 42 YEARS, S/O.DR.C.V.RAMANATHAN, RAMNATH, ALAMKODE, OLAVAKODE, PALAKKAD DISTRICT, M/S.RMETALIC, RAMANATH, ALAMKODE OLAVKODE - 678 002** **5. K.KUTTIKRISHNAN, AGED 44 YEARS S/O.K.KUTTU, KUNNAMKULANGARA HOUSE, PIRAYIRI, PALAKKAD, M/S.HYTECH INDUSTRIES, KANJIKODE EAST, PALAKKAD-678001** **FAO.No. 185 of 2013 () -----------------------** **2** **6. THOMAS SEBASTIAN, AGED 48 YEARS S/O.OUSEPH DEVASIA, OTTAPLACKAL HOUSE, THOPORA, AKATHETHARA, PALAKKAD, M/S.DAVISION RUBBER INDUSTRIES, INDUSTRIAL ESTATE OLAVAKODE, PALAKKAD-678 002.** **7. M.K.PRAKASAN, AGED 43 YEARS S/O.M.G.KRISHNANKUTTY, DWARAKA, HILL VIEW NAGAR, KANJIKODE, PALAKKAD, M/S.PESSAR INDUSTRIES, INDUSTRIAL DEVELOPMENT AREA, KANJIKODE, PALAKKAD-678001.** **8. P.RAVEENDRAN, AGED 56 YEARS S/O.KESAVAN MENON, PALAZHY, CHANDRA NAGAR, M/S.VALLIENT ENGINEERING PRIVATE LIMITED, INDUSTRIAL DEVELOPMENT AREA, KANJIKODE, PALAKKAD-678001.** **9. K.T.SAHADEVAN, AGED 45 YEARS S/O.THEYYAN, AISWARYAM, KALLINGAL, THIRUVALATHUR POST, PALAKKAD, M/S.AISWARYA ENGINEERING WORKS, CHITTUR ROAD, PALAKKAD-678001.** - **10.DAMODARAN,AGED 53 YEARS S/O.LATE V.APPU, KOTTKKAL HOUSE, MULAMKODE, KIZHAKKENCHERY, PALAKKAD, M/S.UNIVERSAL INDUSTRIES, VADAKKENCHERY, PALAKKAD-678001** - **11.SUNIL KUMAR,AGED 32 YEARS S/O.P.RAJAGOPAL, PAZHANIMALA, VAIDYALAYAM, ATHANIPARAMBU, KALLEKKULANGARA POST, PALAKKAD, M/S.GURUKRIPA CHEMICALS AND MINERALS, INDUSTRIAL ESTATE, OLAVAKODE, PALAKKAD-678001.** - **12.R.VENU, S/O.P.RAMANKUTTY, KARTHIKA, N.H.ROAD, MANAPPULLIKAVU, PALAKKAD-678001.** **R12 BY ADV. SRI.RAJESH SIVARAMANKUTTY R2,R4,R5,R6,R8 & R9 BY ADV. SRI.U.BALAGANGADHARAN** **THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 08-11-2016, ALONG WITH FAO. 186/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **A. HARIPRASAD, J. -------------------------------** ## **F.A.O.Nos.185 & 186 of 2013 ---------------------------------------------Dated this the 8[th] day of November, 2016** ## **COMMON JUDGMENT** Two applications were filed before the District Court, Palakkad, under Order 39 Rule 2A of the Code of Civil Procedure, 1908 (in short, the Code), alleging that the appellants herein have flouted the orders of the trial court, which was confirmed by the above said court in Civil Miscellaneous Appeals (CMAs), and thereby they are liable to be proceeded for dis-obedience of injunction. Respondents 1 to 3 in the proceedings before the District Court are the appellants and the petitioners and 4[th] respondent are the respondents in these appeals. 2. Heard the learned counsel for the appellants, learned counsel for the contesting respondents and also the learned counsel for the 12[th] respondent. 3. Short facts: O.S.No.279 of 2001 was filed before the Munsiff's Court, **FAO Nos.185 & 186 of 2013** **2** Palakkad for a declaratory and consequential injunction reliefs. I.A.No.1447 of 2001 was filed along the suit, seeking an order against the appellants from removing the contesting respondents, except the 12[th] respondent, from membership of the Kerala State Small Industries Association, Palakkad. Another interlocutory application, namely, I.A.No.973 of 2002 was also filed by the contesting respondents, for restraining the appellants from conducting election without intimation or notice to them, and without allowing them to participate in the election. These applications were allowed by the trial court. These matters were taken up in C.M.A. Nos.648 of 2002 and 661 of 2002. Those appeals were dismissed confirming the order passed by the trial court. Learned Additional District Judge disposed of these appeals by a common judgment dated 29.07.2002. Thereafter, two applications, alleging disobedience of injunction, were filed under Order 39 Rule 2A of the Code. It is the common allegation that after passing the order by the trial court on 09.07.2002, the appellants, willfully disobeyed the order and **FAO Nos.185 & 186 of 2013** **3** conducted election on 31.07.2002. It is pertinent to note that when these applications under Order 39 Rule 2A were pending consideration, the suit was decreed on 15.03.2003. An appeal from the decree was taken to the District Court, Palakkad as A.S.No.123 of 2003, which was also disposed of on 12.08.2008, partly modifying the decree passed by the trial court. However, the applications under Order 39 Rule 2A of the Code, though filed on 10.09.2002, were considered and disposed only on 09.04.2013. In the interregnum, the suit and the appeal were disposed of. 4. It is alleged that in defiance of the orders passed on I.A.Nos. 1447 of 2001 and 973 of 2002, the appellants conducted an election without affording opportunity to the contesting respondents to participate in it. 5. The appellants filed counter statements contending that they have not violated the orders of temporary injunction and they never showed any disrespect to the orders. The orders in the injunction petitions were pronounced on 09.07.2002. On 10.07.2002, they tendered notice of election **FAO Nos.185 & 186 of 2013** **4** to the contesting respondents, which they refused to accept. If they had received the notice, they could have participated in the election held on 31.07.2002. Thereafter, the appellants sent due notice to the contesting respondents by speed post as well as by telegram. It is their definite stand that they have not willfully disobeyed the orders of the court. The appellants have a contention that the contesting respondents lost their membership by defaulting the terms and conditions stipulated in Ext.B9 Bye-law. However, in compliance with the directions of the trial court, they attempted to serve notice of election on the contesting respondents, which could not be materialized on account of their recalcitrant attitude. It is therefore contended by the learned counsel for the appellants that they are not liable to be proceeded under Order 39 Rule 2A of the Code. 6. Learned counsel for the appellants further contended that the proceedings under Order 39 Rule 2A of the Code cannot be initiated or proceeded with, after disposal of the suit. It is an admitted fact that pending the **FAO Nos.185 & 186 of 2013** **5** applications, the suit as well as the appeal were disposed of. It is therefore contended that the temporary injunction orders got themselves merged in the decree passed in the suit and they cannot outlive the decree. Viewing from that angle, it is contended that the petitions had become infructuous. Another contention of the learned counsel for the appellants is that if at all anything to be done in this matter, it is only the execution of the decree by invoking Order 21 Rule 32 of the Code. 7. Yet another contention raised by the learned counsel for the appellants is that the court below, as the first appellate court, has no jurisdiction to entertain an application under Order 39 Rule 2A of the Code. The original order was passed by the Munsiff's Court, Palakkad and even if anybody was having a grievance that the order of the trial court was disobeyed, he should have approached the court of first instance and not the appellate court. 8. All these contentions are strongly opposed by the learned counsel for the contesting respondents. **FAO Nos.185 & 186 of 2013** **6** 9. Learned counsel for the appellants placed reliance on **Vasu v. Thankamma [1981 KLT 248]** to argue that there is considerable difference between detention and imprisonment. A person allegedly disobeyed the prohibitory orders passed by a court cannot be imprisoned, and the purpose of detention is only to see that he is obeying the orders. The principles in **Vasu's case** lost its significance by the apex Court's pronouncement of law in **Tayabbhai M.Bagasarwalla v. Hind Rubber Industries Pvt. Ltd. [AIR 1997 SC 1240]** . The ratio in the decision stated in paragraphs 14 and 16 is that an interim order of injunction passed in a suit, which is communicated to the party has to be obeyed, even though ultimately the civil court was found to have no jurisdiction to entertain the suit. The Supreme Court is of the view that a defendant contumaciously violating the order of injunction can be punished. The principles enunciated by the Supreme Court in **Tayyabbhai's case** goes against the view taken by a learned Single Judge in **Vasu's case** . **FAO Nos.185 & 186 of 2013** **7** 10. Contention raised by the learned counsel for the appellants, that subsequent to the disposal of the suit and appeal thereon, the action under Order 39 Rule 2A of the Code will not survive, is also not acceptable. It is a settled proposition that the proceedings under Order 39 Rule 2A of the Code is an independent proceedings and it has no nexus with ultimate outcome of the suit. This principle is fortified by the decision of the Supreme Court in **Tayyabbhai's case (supra)** . That apart, a learned single Judge of this Court in **Krishnan v. Joseph Desouza [1985 KLT 1010]** has taken a similar view: “5. The point urged by Mr.Sugunapalan, counsel for the appellant is that the later disposal of the appeal is no ground whatever for not dealing with and discussing the serious complaint voiced in I.A.No.160 of 1985. This contention is fully justified. The legal position is well established. The Privy Council made the position clear in Eastern Trust Company v. Mekenzis Menn & Co. Ltd, A.I.R. 1915 P.C. 106, when it observed at page 110: “An injunction, although subsequently discharged because **FAO Nos.185 & 186 of 2013** **8** the plaintiff's case failed, must be obeyed while it lasts;......... If there is a disobedience of the order of injunction, the aggrieved party can seek reliefs by invoking the inherent power of the court under S.151 of the Civil Procedure Code. (See Magna v. Rustam, AIR 1963 Rajasthan 3). The court is concerned only with the question whether there was a disobedience of the order of injunction and not with the ultimate decision in the matter. (See Gobinda v.Chakradhara, A.I.R. 1971 Orissa 10). Therefore, the contention of the appellants that subsequent to the disposal of the suit, violation of temporary injunction cannot be considered, as the order merges with the decree, is unacceptable. 11. Another contention raised by the appellants is regarding the jurisdiction of the lower appellate court to entertain such an application. Learned counsel for the contesting respondents, relying on **Dinesh v. Pioneer Shopping Complex (P) Ltd [2002(1) KLT 35],** contended that even this Court has the requisite jurisdiction to entertain applications under Order 39 Rule 2A of Code and has power **FAO Nos.185 & 186 of 2013** **9** to punish any violation of an order of a subordinate court just like that of its own order. In the decision, power of the appellate court was also considered. The principles enunciated by the Division Bench in **Dinesh's case** would justify the action of the lower appellate court in entertaining the petitioners under Order 39 Rule 2A of the Code. There is no legal infirmity in the proceedings before the lower appellate court. 12. Learned counsel for the appellants, relying on the facts, contended that, the court below went wrong in imposing punishment on them. It is seen from the testimony of PW-1 himself that a notice of election was tendered to the contesting respondents on 10.07.2002 which was refused for the reason that the tender of notice was not in compliance with the provisions in Ext.B9 Bye-law. The factum of tender of notice is admitted. It is also seen that thereafter, the appellants issued notices to the contesting respondents by speed post as well as by telegram. It is true that some of the notices reached them after 31.07.2002, the date on which the **FAO Nos.185 & 186 of 2013** **10** election was held at the aegis of the 12[th] respondent. Learned counsel for the appellants contended that, on 26.06.2002, the general body of the association resolved to conduct biennial election on 31.07.2002. The general body itself, on the said date, appointed the 4[th] respondent before the lower court (12[th] respondent in this proceedings) as returning officer. He is not a member of the association and he is a stranger. It is the submission of the learned counsel for the appellants that after declaring the election, the erstwhile office bearers were only having the responsibility to felicitate the election. In other words, after the returning officer was appointed, he took over the election process and the appellants had no direct role in the conduct of the election. Still, they tendered notices to the contesting respondents as the trial court directed to include them in the election process. Ext.A5 is the order passed by the trial court which directed to give intimation to the contesting respondents regarding the election. 13. Learned counsel for the contesting respondents contended that they were legitimately entitled to refuse notice **FAO Nos.185 & 186 of 2013** **11** as the tender of notice was in contravention of the provisions in Ext.B9 Bye-law. The fact that notices were tendered to the contesting respondents is not disputed. However, whether that was in compliance with the provisions of the Bye-law or not, is a matter to be decided in appropriate proceedings. In a petition where disobedience of injunction is alleged, such considerations are extraneous. What is to be decided in such proceedings is whether the persons against whom the orders were passed by the court were guilty of disobedience or breach of the terms of the order willfully. 14. A learned Single Judge of this Court in **Padmanabhan v. Narayanan [1987 (2) KLT 260]** held as follows: “A judgment-debtor cannot be confronted with the drastic action of depriving him of his personal liberty on the mere finding that the decree is violated or disobeyed. Only when there is wilful failure the court gets jurisdiction to take the extreme action. Mere inadvertent, casual or accidental omission or violation is not what is envisaged under O.21 R.32(1). Some mental element, though it may not be the same as **FAO Nos.185 & 186 of 2013** **12** mens rea in the matter of disobedience must be there. The judgment-debtor can have a variety of explanations for what appears to be an apparent violation or disobedience. Violations for which there can be reasonable or plausible explanations of absence of wilful mind cannot be visited with the serious penal consequences. All the attendant circumstances coupled with the explanation of the judgment-debtor will have to enter the judicial mind before giving the verdict that the action or omission of the wrong doer is an invasion into the authority and dignity of the court, willfully made. It is considered more akin to contempt of the authority of the court than as a private grievance of the decreeholder and the object is to bring the judgment-debtor to the authority of the court by making him obey the decree. That is because such decrees may not be capable of execution and enforcement by any other method and decrees and orders of courts will have to be enforced in the interest of society and individual also. The word 'wilful' according to dictionary meaning imports a deliberate or voluntary or intentional act. Therefore it must be an act of an intentional mind which was conscious of the prohibition and to bear in mind that the object of the rule is to enforce injunctions contained in the decrees or orders and not to punish a party guilty of **FAO Nos.185 & 186 of 2013** **13** disobedience. Resort cannot, therefore, be had to the rule for the purpose of punishing a person for breach of an injunction. In a contempt matter what is involved is punishment while in the present case it is only enforcement of the decree and the detention is in civil prison and that too only for enforcing the decree and not for anything else. But a casual or accidental or unintentional disobedience to an order of the court is not enough to justify either sequestration or committal; the court must be satisfied that a contempt or disobedience or violation of the decree of court has been committed willfully in other words, that its order has been contumaciously disregarded. Then only the penal consequences could follow.” 15. Another decision relied on by the appellants is **The State of Bihar v. Rani Sonabati Kumari [AIR 1961 SC 221]** . The expression ' willful disobedience of order' was interpreted by the Supreme Court and held that when the order was ambiguous and capable of two interpretations, a party bona fide acting on his own interpretation cannot be held to be guilty of willful disobedience. It is the submission of the learned counsel for the appellants that what is directed **FAO Nos.185 & 186 of 2013** **14** by the trial court as per Ext.A5 is only to give notice to the contesting respondents and the manner in which notice had to be given was not specified. In other words, there was no direction in the order passed by the trial court as per Ext.A5 to give notice as specified in Ext.B9 Bye-law. It is therefore contended that the appellants have attempted to tender notice directly to the contesting respondents, which they refused, alleging violation of the conditions in Ext.B9, which was not contemplated by Ext.A5 order. Therefore, I am of the view that the court below erred in holding on facts that the appellants were guilty of a contumacious conduct and they deliberately violated the orders of injunction. Therefore, the finding that they are liable to be proceeded under Order 39 Rule 2A of the Code, is unsustainable on appreciation of the facts. 16. Learned counsel for the 12[th] respondent contended that there are some uncharitable observations against him which appears to be out of context in the light of the facts and circumstances. The 12[th] respondent is the returning officer **FAO Nos.185 & 186 of 2013** **15** appointed by the general body. His duty was to conduct the election as provided in the Bye-law. He is not a party to the suit. Therefore, he cannot be blamed for the lapses, if any, on the part of the parties. In the result, the appeals are allowed. The impugned orders are set aside. No costs. All pending interlocutory applications will stand dismissed. JV SD/- **A. HARIPRASAD JUDGE**