Devi Prasad Singh, J.:-
[Order On CMA No.220 of 2000]
[Under Order 39 Rule 2-A CPC On behalf of the Applicant/Appellant/Plaintiff]
This is an application in the instant pending First Appeal under the Order XXXIX Rule 2-A of CPC., filed by the plaintiff appellant.
2. The plaintiff appellant filed a Regular Suit No.43/1993 against the defendant respondents for possession, recovery and damages. According to plaintiff appellant, the appellant has been the tenant of the disputed land marked as A B C D E in the site plan filed with the plaint. The area of the disputed land comes to 877.30 metres (9395 sq. ft.). The appellant a mechanic, possesses a motor repairing garage in the suit property. The original owner of the property in question undisputedly, was defendant respondent Begum Syeeda Wazahat Hussain, widow of late Wazahat Hussain. It was earlier marked as Bungalow No.10, Neil Road, Lucknow re-numbered as 128/22/4-Ka, China Bazar Gate, Hazratganj Ward, Lucknow and known as Neil Wali Kothi. According to appellant plaintiff, he acquired tenancy right from erstwhile owner Chaudharain Suraiya Khatoon and Smt. Rasheeda Khatoon. Begum Syeeda Wazahat Hussain purchased property in the year 1961 from the erstwhile owner. It was on 17.11.1961, the appellant plaintiff was informed that he should pay rent of the premises from August, 1961 to Begum Syeeda Wazahat Hussain whom according to plaintiff, he paid rent at the rate of Rs.100/- upto December, 1982. However, after December, 1982, Begum Wazahat Hussain declined to accept rent hence plaintiff sent rent by money order and later on, filed Suit under Section 30 of U.P. Rent Control Act, 1972 (U.P. Act No.13 of 1972) in the Court of Munsif South, Lucknow and deposited the rent in Case No.198/1983. According to plaintiff, he continuously deposited rent in the Court. Begum Wazahat Hussain died on 1.11.1983, leaving her legal heirs impleaded in the suit. It is stated that plaintiff's motor workshop was registered as M/s. Prem Motor Works with electricity and water connection. The firm came into existence on 1.4.1955. Being a registered garage/workshop, it was inspected by Transport Department from time to time. There is also telephone connection in the name of plaintiff. The plaintiff uses to repair the vehicles of Allahabad High Court, Lucknow Bench Lucknow, 35 PAC Battalion, Industry Department and other different Government departments. The defendant respondent No.2 tried to evict the appellant plaintiff from the premises on 11.8.1982. When the plaintiff appellant declined to yield to the pressure of defendant respondent No.2, his son was arrested in a false criminal case. While his son was in Jail he was forcibly evicted on 29.8.1992 from anti-social elements. The plaintiff appellant claimed compensation to the tune of Rs.542819/- from the defendant respondents along with possession over the same and cause of action has been shown to arose on 29.8.1992 when he was forcibly evicted from the rented portion of the premises.
3. On the other hand, defendant respondents refuted the allegation of the plaintiff appellant and stated that they had purchased the premises in the year 1992. Defendant respondent No.2 stated that he had deposited an amount of Rs.1683782/- to make the land freehold and converted the use of land for commercial purpose, constructed hotel "Gemini Continental" on a sanctioned plan.
4. Trial Court framed necessary relevant issues and by judgment and order dated 5.11.1999, dismissed the suit. While dismissing the suit, the Trial Court allowed the counter claim of the defendant respondent No.3. Feeling aggrieved, the plaintiff appellant filed instant first appeal keeping in view the factual position on record to the effect that plaintiff appellant has been in possession of land in dispute since 1955.
5. Overwhelming evidence on record reveals that M/s. Prem Motor Works was registered on 1.4.1955 and there has been a workshop for repairing of vehicles not only of the Government departments but also of the High Court. While admitting the appeal, the Division bench of this court had granted an injunction on 23.12.1999. The order dated 23.12.1999 passed by this Court, is reproduced as under:-
"Hon'ble R.H. Zaidi, J.
Hon'ble Bhanwar Singh, J.
Heard.
Admittedly during pendency of the Suit in the Court below, the injunction order whereby parties were directed to maintain status quo remained operative.
In para-2 of the affidavit filed in support of the application for interim relief, it has been stated as under:
"That the appellant is the tenant of a part of the premises No.2 (Municipal No.128/22/Ka, near China Bazar Gate, Ward Hazratganj) Lucknow previously known as Kothi No.10, Neil Road, Lucknow. The boundaries of the said premises are as below:
East : China Bazar road;
West : Building of T.V. Engineering College previously known as Topwali Kothi;
North : Building owned by late Begum Wzazahat Hussain and thereafter Rani Lakshmi Bai Marg;
South : Kothi of Dr. Nigam.
In view of the aforesaid facts, it is hereby directed that in the meanwhile the parties shall maintain status quo with regard to aforesaid property as on today.
In view of the dispute regarding the identify of the property in dispute, as agreed upon between the learned counsel for the parties, Mr. Anil Tewari, Advocate, is appointed as Commissioner, who shall make a local inspection of the property in dispute and specify the property involved in the suit particularly the property which is claimed by the appellant.
Mr. Tewari will get his fee which is quantified at Rs.10,000/-. The same shall be borne half and half by the parties.
The appellant is permitted to file supplementary affidavit annexing therewith the relevant documents which are already on record of the case.
Dt.23.12.99 sig. Illegible
LN/-"
6. In pursuance of the order dated 23.12.1999, parties were supposed to maintain status quo without raising any construction over the area measuring 9000 sq. ft. and odd (supra) i.e., the disputed land in suit. It appears that in pursuance of the order dated 23.12.1999, The Commissioner appointed by this Court Sri A. K. Tewari submitted report dated 13.5.2000. While submitting the report, the Court Commissioner Sri A.K. Tewari noted that length of Southern boundary wall is 31.0 metres, in Southern Eastern corner there is s tin shed. The Court Commissioner Sri A.K. Tewari noted the statements of Mr. Prashant Chandra, Advocate and Mr. N. K. Seth. In his report after perusal of documents filed by the parties, the Court Commissioner Sri A.K. Tewari made the following observations:-
"Therefore, on perusing the documents produced on behalf of both the parties and after side inspection the picture emerges as under:-
(i) The land I n dispute, claimed by appellant is shown in red and demarcated with letter A B C D E, over which portion of incomplete multi storeyed building exists, marked as M N O P.
(ii) Five temporary lavatories are situated over the land in dispute, at the middle of Southern wall.
(iii) Temporary water tank is situated near to Southern Western corner of the land in dispute.
(iv) And a newly constructed tin shaded generator room exists in the Southern-Eastern corner of the land in dispute, in which the generator has been installed; and through which electricity to entire premises is being supplied.
Lucknow:Dated:
May 13, 2000 (A.K. Tewari)
Advocate
Advocate Commissioner"
7. It appears that after receipt of Commissioner's report and after going through the record, a Division Bench of this Court, by an order dated 11.3.2005, emphasised for amicable settlement of dispute and expected that parties shall move application under Order 23 Rule 3 of CPC after due settlement of dispute outside the Court and hearing of the present application was deferred. In spite of aforesaid order passed by the Division Bench, parties failed to settled their dispute outside the Court. After considering rival submissions, by an order dated 16.5.2011, this Court appointed Sri J.P. Mathur and Sri Dhirendra Singh Advocate to visit the spot and submit another report. In pursuance thereof, Sri J.P. Mathur had submitted another report after making inspection visiting place in presence of parties counsel. Both the Commissioners appointed by this Court while submitting report had also gone through the earlier report submitted by Sri A.K. Tewari after inspecting the property in dispute on 21.5.2011. The twin Commissioners found that incomplete constructions noted by Sri A.K. Tewari, the earlier Court Commissioner, has now been completed and finished. Entire infrastructure has been finished and used to run the Hotel. The relevant portion of the observations made by the Commissioners appointed by this Court in their report dated 21.5.2011, is reproduced as under:-
"That we both the appointed Commissioner visited spot on 21.5.2011 and conducted the inspection in presence of parties, their counsels and prepared the site plan, noted the alleged changes made by the respondents after the inspection carried out by Sri A.K. Tewari, Senior Advocate on 2.2.2000, who in his report, referring the sketch plan annexed with the report, pointed out the nature of construction found on the date of inspection by him, which as under:-
(i) The land in dispute, claimed by appellant is shown in read and demarcated with letter A, B, C, D & E over which portion of incomplete multistoried building exists, marked as M, N, O & P.
(ii) Five temporary lavatories are situated over the land in dispute, at the middle of Southern wall.
(iii) Temporary water tank is situated near to Southern Western corner of the land in dispute.
(iv) And a newly constructed tin shaded generator room exists in the Southern-Eastern corner of the land in dispute, in which the generator has been installed; and through which electricity to entire premises is being supplied.
The map prepared and annexed with the report by Sri A.K. Tewari, Senior Advocate is also annexed with this report as Annexure No.R-1.
We have with the help of the parties, their counsel inspected the property shown as A B C D E in the map prepared by Sri A.K. Tewari, Senior Advocate and also prepared the sketch plan after inspection on 21.5.2011 with the consent of the parties and the counsel the photographs of the said portion allegedly disputed were also taken by the photographer, who has been paid for the said services by sharing by the parties.
As directed by the Hon'ble Court we found that the disputed portion over the land in dispute is almost complete and finished which was earlier found to be incomplete and the alleged five lavatories have almost finished, and 8 small rooms have been constructed on southern wall out of which one room is being used as toilet allegedly by the staff of the Hotel, other four rooms are being used for storing vegetable etc. whereas two Kothri having no tin shed over the same said to be used for storage of diesel etc. and for passage connecting the a adjoining building as inform by the respondents and allegedly in the ownership of respondent no.10. The photographs of the those Kothries are marked as P-1, P-2, P-3, P-4.
That the temporary water tank mentioned in the report of Sri A.K. Tewari, Senior Advocate is also found to be complete and finished and is in use of the Hotel.
That since at the time inspection made by Sri A.K. Tewari, Senior Advocate the generator was found to be installed in newly constructed tin shed in the Southern Eastern corner of the land in dispute the same was found duly painted and fix with shutters and a small Kothri said to be used as Time Office by the respondent no.10. Photographs thereof, is marked as P-5.
We found all the constructions in the multistory building completed and duly finished except the two Kothries those are without roofs and mentioned above, we have also taken the photographs of the entire building found finished and in use as Hotel, the photographs were also taken, from the all the side of the building and are being filed as P-6, P-7, P-8, P-9 & P-10.
We have also prepared the sketch plan of the disputed side and the disputed land in the plan is shown as A, B D in the plan and said plan filed herewith as Annexure R-2.
(J.P. Mathur)
Advocate
Advocate Commissioner
(Dhirendra Singh)
Advocate
Advocate Commissioner"
8. From the comparative study of both the Commissioners reports, there appears to be no room of doubt that in spite of injunction granted by this Court (supra), the defendant respondent continued with construction work of hotel and completed work in terms of sanctioned plan.
9. No challenge was made to the commission's reports so far it relate to raising of construction. The only challenge against these reports is of measurement of the disputed property. Hence keeping in view the nature of objection, the reports as well as the matter is being decided, the two commission reports are thus confirmed with the aforesaid observations.
10. Sri N.K. Seth, learned counsel for the plaintiff appellant submits that whatever construction has been raised it was raised in flagrant violation of injunction dated 23.12.1999 (supra). He further submits that though the Trial Court dismissed injunction application of the plaintiff appellant on 18.4.1996, but while exercising appellate power under Order 43 Rule 1 of CPC in Civil Misc. Appeal No.62/1996, the appellate court quashed the order of trial court dated 18.4.1996 and by judgment and order dated 23.9.1996, appeal was allowed and the defendants were restrained from carrying on any construction activity on the premises in suit. It was provided by the appellate court that if necessary, police assistance may be provided to ensure the implementation of injunction granted by the Court.
11. On the other hand, Sri Sandeep Dixit, learned counsel appearing for the respondents submits that area to the extent of 2400 sq. ft., possession has not been disturbed and status quo has been maintained. He submits that position is same as was existing at the time of first appeal in this Court. He further submits that plaintiff appellant does not have any right or title over the land in question and in any case, he does not possess a prima facie case to claim right, title or possession over the disputed land.
12. Much emphasis has been given by Sri Sandeep Dixit learned counsel for contesting respondents that appeal lacks merit hence, no case for interference is made out under Order 39 Rule 2-A of CPC. Argument of learned counsel seems to be misconceived. We are not at the stage of deciding the appeal on merit but we are at the stage of hearing the application under Order 39 Rule 2-A of CPC whereby it is alleged that defendant respondents had not cared with the injunction granted by this Court and completed their work. We are concerned with maintenance of majesty of law and the Rule of law which is expected in a civilized society. Howsoever high person may be, he or she shall be under law and must abide by law and Courts order.
13. Sri Sandeep Dixit asserted that only small portion of property in dispute i.e., 444 sq. ft., towards China Bazar was in the tenancy of appellant Sikander Ali. Accordingly, it was open to respondents to raise construction over other portion of the land in question. In written argument, he himself had admitted that the plaintiff claimed right, title and possession over the land referred to in the plaint with specified boundaries i.e., A B C D. He further submits that the sale-deed for the disputed area was only of 444 sq. ft. The claim of the plaintiff appellant with the specified area, is not authenticated by any authority. He also stated that construction was done in pursuance of permission granted by the L.D.A., and completed on 15.9.1996. In written argument, he submits that 2000 sq. ft. area of the land in dispute is vacant though the garage is only in 444 sq. ft.
14. The argument advanced by the learned counsel for the respondents seems to be misconceived with regard to land in suit. Admittedly, in the plaint, the land in dispute has been marked by the letters, ''A B C D', which is about 9395 sq. ft., as claimed in the plaint and borne out from the reports of the Commissioner. Since the arguments advanced by the learned counsel for the respondents Sri Sandeep Dixit relate to the merit of the case and alleged title but the land in dispute is marked by letters, A B C D', which shall be deemed to be disputed land of suit for which first appellate court and this Court had granted injunction to maintain status quo, it was not open for the respondents to raise construction for any reason whatsoever.
15. There appears to be no dispute that while filing suit, plaintiff appellant has annexed site plan showing the disputed land measuring about 9000 sq. ft. (supra). An injunction was granted during pendency of suit by the Appellate Court and this Court has also granted injunction directing the parties to maintain status quo on 23.12.1999. The Court Commissioner Sri A.K. Tewari submitted his report. The disputed portion was with semi-constructed building and during second Commission Report, it has been noticed that entire area has been built up except the area almost 2400 sq. ft., where tin shed is situated. There appears to be no room of doubt that in spite of injunction granted by this Court on 23.12.1999, the defendant respondents continued with construction work to build their Hotel named, M/s. Gemini Continental Private Limited, Lucknow.
16. Order XXXIX Rule 2-A of CPC is reproduced as under:-
"2A. Consequence of disobedience or breach of injunction.- (1) In the case of disobedience of any injunction granted or other Order made under Rule 1 or Rule 2 or breach of any of the terms on which the injunction was granted or the order made, of the Court granting the injunction or making the order, or any Court to which the suit or proceeding is transferred, may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the Court directs his release.
(2) No attachment made under this rule shall remain in force for more than one year at the end of which time, if the disobedience or 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."
17. Reliance has been placed by Sri Sandeep Dixit learned counsel for the respondents in the case reported in (1980) 2 SCC 144 Union of India and others. Vs. Satish Chandra Sharma; AIR 2003 HP 170: Sushil Mittal and another. Vs. R.D. Bhardwaj and another; (2006) 3 SCC 312 Kishore Kumar Khaitan and another. Vs. Praveen Kumar Singh.
18. The case of Satish Chandra Sharma (supra) deals with the factual controversy where the order of arrest and attachment was passed by the Court in proceeding under Order 39 Rule 2-A of CPC without indicating the name of contemner and the controversy pertaining to identify the contemner, was left over the Munsif Magistrate. Their lordships of Hon'ble Supreme Court held that without taking into account the administrative procedure which the Government requires to comply with an order passed, punishment should not have been awarded. The facts and circumstances of the case of Satish Chandra (supra) is entirely different and is not applicable to the facts and circumstances of the present case.
19. The case of Sushil Mittal (supra) also does not seem to be applicable where the Division Bench of Himanchal Pradesh High Court set aside the order on the ground that defendant has been held guilty of disobedience of injunction order without indicating in the operative portion of the order with regard to registration number of the trucks and identity of those truck against which suit was filed.
20. The case of Kishore Kumar Khaitan (supra) relates to a situation where, an order under Order 39 Rule 1 and 2 of CPC was passed at initial stage of litigation more so, when the appellate court was dealing with only limited question of ad interim injunction and main application of injunction in suit, was still pending before the trial court. Their lordships of Hon'ble Supreme Court held that plaintiff has not established that he was in possession of the suit premises on the date of filing of suit and passing of status quo order. This case also does not seem to be applicable under the facts and circumstances of the present case.
21. In the present case, injunction was granted by the first appellate court and later on, this Court to maintain status quo, it was not open to the respondents to raise construction over the disputed land marked by the letters, ''A B C D' in the plaint. On comparison of first and second commission reports it is evident that in utter disregard of injunction order granted by this Court to maintain status quo, respondent No.10 continued with the constructions to run the hotel. Even the respondents declined to enter into the compromise and do not seem to have moved and pressed the application for vacation of injunction order granted by this Court. In such a situation, it was not open for the respondents to proceed with the construction.
22. Orissa High Court in a case reported in AIR 1992 Orissa 76: Chennaru Naghbhusan Rao. Vs. M. Rama Rao and others, held that construction raised by the defendant ignoring the order of Court, shall make out a case for the Court to direct for demolition of unauthorised construction. (para-7).
Aforesaid proposition of law has been reiterated by the Orissa High Court in AIR 2003 Orissa 73: Baishnab Pradhan and others. Vs. Guru Charan Pradhan. It has been held that while deciding an application under Order 39 Rule 2-A of CPC, Court may exercise its inherent power to maintain status quo ante.
23. In the case reported in (1997 3 SCC 11: High Court of Judicature at Allahabad through its Registrar. Vs. Raj Kishore Yadav and others, their lordships held that application filed under Order 39 Rule 2-A of CPC, shall be heard by the same Judge or the Successor Judge. Plurality of Judges appointed to High Court collectively, constitute High Court.
24. In a case reported in Ravi S. Naik Vs. Union of India, reported in 1994 Supp (2) SCC 641, where Speaker of Legislative Assembly ignored the order passed by the High Court, Hon'ble Supreme Court held that in absence of any authoritative pronouncement of Supreme Court, Speaker could not ignore the order passed by the High Court. Their lordships held that an order even though interim in nature, is binding till set aside by the competent Court. It cannot be ignored even on the ground that Court which passed the order, had no jurisdiction to pass the same. Para-40 of the judgment in the case of Ravi S. Naik (supra) is reproduced as under:-
"40. We will first examine whether Bandekar and Chopdekar could be excluded from the group on the basis of order dated December 13, 1990 holding that they stood disqualified as members of the Goa Legislative Assembly. The said two members had filed Writ Petition No. 321 of 1990 in the Bombay High Court wherein they challenged the validity of the said order of disqualification and by order dated December 14, 1990 passed in the said writ petition the High Court had stayed the operation of the said order of disqualification dated December 13, 1990 passed by the Speaker. The effect of the stay of the operation of the order of disqualification dated December 13, 1990 was that with effect from December 14, 1990 the declaration that Bandekar and Chopdekar were disqualified from being members of Goa Legislative Assembly under order dated December 13, 1991 was not operative and on December 24, 1990, the date of the alleged split, it could not be said that they were not members of Goa Legislative Assembly. One of the reasons given by the Speaker for not giving effect to the stay order passed by the High Court on December 14, 1990, was that the said order came after the order of disqualification was issued by him. We are unable to appreciate this reason. Since the said order was passed in a writ petition challenging the validity of the order dated December 13, 1990 passed by the Speaker it, obviously, had to come after the order of disqualification was issued by the Speaker. The other reason given by the Speaker was that Parliament had held that the Speaker's order cannot be a subject-matter of court proceedings and his decision is final as far as Tenth Schedule of the Constitution is concerned. The said reason is also unsustainable in law. As to whether the order of the Speaker could be a subject-matter of court proceedings and whether his decision was final were questions involving the interpretation of the provisions contained in Tenth Schedule to the Constitution. On the date of the passing of the stay order dated December 14, 1990, the said questions were pending consideration before this Court. 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 a 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 Powers, Privileges and Immunities of State Legislatures, Re AIR 1965 SC 745, SCR at p. 499]"
25. Allahabad High Court in the case reported in AIR 1956 All 258: State of U.P. Vs. Ratan Shukla, has held that the order passed by the Court dealing with the matter, cannot be disobeyed on the ground that it was not within the jurisdiction of the Court to pass the order. In case at the time when the Court was acting within its jurisdiction and passed the order, its violation shall amount to contempt of Court. Madras High Court in the case reported in AIR 1966 Mad 53: Nalla Senapathi Sarkarai Manradiar Palayakottai Vs. Sri Ambal Mills (P) Ltd., held that an order even if irregularly obtained, cannot be treated as a nullity, but must be implicitly obeyed, until, by a proper application, it is discharged.
26. The Karnataka High Court in a case reported in 1991 Kant Lj 352: D. M. Samyulla Vs. Commercial Corporation of the City of Bangalore, held that 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.
27. Hon'ble Supreme Court in the case reported in (1997) 3 SCC 443: Tayabbhai M. Bagasarwalla and another. Vs. Hind Rubber Industries Pvt. Ltd., and others, reiterated the settled principle of law that Court may pass appropriate order even if question of jurisdiction is raised and when such interim orders are passed, then that should be obeyed. The relevant portion of para 28 of the said judgment is reproduced as under:-
"28. ... A mere objection to jurisdiction does not instantly disable the court from passing any interim orders. It can yet pass appropriate orders. At the same time, it should also decide the question of jurisdiction at the earliest possible time. the interim orders so passed are orders within jurisdiction when passed and effective till the court decides that it has no jurisdiction to entertain the suit. These interim orders undoubtedly come to an end with the decision that this Court had no jurisdiction. It is open to the court to modify these orders while holding that it has no jurisdiction to try the suit. Indeed, in certain situation, it would be its duty to modify such orders or make appropriate directions. For example, take a case, where a party has been dispossessed from the suit property by appointing a receiver or otherwise; in such a case, the court should, while holding that it has no jurisdiction to entertain the suit, must put back the party in the position he was on the date of suit. But this power or obligation has nothing to do with the proposition that while in foce, these orders have to be obeyed and their violation can be punished even after the question of jurisdiction is decided against the plaintiff provided the violation is committed before the decision of the court on the question of Jurisdiction.
28. In the case reported in (2007) 11 SCC 374: All Bengal Excise Licensees' Association. Vs. Raghabendra Singh and others, their lordships of Hon'ble Supreme Court had taken note with deep concern of violation of Courts order by highly placed Government officers. While considering power of High Court under Section 2 (b) and 12 of Contempt of Courts Act, read with Section 151 and Order XXXIX Rule 1 of CPC, their lordships held that in case it is found that order of Court has been disobeyed, High Court should direct the contemnors to undo wrong committed by them restoring status quo anti, to quote relevant portion of para 27 as under:-
"27. Even assuming that there was any scope for bona fide misunderstanding on the part of the respondents, once it was found that the respondent had disobeyed the specific order passed earlier by the Court, the High Court should have directed the contemnors to undo the wrong committed by them which was done in clear breach of the order of the Court by restoring the status quo ante by canceling the lottery wrongfully held by them. The learned Judge found that the respondent-contemnors had held the lottery in violation of the Court's order and the results of the said lottery should not be permitted to take effect and should be treated as unlawful and invalid for the purpose of grant of license. The learned Single Judge for the purpose of upholding the majesty of law and the sanctity of the solemn order of the court of law which cannot be violated by the executive authority either deliberately or unwittingly should have set aside the lottery held and should not have allowed the respondents to gain a wrongful advantage thereby.
28. In our opinion, a party to the litigation cannot be allowed to take an unfair advantage by committing breach of an interim order and escape the consequences thereof. By pleading misunderstanding and thereafter retaining the said advantage gained in breach of the order of the Court and the wrong perpetrated by the respondent-contemnors in contumacious disregard of the order of the High Court should not be permitted to hold good. In our opinion, the impugned order passed by the High court is not sustainable in law and should not be allowed to operate as a precedent and the wrong perpetrated by the respondent-contemnors in utter disregard of the order of the High Court should not be permitted to hold good."
29. A Full bench of Madras High Court in the case reported in AIR 1975 Mad 270 (FB): Century Flour Mills Ltd. Vs. Suppiah, held that as a matter of judicial polity, the Court should guard against itself being stultified in circumstances like this by holding that it is powerless to undo a wrong done in disobedience of the Court's orders. In any case, Courts have ample power under Section 151 CPC to undo a wrong of its own order.
30. In the case reported in (1994) 2 SCC 266: Satyabrata Biswas. Vs. Kalyan Kumar Kisku, where an order of status quo passed by the Court was violated, their lordships held that all actions done in the teeth of the order of status quo are illegal. Order of Court cannot be circumvented by the parties with impunity even if a person was not party in Court proceeding.
31. In the case reported in (2007) 12 SCC 201: Meera Chauhan Vs. Harsh Bishnoi, Hon'ble Supreme Court reiterated the aforesaid proposition of law and held as under:
"18. At the same time, it is also well settled that when parties violate order of injunction or stay order or act in violation of the said order the Court can, by exercising its inherent power, put back the parties in the same position as they stood prior to issuance of the injunction order or give appropriate direction to the police authority to render aid to the aggrieved parties for the due and proper implementation of the orders passed in the suit and also order police protection for implementation of such order."
32. In the case reported in AIR 1996 SC 2005: Delhi Development Authority. Vs. Skipper Construction Company (P) Ltd., and another, their lordship of Hon'ble Supreme Court deprecated for deliberate violation of Court, to quote relevant portion of para 17, 18, 20 and 21 as under:-
"17. The contemnor should not be allowed to enjoy or retain the fruits of his contempt":
The principle that a contemnor ought not to be permitted to enjoy and/or keep the fruits of his contempt is well-settled. In Mohd.Idris v. R.J. Babuji [1985 (1) S.C.R.598], this Court held clearly that undergoing the punishment for contempt does not mean that the Court is not entitled to give appropriate directions for remedying and rectifying the things done in violation of its Orders. The petitioners therein had given an undertaking to the Bombay High Court. They acted in breach of it. A learned Single Judge held them guilty of contempt and imposed a sentence of one month's imprisonment. In addition thereto, the learned Single Judge made appropriate directions to remedy the breach of undertaking. It was contended before this Court that the learned Judge was not justified in giving the aforesaid directions to in additing to punishing the petitioners for contempt of court. The argument was rejected holding that
"the Single Judge was quite right in giving appropriate directions to close the breach [of undertaking]".
18. The above principle has been applied even in the case of violation of orders of injunction issued by Civil Courts. In Clarke v. Chadburn [1985 (1) All.E.R. 211], Sir Robert Megarry V-C observed:
"I need not cite authority for the proposition that it is of high importance that orders of the court should be obeyed. Willful disobedience to an order of the court is punishable as a contempt of court, and I feel no doubt that such disobedience may properly be described as being illegal. If by such disobedience the persons enjoined claim that they have validly effected some charge in the rights and liabilities of others, I cannot see why it should be said that although they ere liable to penalties for contempt of court for doing what they did, nevertheless those acts were validly done. Of course, if an act is done, it is not undone merely by pointing out that it was done in breach in law. If a meeting is held in breach of an injunction, it cannot be said that the meeting has not been held. But the legal consequences of what has been done in breach of the law may plainly be very much affected by the illegality. It seems to me on principle that those who defy a prohibition ought nat to be able to claim that the fruits of their defiance are good, and not tainted by the illegality that produced them."
19. xxx xxx xxx
20. In Suraj Pal, (AIR 1986 Cal 220), a Division Bench of the Calcutta High Court has taken the same view. There, the defendant forcibly dispossessed the plaintiff in violation of the order of injunction and took possession of the property. The Court directed the restoration of possession to the plaintiff with the aid of police. The Court observed that no technicality can prevent the Court from doing justice in exercise of its inherent powers. It held that the object of Rule 2-A of Order 39 will be fulfilled only where such mandatory direction is given for restoration of possession to the aggrieved party. This was necessary, it observed, to prevent the abuse of process of law.
21. There is no doubt that this salutory rule has to be applied and given effect to by this Court, if necessary, by over-ruling any procedural or other- technical objections. Article 129- is a constitutional power and when exercised in tandem with Article 142, all such objections should give away. The Court must ensure full justice between the parties before it."
33. A Division Bench of this court of which one of us (Hon'ble Mr. Justice Devi Prasad Singh) was a member, in the case reported in AIR 2011 All 72 Sree Ram Vs. State of U.P. and others, held that Courts have got right to pass appropriate orders to meet the ends of justice. But while passing an order, Courts are also empowered to enforce and implement the orders passed by it in letter and spirit by issuing appropriate directions to district authorities to enforce its direction or injunction.
34. In (2009) 5 SCC 665: Food Corporation of India. Vs. Sukh Deo Prasad, their lordships held that power exercised by Court under Order 39 Rule 2-A CPC is punitive in nature. A person who complains of disobedience or breach, has to make out a case beyond doubt that there was injunction or order directing the person against whom the application is made, to do or desist from doing some specific thing or act and that there was disobedience or breach of such order.
35. The aforesaid broader principle in case, is considered in the present controversy, it does appear that the defendant respondent continued with the construction work and completed the construction in spite of injunction granted by this Court (supra). The two commission reports issued at different times (supra) during pendency of present appeal, at the fact of record reveals that construction of Hotel (O.P. No.10) continued in spite of injunction granted by this Court to its logical end. The area of 9000 sq. ft. shrunken to 2400 sq. ft, and odd. The mighty hotelier continued to breach the injunction and completed construction over the disputed land in spite of injunction granted by this Court.
36. High Court is flooded by contempt petitions. Almost every interim order or even for compliance of final judgment, the contempt petitions are filed and only thereafter, orders are complied with. The situation seems to be unruly and eroding peoples confidence in administration of justice. In the present case, a mechanic running a workshop belonging to lower strata of society, is fighting for justice since 1983. We are not concerned with the merit of the case but we are concerned to uphold the majesty of law. No one is small or big before the courts. Everyone is equal before the law. The majesty of law is prime concern for the civilized society. The trend developed with regard to disobedience of orders passed by the Courts, is a matter of deep concern. In case a party is aggrieved by the order passed by the Court, then option is open to press for its vacation or prefer an appeal. Instead of proceeding in lawful manner in case a person takes the law in his or her hands, then courts should not shirk itself from its responsibility to punish the guilty. The purpose of Order 39 Rule 2-A of CPC is to maintain peoples confidence in administration of justice and in case it erodes for any reason whatsoever, then in due course of time, "might shall be the right" and society shall suffer from anarchy as may be noticed in different parts of the world.
37. In "The Shatpath Brahman (XIV.4.2.26) and the Brihad-Aranyak Upnishad (1.4.14) in identical terms lay down the supremacy of the law to quote :--"the law is the ruler even of the rulers and kings. Therefore there is nothing higher than law. With the aid of the law even a weakling overcomes the strong."
38. Lord Mansfield in R v Wilkes, (1770) 4 Burr. 2527, 2562-63, 98 Eng. Rep. 327, 347, observed to quote:-
"I will not do that which my conscience tells me is wrong, upon this occasion, to gain the huzzas of thousands, or the daily praise of all the papers which come from the press: I will not avoid doing what I think is right: though it should draw on me the whole artillery of libels: all that falsehood and malice can invent, or the credulity of a deluded populace can swallow."
39. In view of the above, it is a fit case where not only power under Section 151 of CPC should be exercised to make status quo ante but also contemner is liable to be punished with imprisonment under Order 32 Rule 2-A of CPC. The application deserves to be allowed.
40. The application is allowed with following directions:-
(i) Vijay Kumar Sahu son of late Shiv Narain Sahu, resident of 35-A, Friends Colony, Gokhaley Marg, Lucknow, Managing Director of M/s. Gemini Continental Private Limited, who contested and defended the cause on behalf of the respondent No.10 and filed counter affidavit, is punished with simple imprisonment for the period of two months. A non-bailable warrant be issued accordingly and the contemner (supra) shall be produced before the Chief Judicial Magistrate, Lucknow on 29.11.2013, who shall issue detention warrant to serve the sentence in pursuance to the present order.
(ii) The respondent No.10 is further directed to demolish all the construction raised between the first and second commission report (supra) within one month from today. In case the construction (supra) is not demolished, the Lucknow Development Authority Lucknow, shall demolish the same in the light of the two commission reports (supra) and observations made hereinabove within next one month. The Lucknow Development Authority Lucknow, shall recover the cost of demolition from the respondent No.10.
(iii) The costs of Rs.2 lakhs is also imposed on respondent No.10 M/s. Gemini Continental Private Limited, which shall be deposited in this Court within fifteen days. In case costs is not deposited, it shall be recovered as land revenue by the District Magistrate, Lucknow. The Registry of this Court to take follow up action. Applicant shall be entitled to withdraw cost.
(iv) The two commission report dated 13.5.2000 and 21.5.2011 (supra) as confirmed, shall be the part of the present judgment and their copies shall be issued by the Copying Section along with Naksha Nazari (sketch map).
(v) The application is allowed accordingly.
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