Macpherson, J.:— The petitioner was one of the defendants to mortage Suit No. 135 of 1932, which was based upon a simple mortgage bond executed by petitioner and his father and the suit was for realisation of Rs. 1,699-2-0 by the sale of the mortgaged and other properties. The plaintiff applied for an injunction under O. 39, Rr. 1 and 2 against waste of the security through the petitioner and his son cutting trees from the orchard representing the mortgaged property. The Munsif granted ad interim injunction restraining the petitioner and two other defendants from cutting the trees and removing the timber of trees already cut. Eventually on 3rd January, 1934, plaintiff represented to the Court that the petitioner and his father were cutting the trees of the orchard in spite of the injunction and asked that they be detained in the civil prison. The Munsif committed the petitioner and his father to the civil prison for four months or till they express their regret to the Court and compensate plaintiff for the loss incurred by him.
2. The learned Munsif does not specify the provision under which his order was passed; but the District Judge on appeal which was dismissed, mentions O. 39, R. 2, Cl. (3) of the CPC. I issued the rule to show cause why the order of the Munsif should not be set aside on the basis of Dalai, J.'s decision in 1930 All 387(1) where he observed:
Through some inadvertence no penalty appears to be provided in O. 39 for the breach of an injunction. It seems likely that the provisions of R. 2(3), O. 39 were intended to be applied to a breach of an injunction under R. 1 also, but as Cl. 3 is included under R. 2 it would follow that the provisions of that clause will not apply to R. 1.
3. The learned Judge suggested an amendment of the rules prescribed. This is substantially the view of the law which is pressed at the hearing by Mr. Mahabir Prasad; but I have not been referred to any other decision in support. On the other hand, Mr. Hareshwar Prasad Sinha relies upon the decisions of the Madras High Court in 44 IC 56(2) and 1926 Mad 574(3). The former is the decision of a single Judge who was unable to accept the contention that the provision in O. 39, R. 2(3) only applies to suits of the nature contemplated by R. 2(1). (It is clear that in the present circumstances the injunction was issued under R. 1). The learned Judge observes:
Section 94, Cl (c) of the Code is general and empowers the Court to grant a temporary in junction and, in case of disobedience, to commit the person guilty thereof to the civil prison and order that his property be attached and sold O. 39 must be read with S. 94. I would be sorry to hold that a person who wilfully disobeys ??? injunction of Court could escape with impunity unless there is anything in the Code which compels me to do so.
4. The difficulty however would seem to be that S. 94(c) is dependent upon the words “if so prescribed” which mean “if so prescribed by rules under the Act.” R. 1 certainly empowers the Court to grant a temporary injunction but the power to commit to the civil prison in case of disobedience is not ac corded in that rule and unless it ??? be implied in O. 39, R. 2(3) it is no prescribed at all. O. 39, R. 2(1) deal with cases of a special class and under the ordinary rules of drafting all the sub-rules of R. 2 would ordinarily be understood to refer to sub-R (1) unless otherwise stated. The second case, ??? Mad 574, which was decided by Division Bench, may be summarised a follows;
The drafting of R. 2(3) of O. 39 is somewhat inartistic, but there is no doubt that it applies to disobedience genetally of an injunction granted by the Court. It applies not only to disobedience of an order issued under Cls. (1) and (2) of that rule but has a mire general application it applies alike to disobedience of all the in junctions issued under S. 94.
5. The learned Judges also refer to 42 All 98(4), at p. 108, where the following appears:
It has been suggested, that in any case ??? procedure is provided for punishing any ??? of the condition so imposed. This argument turns in part on the interpretation to be pt on O. 39, R. 2, Cl. (3) of the CPC. The drafting of the rule is a little clumsy, because it has followed mechanically the arrangement of sections in the Code of Civil Procedure of ??? but we are satisfied that the words “in case ??? disobedience” are wide enough to cover breaches of injunctions issued under O. 39, R. (1), ??? which breaches no penalty is elsewhere provided. In any case this Court has unquestion ably the power to punish contempt of its ??? orders.
6. The last sentence shows that the Allahabad decision is not a direct authority since in the present case the in junction was not issued by the High Court. The question is whether it is a case of omission accidental or otherwise, so that in fact the Court is not empowered by rules prescribed in case of disobedience of a temporary injunction granted under O. 39, R. 1, to commit the person guilty thereof to the civil prison, or whether O. 39, R. 2(3) directly or by necessary implication does prescribe such power of commitment. I may say that Mr. Hareshwar Prasad Sinha has referred to the decision of their Lordships of the Judicial Committee in 20 CWN 457(5). But it does not appear to be very much in point. In my opinion this is a case which should be decided by a Division Bench and I accordingly refer it so that a decision may be available to the Courts of the province, and that if necessary an amendment in the rules prescribed may be made.
ORDER OF DIVISION BENCH
7. Macpherson, J.:— The facts and also the points at issue are set out in the observation made by me in referring the case to a Division Bench and need not be repeated as they will form a part of this judgment. At the hearing two recent decisions have been referred to, the first being that of Dhavle, J. in 16 PLT 309(6), and the other that of Baker, J., in 1931 Bom 509(7). In the former the learned Judge after dissenting from 1930 All 387 and making reference to 42 All 98 and 1926 Mad 574, held that O. 39, R. 2(3) applies to disobedience generally of an injunction granted by the Court and that the words “in case of disobedience” of that clause are wide enough to cover breaches of injunctions issued under O. 39, R. 1, for which breaches no penalty is elsewhere provided. In the latter it was held that an undertaking by a defendant to the Court was equivalent to an injunction to which O. 39, R. 2 is applicable. Another point which may be mentioned is that though the decision in 42 All 98 related to contempt of the orders of the High Court which the High Court had unquestionably the power to punish, the High Court possesses now under the provisions of the Contempt of Courts Act, 1926, the same power in respect of contempt of the orders of subordinate Courts. Apart from the consideration that the Legislature was unlikely to omit provision for a penalty for a breach of an injunction under O. 39, R. 1, the intention of the Legislature to make R. 2(3) govern both R. 1 and the earlier part of R. 2 may be inferred from a comparison of Rr. 1 and 2 with the provisions of Sections 492 and 493 of the CPC, 1882, which they very largely reproduce. R. 1 is substantially S. 492, and R. 2 is substantially S. 493 with its paragraphs 4 numbered. R. 2(3) which reads:
In case of disobedience or of breach, of any such terms, the Court granting an injunction 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 six months, unless in the meantime the Court directs his release,
is thus based upon para. 3 of S. 493 which runs:
In case of disobedience, an injunction granted under this section or S. 492 may be enforced by the imprisonment of the defendant for a term not exceeding six months, or the attachment of his property, or both.
8. The words “or of breach of any such terms” has reference to para. 2 of S. 493 and R. 2(2). It seems clear that the words
“in case of disobedience the Court granting an injunction may order” were intended to reproduce “in case of disobedience an injunction granted under this section or S. 492 may be enforced….”
dropping the reference to the sections and to cover all temporary injunctions as before whether granted under R. 1 or R. 2(1); and though, as has been frequently observed, the drafting is not lucid, it sufficiently implies that intention. At the same time it would appear desirable to redraft R. 2 perhaps by replacing R. 2(3), with such modifications as may be required, by a new R. 2-A. Mr. Mahabir Prasad asks us to accept an apology from his client and direct his release from bail, but the materials before us for a decision are inadequate and such an order, if made ought to come from the Court of the Munsif which has to see that, in the words of the order, the petitioner also compensates the plaintiff for the loss incurred by him.
9. The application is without merit and I would discharge the rule with costs.
10. Mohammad Noor, J.:— I agree.
11. Rule discharged.