Defendants 2 to 4 in O.S 1085 of 1992, on the file of Principal District Munsif's Court at Nagercoil, are the petitioners herein.

2. Respondent/plaintiff filed a suit as O.S 617 of 1991, on the file of the District Munsif's Court, Padmanabhapuram, for partition, which was transferred to Nagercoil and renumbered as O.S 1085 of 1992. Pending litigation, respondent herein filed I.A 1364 of 1991 and prayed for an interim injunction restraining the petitioners herein from demolishing an old building in the property which was the subject matter of the suit, and also from proceeding with any construction. An interim injunction was granted on 21.8.1991 and the order was also confirmed on 4.9.1991, though ex parte.

3. Petitioners herein filed I.A 1712 of 1991 to set aside the ex parte order of injunction and the said petition was allowed by order dated 10.11.1993 The injunction application already filed by plaintiff was renumbered as I A. 172 of 1993.

4. A preliminary decree was passed in the suit, and the matter is now pending in appeal. In the meanwhile, the plaintiff also filed an application to initiate contempt proceedings as well as an application under Order 39, Rule 2-A, C.P.C The trial Court, after passing a preliminary decree, posted these applications for evidence. At that time, petitioners herein moved Applications stating that no order could be passed on those Interlocutory Applications since the Court has become functus officio, and also for the reason that the order confirming the injunction was set aside by a subsequent order dated 10.11.1993 The contention was that there was no order to be implemented and, therefore, the proceedings cannot be continued. He wanted the matter to be heard and decided as a preliminary issue

5. By the impugned order, the Court below dismissed it, and the same is challenged in this Revision.

6. At the time when the matter came for admission, since caveat had been filed and the respondent had entered appearance through Court, the entire Revision was heard on merits, for final disposal.

7. Learned counsel for petitioner submitted that under Order 39, Rule 2-A, C.P.C, the interim order must be in force when the same is sought to be implemented and also when proceedings are initiated allegedly for violating that order. In this case, a decree has been passed and, therefore, everything merges in that decree. Again, it is submitted that the final order on the injunction application has been set aside, and the injunction petition is pending consideration. Therefore, the procedure adopted by the lower Court in posting the I.A after passing the decree, is not without jurisdiction. Learned counsel for petitioner relied on the decision reported in AIR 1985 Punjab & Haryana 299 (Rachpal Singh v. Gurdarshan Singh) with particular reference to paragraph 4 and last portion of paragraph 5. They read thus: —

“Sub-rule (1) of R. 2A provides that in the case of disobedience of any injunction granted under R. 1 or R. 2 or breach of any of its terms on which the injunction was granted or order made, the Court may order the property of the person guilty of such indiscipline or breach to be attached and may also order such person to be retained in the civil prison for a term not exceeding three months, unless in the meantime the Court directs his release. Sub-rule (2) lays down that no attachment made under the said rule shall remain in force for more than one year at the end of which time, if the disobedience of breach continues, the property attached may be sold and out of the proceeds, the Court may award such compensation as it thinks fit to the injured party and shall pay the balance, if any, to the party entitled thereto. From the combined reading of the provisions of these two sub-rules, it appears that their purpose is the enforcement of the injunction and not the punishment for its disobedience. From the phraseology used in the said Rule, it is further evidenced that detention in the civil prison and attachment of the property are to continue for a specified period and that too only during the continuance of the disobedience or the breach. In the case of detention in the civil prison, the Court is empowered to release the person guilty of disobedience or breach discontinues. Similarly, attachment of the property cannot remain in force for more than one year and has to be withdrawn if any time prior thereto the disobedience discontinues. It would not be possible for the Court to order the sale of property if the disobedience or breach comes to an end prior to the period of one year. Similar are the provisions contained in R. 32 of 6.21 which relates to the enforcement of a decree for permanent injunction. It cannot be disputed that the measures contained in R. 32 are intended only to enforce the decree and not for awarding any punishment to the judgment-debtor for its disobedience. The conclusion, therefore, appears to be irresistible that the provisions of R. 2-A are meant for enforcing an interim injunction and not for punishing the person guilty of such disobedience. We are fortified in our view from the following observations of the Supreme Court in Rani Sonabati Kumari's case (AIR 1961 S.C 221) (supra):

“Though undoubtedly proceedings under Order 39, Rule 2(3) Civil Procedure Code, have a punitive aspect as is evident from the contemner being liable to be ordered to be detained in civil prison, they are in substance designed to effect the enforcement of or to execute the order. This is clearly brought out by their identity with the procedure prescribed by the Civil Procedure Code for the execution of a decree for a permanent injunction. Order 21, R. 32 sets out the method by which such decree could be executed and C1.(1) enacts where the party against whom a decree for an injunction has been passed, has had an opportunity for obeying the decree and has wilfully failed to obey it, the decree may be enforced, in the case of a decree for an injunction by his detention in the civil prison, or by the attachment of his property or by both Cls. 2 and 3 of this rule practically reproduce the terms of clauses 4 and 3 respectively of 0.39, R. 2, and the provisions leave no room for doubt that the 0.39, R. 2(3) is in essence only the mode for the enforcement of effectuation of an order of injunction.”

“Once it is held that the provisions of R. 2-A are not meant to punish the person guilty of disobedience and instead their purpose in substance is only to enforce an injunction, the answer to the question involved has to be that no intimation or continuation of the proceedings under the aforementioned rule would be competent after the ad interim injunction has been vacated”. (Para 4)

The relevant portion of para 5 reads thus: —

“… We fully endorse this view and hold that no proceedings can be initiated or action taken under Rule 2-A against a person guilty of disobedience or breach of ad interim injunction after it has been vacated. Nothing said hereinbefore, however, would debar the taking or proceedings under the Contempt of Courts Act in spite of the vacation of the ad interim injunction against the person guilty of its breach during the period it remains in force.”

I do not think the said statement of law is correct in view of the recent decision of the Supreme Court reported in (1997) 3 S.C.C 443 = AIR 1997 S.C 1240 (Tayabbhai M. Bagasarwalls v. Hind Rubber Industries Pvt. Ltd.) wherein the plaintiff filed a suit and obtained an order of injunction. As per Section 9-A as inserted by Maharashtra Amendment Act 65 of 1977, to the Civil Procedure Code, the objection as to jurisdiction of Court to entertain a suit has to be decided as a preliminary issue. An interim order was granted and that was in force. Subsequently, on the question of jurisdiction, trial Court held that it has jurisdiction, and the matter was taken in Appeal. When the matter was taken to the High Court, it held that the Court in which the suit was instituted, has no jurisdiction. That became final. In the meanwhile, for alleged violation of the interim injunction, plaintiff wanted to initiate proceedings both for contempt and also under Order 39, Rule 2-A, C.P.C A similar objection was raised and the same was accepted by the High Court. When the matter was taken before the Supreme Court, their Lordships set aside the order and held that Court has jurisdiction to initiate proceedings, even though the interim order might have come to an end, when it was found that the Court has no jurisdiction. After extracting Section 9-A of C.P.C as inserted by the Maharashtra Amendment Act, their Lordships held in Paragraphs 16 to 24 thus: —

“According to this Section, if an objection is raised to the jurisdiction of the Court at the hearing of an application for grant of, or for vacating, interim relief, the Court should determine that issue in the first instance as a preliminary issue before granting or setting aside the relief already granted. An application raising objection to the jurisdiction to the Court is directed to be heard with all expedition. Sub-rule (2), however, says that the command in Sub-rule (1) does not preclude the Court from granting such interim relief as it may consider necessary pending the decision on the question of jurisdiction. In our opinion, the provision merely states the obvious. It makes explicit what is implicit in law. Just because an objection to the jurisdiction is raised, the Court does not become helpless forthwith - nor does it become incompetent to grant the interim relief. It can. At the same time, it should also decide the objection to jurisdiction at the earliest possible moment. This is the general principle and this is what Section 9-A reiterates. Take this very case. The plaintiff asked for temporary injunction. An ad-interim injunction was granted. Then the defendants came forward objecting to the grant of injunction and also raising an objection to the jurisdiction of the Court. The Court overruled the objection as to jurisdiction and made the interim injunction absolute. The defendants filed an appeal against the decision on the question of jurisdiction. While that appeal was pending, several other interim orders were passed by the Civil Court as well as by the High Court. Ultimately, no doubt, the High Court has found that the Civil Court had no jurisdiction to entertain the suit but all this took about six years. Can it be said that orders passed by the Civil Court and the High Court during this period of six years were all non est and that it is open to the defendants to flout them merrily, without fear of any consequence. Admittedly, this could not be done until the High Court's decision on the question of jurisdiction. The question is whether the said decision of the High Court means that no person can be punished for flouting or disobeying the interim/interlocutory orders while they were in force, i.e, for violations and disobedience committed prior to the decision of the High Court on the question of jurisdiction. Holding that by virtue of the said decision of the High Court (on the question of jurisdiction), no one can be punished thereafter for disbedience or violation of the interim orders committed prior to the said decision of the High Court, would indeed be subversive of the Rule of Law and would seriously erode the dignity and the authority of the Courts. We must repeat that this is not even a case where a suit was filed in the wrong Court knowingly or only with a view to snatch an interim order. As pointed out hereinabove, the suit was filed in the Civil Court bona fide. We are of the opinion that in such a case the defendants cannot escape the consequences of their disobedience and violation of the interim injunction committed by them prior to the High Court's decision on the question of jurisdiction.

In Shiv Chander Kappoor v. Amar Bose, J.S Verma, J. Speaking for a three-Judge Bench observed thus, with reference to the statement of law at pp. 351-53 of Wade's Administrative Law (6th Edn.): S.C.C p. 247. para 23)

“'Void’ is meaningless in an absolute sense: and ‘unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders’. In the words of Lord Dilock, ‘the order would be presumed to be valid unless the presumption was rebutted in competent legal proceedings by a party entitled to sue”

To the same effect is the opinion of Jagannatha Shetty, J. in State of Punjab v. Gurdev Singh (S.C.C p. 6, paras 7-9).

“If an Act is void or ultra vires it is enough for the Court to declare it so and it collapses automatically. It need not be set aside. The aggrieved party can simply seek a declaration that it is void and not binding upon him. A declaration merely declares the existing state of affairs and does not ‘quash’ so as to produce a new state of affairs.

But nonetheless the impugned dismissal order has at least de facto operation unless and until it is declared to be void or nullity by a competent body or Court. In Smith v. East Elloe Rural District Council (A.C.C at p. 769: All ER at p. 871) Lord Radcliffe observed:

“'An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity on its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders”.

Apropos to this principle, Prof. Wade states: (See Wade: Administrative Law, 6th Edn., p. 352) ‘the principle must be equally true even where the “brand” of invalidity’ is plainly visible: for there also the order can effectively be resisted in law only by obtaining the decision of the Court. Prof. Wade sums up these principles: (Ibid)

“'The truth of the matter is that the Court will invalidate an order only if the right remedy is sought by the right person in the right ‘proceedings and circumstances. The order may be hypothetically a nullity, but the Court may refuse to quash it because of the plaintiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case, the “void” order remains effective and is, in reality, valid. It follows that an order may be void for one purpose and valid for another; and that it may be void against one person but valid against another’.”

We may also refer to yet another decision of this Court in Ravi S. Naik v. Union of India (S.C.C at p. 662). S.C Agarwal, J. speaking for the Division Bench observed (S.C.C p. 662, para 40)

In the absence of an authoritative pronouncement by this Court, the stay order passed by the High Court could not be ignored by the Speaker on the view that his order could not be a subject matter of Court proceedings and his decision was final. It is settled law that an order, even though interim in nature, is binding till it is set aside by a competent Court and it cannot be ignored on the ground that the Court which passed the order had no jurisdiction to pass the same. Moreover the stay order was passed by the High Court which is superior Court of Record and ‘in the case of a superior Court of Record, it is for the Court to consider whether any matter falls within its jurisdiction or not. Unlike a Court of limited jurisdiction, the Superior Court is entitled to determine for itself questions about its own jurisdiction. See: Special Reference No. 1 of 1964 (Keshav Singh, Re): (Mulraj v. Murti Raghonathji Maharaj)”.

The Allahabad and Madras High Courts have also taken the same view. In State of V.P v. Raten Shukla, the Allahabad High Court observed:

The fact that Shri S.M Ibrahim had no jurisdiction to hear the appeals, however, does not mean that no contempt could be committed of him. So long as he was seized of the appeals, no contempt could be committed of him.

It is not the Law that a Court dealing with a matter which is beyond its jurisdiction can be contemned with impunity or that the liability of a person to be punished for contempt of a Court depends upon whether the Court was acting within its jurisdiction at the time when it is alleged to have been contemned. The opposite party, therefore, cannot claim that he is not guilty of contempt because Shri S.M Ibrahim had no jurisdiction to decide the appeals.”

In Nallah Senapathi Sarkarai Manradiar v. Ambal Mills P. Ltd. similar view has been expressed - without of course deciding the question finally. Quoting Oswald on Contempt (1910 Edn. at p. 106), the Court observed: “An order irregularly obtained cannot be treatedd as a nullity, but must be implicitly obeyed, until, by a proper application, it is discharged.”

In D.M Samyils v. Commr. Corpn. of City of Bangalore the Karnataka High Court stated the law in the following terms, with reference to the decision of the Court of Appeal in Hadkinson v. Hadkinson:

The principle laid down in the said decision is, a party who knows an order, whether it is null or valid, regular or irregular, cannot be permitted to disobey it and it would be dangerous to allow the party to decide as to whether an order was null or valid or whether it was regular or irregular.”

In Hadkinson v. Hadkinson the Court of Appeal held:

It is the plain and unqualified obligation of every person against, or in respect of whom an order is made by a Court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an Order believes it to be irregular or even void. Lord Cottenham, L.C, said in Chuck v. Cremer (at page 342):

A party, who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it. It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null or valid - whether it was regular or irregular. That they should come to the Court and not take upon themselves to determine such a question. That the course of a party knowing of an order, which was null or irreggular, and who might be affected by it, was plain. He should apply to the Court that it might be discharged. As long as it existed it must not be disobeyed.

Such being the nature of this obligation, two consequences will, in general follow from its breach. The first is that any one who disobeys an order of the Court (and I am not now considering disobedience of orders relating merely to matters of procedure) is in contempt and may be punished by committal or attachment or otherwise. The second is that no application to the Court by such a person will be entertained until he has purged himself of his contempt.”

In United States of America v. John P. Shipp, the following statement by Holmes, J. occurs:

“It has been held, it is true, that orders made by a Court having no jurisdiction to make them may be disregarded without liability to process for contempt. Re Sawyer, Exp. Risk, Exp. Rowland. But even if the circuit Court had no jurisdiction to entertain Johnson's petition, and if this Court had no jurisdiction of the appeal, this Court, and this Court alone, could decide that such was the law. It and it alone necessarilyy had jurisdiction to decide whether the case was properly before it. On that question, at least, it was its duty to permit argument, and to take the time required for such consideration as it might need. See Mansfield. C A L.M.R Co. v. Swan, US at p. 387, L Ed. at p. 465. Until its judgment declining jurisdiction should be announced, it had authority, from the necessity of the case, to make orders to preserve the existing conditions and the subject of the petition, just as the State Court was bound to refrain from further proceedings until the same time. Rev. Stat 766: Act of March 3; 1893, chap. 226, 27 stat at L. 751, U.S Comp. Stat 1901, p. 597.”

The decision in Shipp has been followed in several later decisions of the American Supreme Court”

In paragraph 27 of the above said decision, their Lordships also met the argument of the learned counsel that a proceeding under Order 39, Rule 2-A, C.P.C is a coercive process to secure obedience of the injunction, and when once it is found that the Court has no jurisdiction, the question of securing the obedience to its order any further will not arise. The argument was that enforcing the interim order after it is found that the Court had no jurisdiction to try the said suit would not only be unjust and illegal but would also reflect adversely upon the dignity and authority of the Court This argument was also rejected by their Lordships by stating thus: —

“… The orders made were within the jurisdiction of the Civil Court and once this is so, they have to be obeyed and implemented. It is not as if the defendants are being sought to be punished for violations committed after the decision of the High Court on the question of jurisdiction of the Civil Court Here the defendants are sought to be punished for the disobedience and violation of the order of injunction committed before the decision of the High Court in Vishanji Virje Mepani According to Section 9-A, the Civil Court and the High Court did have the power to pass interim orders until that decision. If they had the power they must also have the power to enforce them. In the light of the said provision, it cannot also be held that those orders could be enforced only till the said decision but not thereafter. The said decision does not render them (the interim orders meanwhile) either no nest or without jurisdiction…”

Their Lordship further went on and said that the punishment imposed on the defendants for violation of the said orders committed before the said decision (Vishanji Virji Mepani) does not amount, in any event, to enforcing them after the said decision. Only the orders are being passed now. The violations are those committed before the said decision’. In this case, even before the ex parte order was passed in November 1993, the Commissioner visited the property and reported that there is a change after the order of injunction. It was thereafter the ex parte order was set aside. The injunction petition is also still pending. A preliminary decree alone has been passed, and the suit is pending before the very some Court. When the Supreme Court has held that even in respect of a Court which has no jurisdiction where an interim order was passed, that order will remain valid till the Court enters a finding regarding jurisdiction or till the interim order is vacated. A violation in between is illegal, and the Court which passed the order will have jurisdiction to proceed with the same. In this case, plaintiffs are in a better position. The Court has jurisdiction when an interim order was passed, and when the order was in force, the alleged violation is said to have been committed. I am not going into the merits of the case since that is a matter which the Court below has to consider oh taking evidence. I am concerned only about the jurisdiction of the Court below to proceed with the matter. The decision of the Punjab and Haryana High Court (cited supra), relied on by learned counsel for petitioner, is no longer good law in view of tthe subsequent decision of the Supreme Court (supra). Consequently the Civil Revision Petition is dismissed. The connected CMP for stay is also dismissed. No costs.

RR/VCS