Supreme Court of India
SAMEE KHANversusBJNDU KHAN
- Citation
- 1998 INSC 334
- Decided
- 1 September 1998
- Disposal
- Dismissed
Holding
Under Order 39 Rule 2A, a court may order attachment of property, civil imprisonment, or both, and attachment is not a prerequisite for imprisonment.
Summary
Two neighbours were litigating over a narrow lane. The plaintiff obtained an interim injunction restraining the defendant from obstructing the lane, but the defendant erected a brick wall in defiance. The trial court, invoking Order 39 Rule 2A of the Code of Civil Procedure, ordered the defendant's civil imprisonment for one month and attached his property; the appellate court affirmed. The Rajasthan High Court quashed the imprisonment, holding that attachment of property must precede any civil detention. The Supreme Court examined the language of Rule 2A, particularly the phrase "and may also," and held that the provision permits the court to order attachment, imprisonment, or both, at its discretion, and that attachment is not a condition precedent. However, because the defendant had removed the obstruction and offered an unconditional apology, the Court dismissed the petition without ordering imprisonment.
Issues considered
- Whether Order 39 Rule 2A of the CPC requires attachment of a contemner's property as a condition precedent to ordering civil imprisonment.
- How the phrase "and may also" in Rule 2A should be interpreted – as an alternative or an additional remedy.
Legislation cited
- Code of Civil Procedure, 1908s. Order 21 Rule 32(1), s. Order 39 Rule 2A (sub‑rule 1), s. Rule 2(3) of Order 39 (deleted by Act 104 of 1976)
Subjects
Order 39 Rule 2ACivil contemptCivil imprisonmentAttachment of propertyStatutory interpretationInjunctionCPC"and may also"
Judgment
A SAMEE KHAN
v.
BJNDU KHAN
SEPTEMBER 1, 1998
B [S. SAGHIR AHMAD AND K.T. THOMAS, JJ.]
Code of Civil Procedure, 1908 :
Order 39, Rule 2A-Scope of-Disobedience or breach of injunc-
C ti01t-Trial cow1 01dered the pe1:w11 guilty to be detained in civil p1iso11-High
Cowt setting aside the order accepting the contention that cowt cannot detain
such person without orde1ing his prope1ty to be attached-Held, it is open to
the cowt to attach the property of disobeying pa!ty and at the same time coult
can order him to be detained in civil p1iso11 also if the coult deems it
necessary----Both the steps can be reso1ted to or one of them alone need be
D c/10se1~oweve1; High Coult was 1ight that in view of the respondent sub-
sequently removing the obstmction and tende1ing unconditional apology, it is
not necessary to put him in prison.
Vidya Charan Shukla v. Khubc11a11d Baghel, AIR (1964) SC 1099,
E relied on.
Ottapiurakkal Thazath Suppi & Ors. v. Alabi Mashur.Koyamza Kaya
Kwzhi Koya, AIR (1917) Mad. 448; Nawal Kislwre Singh & Ors. v. Rajendra
Prasad Singh & Ors., AIR (1976) Pat. 56 and Kapildeo Upadhyay v.
Raghunatlz Pande;; AIR (1978) Pat. 212, referred to.
F '
Interpretation of Statutes :
Word 'and'--Held sometimes by force of context is read ·as 'or' :
P1inciple of Noscitur a Sociis, applied.
G
Mw.well 011 'Interpretation of Statutes', referred to.
Words and Phrases :
Expression 'and may also'· occuring in Order 39, Rule 2A,
H C.P.C.-Meaning of
244
SAMEE KHAN v. BINDU KHAN . 245
Vidya Charan Shukla v. Klmbchand Baghel, AIR (1964) SC 1099, A
relied on.
Black's Law Dictionary and Stroud's Judicial Dictionmy, referred to.
CIVIL APPELLATE JURISDICTION. : Special Leave Petition (C)
No. 11992 of 1998. B
From the Judgment and Order dated p.2.98 of the Rajasthan High
Court in S.B.C.R.P. No. 298 of 1996.
S.K. Mehta for KL. Mehta & Co. for the Petitioner
c
The following order of the Court was del\vered :
Two neighbours are engaged in a long drawn fight in civil court on
a small issue. The fight started at the lowest level (Munsiffs Court) and
they have now reached this apex Court with a side issue which emanated
therefrom. Defendant in the suit has defied an order of ad-interim injunc- D
tion and plaintiff in the suit. moved for punitive action against him. The
trial court ordered him to be put in prison for one month. That order was
confirmed by the appellate Court, but the High Court in revision quashed
it. Plaintiff is still chasing his adversary on that issue and he has reached
this Court with the Special Leave Petition against the High Court's order. E
The subject-matter of the suit is a small space of land used as a
means of access (gali) which abuts the house of both the parties. Plaintiff
who filed the suit prayed for an ad-interim injunction order restraining the
defendant from causing any obstruction to the use of the said space as a
gali. The trial court which granted the temporary injunction order on F
16.10.1984 required the defendant to maintain status-quo in regard to the
suit property and subsequently the ad-interim order was made absolute..
But within a month thereof plaintiff complained to the court that the
defendant had put up a brick wall in the disputed space in utter defiance
of the injunction order and moved for initiating action under Order 39 Rule G
2A of the Code of Civil Procedure (for short 'the Code'). The trial court
found that defendant had put up the obstruction wall in disobedience of
the order of injunction and directed him to be detained in civil prison for
a period of one month. The said order was confirmed in appeal by the Civil
Judge (Senior Division). H
246 SUPREME COURT REPORTS (1998) SUPP.1 S.C.R.
A Before the High Court, defendant adopted a twin approach though
he did not dispute the factual position that the impugned obstruction was
made by him. Firstly he raised a contention that the court cannot order his
detention without ordering attachment of his property. Alternatively, he
pleaded for mercy of the court on the facts that the obstruction has
B subsequently been removed and he has tendered unconditional apology to
the court. Learned single Judge of the High Court of Rajasthan who heard
the matter, accepted both pleas and exonerated him from punishment.
Learned counsel for the petitioner contended first that the view
taken by the High Court that no court can direct a contumacious party to
C be detained in prison without ordering his property to be attached, is
contrary to law and settled legal position. He cited certain decisions of
different High Courts in support of his contention. In fact, those decisions
were cited before the High Court also but learned single .Judge dissented
from them and concluded that attachment of property of the defiant party
D is sine qua non for resorting to the action of sending him to prisort.
' 1 and 2 of the Code deal with powers of the Court
Order 39 Rules
to· grant temporary injunction. Rule 2A has been inserted in the order as
per Act 104/1976. Rule 2A reads thus:-
E "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, the Court granting
the injunction or making the order or any court to which the suit
F 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.
G (2) No attachment made under this rule shall remain in force for
more than one year, at the end of which time, if the dis-
obedience 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
H pay the balance, if any, to the property entitled thereto."
SAMEE KHAN v. BINDU KHAN 247
Along with the insertion of the said Rule, legislature has deleted the A-
erstwhile corresponding provision which was sub-rule (3) to Rule 2. It was
worded as follows:-
"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 B
person to be detained in the civil prison for a term not exceeding six
months, unless in the meantime the Court directs his release."
.It can be noted from the "Objects and Reasons" for the aforesaid
amendment in 1976 that it is intended to make the provision applicable C
also to cases where injunction orders passed under Rule 1 are disobeyed,
and for empowering a transferee court also to exercise such powers.
Othefwise the deleted provision is the same as the present sub-rule 2A(l).
Learned Single Judge considered the said Rule in juxtaposition with Order
21 Rule 32(1) of the Code and has observed that the latter provision deals
with execution of a decree of injunction against a judgment debtor while D
the former deals with ad-interim or interlocutory order of injunction by
providing remedies for disobedience or breach of~uch orders.
Learned Judge pointed out that under Order 21 Rule 32 the wording
is that the "decree may be enforced by his detention in the civil prison or
by the attachment of his property or by both". The use of the words "or
E
both" according to the learned Judge must be understood differently from
the words "and may also" as used in the case of interlocutory order of
injunction as the former definitely indicated that either of the alternatives
or both of them can be resorted to. The following are the reasons adverted
to by the learned judge: F
"This distinction between the two remedies, therefore, suggests that
the conjunction 'and' used in the language of sub-rule 1 of Rule
2A of Order 39 CPC should not be read as 'or' as has been used
in the language of sub-rule 1 of Rule 32 of Order 21. It may further
be noted that the use of the words 'and may also' in the latter part G
of sub-rule 2-A(l) clearly suggests that the remedy of civil im-
prisonment of the contemner is not an alternative remedy but an
'additional remedy'. Alternative remedies give option to choose
one or the other remedy from amongst the remedies provided and
such remedies are not co-existent unless specifically provide as has H
'.
248 SUPREME COURT REPORTS [1998] SUPP. l S.C.R.
A been done in Order 21 Rule 32 by use of the words 'or both'. In
the language of Order 39 Rule 2A(l) the use of the words 'and
may also' indicates the intention of the Legislature that the order
of detention of the contemn er in civil imprisonment may be, passed
·in 'addition to' the order of attachment of his property and not 'in
lieu' thereof."
B
Learned Judge then proceeded to consider it from another angle, for
which the main distinction between civil contempt and criminal contempt
was highlighted and observed that enforcement of the order in civil con-
tempt is for the benefit of one party against another, while the object in
C criminal contempt is to uphold "the majesty of law and the dignity of the
Court". In that context the High Court added thus:
"Viewed from the above angle also I am of the opinion that the
punishment of civil imprisonment in the case of violation or dis-
. obedience of the order of an injunction of a Court is t~ be awarded
D
'in addition to' and ,not 'in lieu of' or 'in the alternative' of the
punishment of attachment of his property. Rule 2A(l) gives an
"additional" power to the Court, as is indicated by the use of the
words " and may also" and not an "alternative" power, as would
have been indicated if the word "or" had been used, to punish the
E contemner by his sending to civil prison besides attaching his
property. In my opinion the legislature cannot be attributed with
an intention of using the words "and may also" in the latter part of
sub- rule (1) of Rule 2A <if the Order XXXIX CPC unnecessarily,
superfluously and without any purpose. Those words, to my mind,
. F necessarily suggest that the order of sending the contemner to civil
prison may be passed only in addition to the order of attachment
of his property."
At the first blush the above interpretation appeared attractive. But
on a closer scrutiny we feel that such interpretation is not sound and it may
G lead to tenuous results. No doubt the wording as framed in Order 21 Rule
32(1) would indicate that in enforcement of the decree for injunction a
judgment-debtor can either be put in civil prison or his property can be
attached or both the said courses can be resorted to. But sub-rule (5) of
Rule 32 shows that the court need not resort to either of the above two
H courses and instead the court can direct the judgement-debtor to perform,
SAMEE KHAN v. BINDU KHAN 249
the act required in the decree or the court can get the said act done A
through some other person appointed by the court at the cost of the
judgement-de~tor. Thus, in execution of a decree the Court can resort to
a three fold operation against disobedience of the judgment- debtor in
order to compel him to perform the act. But once the decree is enforced
the judgment- debtor is free from the tentacles of Rule 32. A reading of
that Rule shows that the whole operation is for enforcement of the decree.
B
If the injunction or direction was subsequently set aside or if it is satisfied
the utility of Rule 32 gets dissolved.
But the position under rule 2A of Order 39 is different. Even if the
injunction order was subsequently set aside the disobedience does not get c
erased. It may be a different matter that the rigour of such disobedience
may be toned down if the order is subsequently set aside. For what purpose
the property is to be attached in the case of disobediepce of the order of
injunction? Suh-rule (2) provides that if the disobedience or breach con-
tinues beyond one year from the date of attachment the court is em-
powered to sell the property under attachment and compensate the
D
. affected party from such sale proceeds. In other words, attachment will
continue only till the breach continues or the disobedience persists subject
to a limit of one year oeriod. If the disobedience ceases to continue in the
meanwhile the attachment also would cease. Thus even under Order 39
Rule 2A the attachment is a mode to compel the opposite party to obey E
the order of injunction. But detaining the disobedient party in civil prison
is a mode of punishment for his being guilty of such disobedience.
The words "and may also" appearing in R.2A were sought to be given
a meaning that the course suggested thereafter in the Rule has to be F
resorted to as an optional additional step, a resort to which would be
impermissible without complying with the first course suggested in the
Rule. The word "also" has different attributes and its meaning is not to be
confined to "further more". In legalistic use, the word "also" can be
- employed to denote other meanings as well. In Black's Law Dictionary the
word "also" has the following variety of meanings:
Also. Besides as well in addition; likewise, in like manner; similarly;
G
too; withal. Some other thing, including, further, furthermore, in
the same manner, moreover; nearly the same as the word "and" or
"likewise". H
250 SUPREME COURT REPORTS [1998] SUPP. I S.C.R.
A Since the word "also" can have meaning as such "as well" or "likewise",
can not those meanings be used for understanding the scope of the trio
words "and may also"? Those words cannot altogether be detached from
the other, words in the sub-rule. Here again the word "and" need not
necessarily be understood as denoting a conjunctive sense. In Stroud's
B judicial Dictionary it is stated that the word "and" has generally a cumula-
tive sense, but sometimes it is by force of a context read as "or". Maxwell
on "interpretation of Statutes" has recognised the above use to carry out
the interpretation of the legislature. This has been approved by this Court
in lshwar Singh v. State of UP, AIR (1968) SC 1450. The principle of
Noscitur A Sociis can profitably be used to construct the word "and may
C also" in the sub-rule.
Hence the words "and may also" in Rule 2-A cannot be interpreted
in the context as denoting to a step which is permissible only as additional
to attachment of property of the opposite party. If those words are inter-
D preted like that it may lead to an anomalous situation. If the person who
defies the injunction order has no property at all the court becomes totally
powerless to deal with such a disobedient party. He would be immuned
from all consequences even for any open defiance of a court order. No
-interpretation shall be allowed to bring about such a sterile or anomalous
situation (vide Constitution Bench in Vidya Charan Shukla v. Khubchand
E Baghel, AIR (1964) SC 1099). The pragmatic interpretation, therefore,
must be this: It is open to the court to attach the property of the disobeying
party and at the same time the court can order him to be detained in civil
prison also if the court deems it necessary. Similarly the court which orders
the person to be detained in civil prison can also attach the property of
F that person. Both steps can be resorted to or one of them alone need be
chosen. It is left to the court to decide on consideration of the fact situation
in each case.
It is pertinent to point out that Rule 2(3) of Order 39 of the Code
before that sub-rule was deleted by Act 104 of 1976, has been interpreted
G by different High Courts ill India and in almost all such decisions the High
Courts have adopted: a similar construction as we have made above. (That
.;uh-section has been qm*;d earlier). It is almost the same as Rule 2A and
the slight distinction is not material for us in this case. Vide: a Full Bench
of the Madras High Court in Ottapiurakkal Thazath Suppi & Ors. v. Alabi
H Mashur Koyanna Koya Kunhi Koya, AIR (1917) Madras 448) a Single
SAMEE KHAN v. BINDU KHAN 251
Judge of the Patna High Court in Nawal Kishore Singh & Ors. v. Rajendra A
Prasad Singh & Ors., AIR (1976) Patna 56 which was subsequently ap-
proved by a Division Bench of the same High Court. Kapildeo Upadhyay
v. Raghunath Pandey, AIR (1978) Patna 212.
We, therefore, disagree with the interpretation placed by the learned
Single Judge in the impugned order regarding the scope of Rule 2A of B
Order 39 of the Code. However, we are in agreement with him that in view
of the subsequent actions done by the respondent (by removing the
obstruction and tendering unconditional apology to the court) it is not
necessary to put the respondent in prison. We, therefore, dismiss this
special leave petition subject to the clarification made above regarding the C
legal position.
R.P. Petition dismissed.
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