DR.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY
2016-2017

CODE OF CIVIL PROCEDURE

PROJECT ON
CONSEQUENCES OF DISOBEDIENCE OR BREACH OF
INJUNCTION

Submitted to: Submitted by:

Dr. Radheshyam Prasad Nivedita Singh

(Assistant Professor) B.A.LL.B (Hons.)

Dr. RML National Law University, Semester- IV.

Lucknow. Roll no. 97

Section-B
 ACKNOWLEDGEMENT
I would like to express my heartfelt gratitude to my teacher and mentor Mr. Radheyshyam
Prasad (assistant professor), a special thanks to the Vice Chancellor of Dr. Ram Manohar
National Law University Mr. Gurdeep Singh for providing me with this opportunity. I also
greatly acknowledge the help and guidance provided to me by Prof. C.M. Jariwala (Dean
Academics).

Thanks and appreciation to my family members for their constant support, to the library
staff and other members of this institution and lastly to my friends for their help.
 INTRODUCTION

The CPC states that in consequence of disobedience of a breach of any injunction, or any of the
terms on which the injunction was granted, or the Order made, the court which granted the order
or any other court to which the suit is transferred may order the property of the person guilty of
such disobedience the attached. In case of the continuation of the breach the property attached
might be sold out and out of the proceeds the court may award such compensation as it thinks fit
and pay the balance if any too the party entitled thereto. The court may also order such reason to
be detained in a civil prison for a term not exceeding three months.
BREACH OF INJUNCTION:

According to fact situation in each case for breach of injunction the court can order detention of
disobeying party or attach his property or both steps can be resorted to. In case of execution of a
decree in addition to above courses, the court can set performance required in the decree through
some other person appointed at the cost of the judgment-debtor.

The whole operation is for the enforcement of the decree. Where the direction or injunction is
subsequently set aside or if it is satisfied the action gets dissolved. Thus where a wall of
obstruction in disobedience of order of injunction was later on removed and unconditional
apology was tendered there is no necessity to put him in prison.

The person disobeying injunction order can be punished for violation of interim order even if
ultimately it is found that the civil court had no jurisdiction to entertain the suit itself. Not
penalizing for such disobedience would be subversive of rule of law and would seriously erode
the dignity and authority of the courts1.

HOW TO PROVE BREACH OF INJUNCTION ORDER?

 A proceeding under Order XXXIX. Rule 2A, C.P.C., initiated on the ground of disobedience or
breach of injunction order, is in the nature of a criminal proceeding as the person against whom
such proceeding is initiated is liable to be detained in prison if it is found that he had committed
breach of injunction order. Since a punishment is imposed and a person is sent to Jail, the
principle on which these proceedings are decided are entirely different. Here the principle of
criminal law will apply and the plaintiff will have to establish beyond any shadow of doubt that
the defendants had committed disobedience or breach of the injunction order even though he had
full knowledge of the same. The burden of proving its case in such cases lies entirely on the
plaintiff.2

1
https://advocatemmmohan.wordpress.com/2013/03/15/code-of-civil-procedure-1908-order-39-rule-2a-scope-of-
disobedience-or-breach-of-injunc-tion-trial-court-ordered-the-person-guilty-to-be-detained-in-civil-prison-high-
court-setting-aside-the-order/
2
C.K TAKWANI, CIVIL PROCEDURE WITH LIMITATION ACT 1963(7TH ED.).
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 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. [Order XXXIX, Rule 2-A].

Violation of injunction order—Order of detention and attachment of property set aside:

Where defendant was said to have raised construction on disputed site in status quo order passed
by Court. Construction on the disputed site had been raised by defendant much prior to filing of
suit. Photographs relief by plaintiff was not shown to be connected with site in dispute.

Even report of Commissioner was found to be defective. Main suit for injunction had been
dismissed by trial Court. Held, that in the absence of conclusive proof of violation of status quo
order, order of detention and attachment of property of defendant was liable to be set aside.3

DISOBEDIENCE OF INJUNCTION BY DEFENDANT’S AGENT

A person is liable to be proceeded against under Order XXXIX, Rule 2-A, C.P.C. (Rule 3 of the
old Code) even if he was not personally a party to the suit provided he is shown to have been
agent or servant of the defendant and to have violated the order of injunction in spite of
knowledge that there was such an order.

The expression ‘person’ occurring in sub-rule 2A was employed merely compendiously to

designate everyone in a group, defendant, his agent, servants and workmen and not for excluding
any defendant against whom the order of injunction has primarily been pressed.4

3
http://www.mylegaladvisor.in/bare-acts/procedural-laws/cpc/order-xxxix-temporary-injunctions-interlocutory-
orders/
4
http://judicialacademy.nic.in/index.php?option=article&id=80&ItemId=136
Hence in cases where the State is the defendant against which an order of injunction has been
issued, it is ‘expressly’ named in the clause and not even by necessary implication. Otherwise the
order of injunction would be frustrated and the power rendered ineffective and unmeaning if the
machinery for enforcement specially enacted did not extend to everyone against whom the order
of injunction is directed.

Reference is made to Form 8 of Appendix F of the Code which reads:

“This Court doth order that an injunction be awarded to restrain the defendant CD, his servants,
agents and workmen from”

It is clear from a perusal of Rule 2-A of Order XXXIX and Order XLIII, Rule 1 (r) that an appeal
lies against an order passed under Rule 2-A of Order XXXIX.

In cases of disobedience or breach of injunction order .issued temporarily during pendency of

suit either under Rule 1 or Rule 2 of Order XXXIX, C.P.C., it is inexpedient to invoke and
exercise contempt jurisdiction. In such cases action is contemplated by the court which issued
the injunction order under Rule 2A of Order XXXIX, C.P.C.

It is well settled principle of law that when there is a special law and general law, the provisions
of special law prevail over general law and since special procedure and provisions are contained
in the Code of Civil Procedure itself under Order XXXIX, Rule 2A for taking action for the
disobedience of an order of injunction, the general law of contempt of court cannot be invoked,
Contempt jurisdiction may not be invoked in such cases, which is primarily reserved for what
essentially brings the administration of justice into contempt or unduly weaken it.

The disobedience of injunction is a civil contempt. Strictly speaking, it does not fall within S. 2
(b) of Contempt of Courts Act. It is specifically dealt with in Order XXXIX, C.P.C. But it is not
a criminal contempt.

ADVERSE POSSESSION

Mere possession, however long, does not necessarily mean that it is adverse to the true owner.
Adverse possession really means hostile possession, which is expressly or impliedly in denial of
the title of the true owner. In order to constitute adverse possession, the possession proved must
be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true
owner. The classical requirements of acquisition of title by adverse possession are that such
possession in denial of the true owner’s title must be peaceful, open and continuous. The
possession must be open and hostile enough to be capable of being known by the parties
interested in the property though it is not necessary that the adverse possessor actually informs
the real owner of his adverse hostile action (T.Anjanappa V/s Somalingappa (2006) 7 SCC 570).5

CONTEMPT OF COURT ACT 1971

Under the Substantial law the Contempt of Court Act 1971 defines both Civil and Criminal
Contempt.

Under this Act Civil Contempt is defined as willful disobedience to any judgment, decree,
direction, order, writ or other process of a court or willful breach of an undertaking given to a
court.

Whereas Criminal Contempt would mean publication of any matter that scandalizes or tends to
scandalize the authority of the court or interferes in the administration of justice.

Section 12 states that the punishment for civil contempt shall be a sentence of simple
imprisonment, and that he de detained in a civil prison for such period not exceeding 6 months.
This is only meted out when the court is satisfied that a fine would not meet the ends of justice.

Additionally, it is stated that when the person found guilty of contempt of court in respect of any
undertaking given to a court is a company, every person who, at the time the contempt was
committed, was in charge of, and was responsible to, the company for the conduct of business of
the company, as well as the company, shall be deemed to be guilty of the contempt and the
punishment may be enforced, with the leave of the court, by the detention in civil prison of each
such person. Though if the person could prove that the breach was committed without his
knowledge or that he had taken steps to prevent the breach. The person could be any director,
manager, secretary or other officer of the company S 12 (5).

Additionally, Section 13 states that no court shall impose a sentence under the Act for a
contempt of court unless it is satisfied that the contempt is of such nature as to interfere or tend
to interfere, substantially with the due course of justice. Section 20 states that no court shall
initiate any proceedings of contempt after a period of one year has expired from the date of the
breach.

Hence it can have been seen that the law does provide ample protection, and provides remedies
for the breach of an order of the court. The act of contempt of court is more common than one
would like believe, and it is prudent to keep a close eye for any breach that might be happening,
with respect to an injunction passed in one’s favor.

5
http://judicialacademy.nic.in/index.php?option=article&id=80&ItemId=136
EFFECT OF PRIVATE ALIENATION AFTER THE ISSUE OF
TEMPORARY INJUNCTION:

The effect of a temporary injunction is not to make a subsequent alienation of the property void.
Any mortgage or sale of property by a party in contravention of an injunction is not illegal and
void. The only penalty that the person disobeying the order of injunction incurs is that prescribed
by Rule 2-A of Order XXXIX, namely, that the court granting an injunction may order the
property of the person guilty of such disobedience or breach to be attached and sold for awarding
out of the sale proceeds compensation to the party on whose application the injunction was
granted and he may also be detained in the civil prison for a term not exceeding three months.

ORDER FOR INJUNCTION MAY BE DISCHARGED, VARIED OR SET

ASIDE:

An order for an injunction may be discharged, or varied, or set aside by the court on application
made thereto by any party dissatisfied with such order : Provided that in an application for
temporary injunction or in any affidavit supporting such application, a party has knowingly made
a false or misleading statement in relation to a material particular and the injunction was granted
without giving notice to the opposite party, the Court shall vacate the injunction unless, for
reasons to be recorded, it considers that it is not necessary so to do in the interests of justice:

Provided further that where an order of injunction has been passed after giving to the party an
opportunity of being heard, the order shall not be discharged, varied or set aside on the
application of the party except where such discharge, variation or setting aside has been
necessitated by a change in the circumstances, or unless the Court is satisfied that the order has
caused undue hardship to the party. [Order XXXLX, Rule 4].6

6
http://www.lawweb.in/2017/03/how-to-prove-breach-of-injunction-order.html
ORDER FOR TEMPORARY INJUNCTION—WHEN CAN BE
INTERFERED IN REVISION:

If the trial Court or the lower appellate Court is found to have passed an order of temporary
injunction in exercise of its power either under Order XXXIX, Rule 1, C.P.C. or under Order
XXXIX, Rule 2, C.P.C. in clear breach of the said propositions, the same cannot be stated to
have been passed in exercise of the jurisdiction vested in it under the said provisions of C.P.C.
and, therefore, that order would be liable to interference and will have to be set right by this
Court in exercise of its revision jurisdiction under Section 115, C.P.C.

CASE LAWS

Food Corporation of India vs. Sukh Deo Prasad AIR 2009 SC 2330

Consequence of disobedience or breach of injunction - Order 39 Rule 2A of the Code of Civil

Procedure

Application under Order 39, Rule 2A of the Code is maintainable only when there is
disobedience of any `injunction' granted or other order made under Rule 1 or Rule 2 of Order 39
or breach of any of the terms on which the injunction was granted or the order was made.
Application in the instant case on which the relevant order was passed, was neither under Rule 1
nor under Rule 2 of Order 39 CPC and none of the ingredients required for an application under
either Rule 1 or Rule 2 of Order 39 existed was found in the application by the bank. The power
exercised by a court under order 39 Rule 2A of the Code is punitive in nature, akin to the power
to punish for civil contempt under the Contempt of Courts Act, 1971. The person who complains
of disobedience or breach has to clearly make out beyond any doubt that there was an 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. While
considering an application under order 39 Rule 2A, the court cannot construe the order in regard
to which disobedience/breach is alleged, as creating an obligation to do something which is not
mentioned in the `order', on surmises suspicions and inferences. The power under Rule 2A
should be exercised with great caution and responsibility.7

7
C.K TAKWANI, CIVIL PROCEDURE WITH LIMITATION ACT 1963(7TH ED.)
Dr. Bimal Chandra Sen v. Mrs. Kamla Mathur, 1983 Cri.L.J. 494.

In view of the discussion, once reaches the inescapable conclusion that proceed under Order 39,
Rule 2A are quasi-criminal in nature and are meant to maintain the dignity of the Court in the
eyes of the people so that the supremacy of law may prevail and to deter the people for mustering
the courage to disobey the interim injunction passed by the Court.8

Binode Bihari Das Vs. Kashi Nath Mukherjee and Anr 2009 CAL 0019

Eviction- Suit for eviction filed before Trial court by the respondent/plaintiff was allowed on the
ground of bonafide need- Appellate court dismissed the appeal by the Appellant- Question
before the court was whether suit accommodation is bonafidely required by the respondent?

Concurrent findings of fact arrived at by the learned Courts below on materials on- record is not
vulnerable in Second Appeal under Section 100 of the Civil Procedure Code. The defendant
never disputed the existence of relationship of landlord and tenant between the parties though the
defendant claimed that the plaintiffs were not the inducting landlord. The ascertainment as to
who inducted the defendant is immaterial in such a suit. What is material is to ascertain as to
whether the relationship of landlord and tenant existed between the parties as on the date of
institution of the suit or not. Here both the Courts found that relationship of landlord and tenant
exists between the parties and the plaintiffs have become the owner of the suit premises by virtue
of the said deed of gift which was duly acted upon.

Birendra Mahto Vs.UOI 2009 DEL0237

Service - Petitioner appointed as constable -Information required to be disclosed by the petitioner

in Column 12(b) of the Attestation Form has not been disclosed regarding pendency of criminal
case- Show cause notice issued and service were terminated by the respondent in exercise of
powers conferred on the appointing authority under Rule 25(2) of the CISF Rules, 2001.

Petitioner did not dispute that the information furnished by him in column 12 of the Attestation
Form was incorrect inasmuch as he was found to have been prosecuted in a criminal case and
was facing trial therein at the relevant time when he filled up the Attestation Form. Expressing
regret for the lapse and seeking to justify suppression of material information of his being
prosecuted in the criminal case by pleading that the petitioner was laboring under the
misimpression that no offence had actually been committed by him, in view of compounding of
the offences, could not have accounted for dilution of seriousness of the lapse to the extent of
offsetting the consequential effect in the nature of the impugned order.

8
http://www.manupatra.com/roundup/261/judgments.html
Sushil Kumar Agarwal Vs. Kalidas Sadhu 2009 CAL 0005

Specific performance - Suit for specific performance of contract filed before Trial court by the
appellant/plaintiff was dismissed- Question that arises for determination in this appeal is whether
a suit for specific performance of contract for enforcement of construction of a building is
maintainable at the instance of a developer in view of the provisions contained in Section 14(3)
(c) of the Specific Relief Act, 1963.

Court found that the contract sought to be enforced in the suit out of which the present appeal
arises is barred as it failed to comply with the conditions mentioned in Sub-section (3)(c) of
Section 14 the Act.9

Nicholas V. Menezes Vs. Joseph M. Menezes and Ors. 2009 SC 0451

First Appeal - Dismissal thereof by learned Single Judge of the High Court without calling for
the records and proceedings and without appreciating the pleadings and evidence, oral and
documentary, on record

While deciding First Appeal, the High Court must consider the evidence on record, oral and
documentary and also the questions of law raised before it and at the same time it was the duty of
the court to consider the reasons given by the trial court against which the first appeal was filed
and thereafter dispose of the same after passing a speaking and reasoned order in accordance
with law. In the instant case the procedure was not adopted by the High Court and accordingly
case to be sent back for consideration of appeal on merits.10

WHETHER PERSON DISOBEYING INJUNCTION ORDER CAN BE

DETAINED IN CIVIL PRISON AS WELL AS HIS PROPERTIES CAN BE
ATTACHED

Samee Khan Vs. Bindu Khan 1999(1) PLR465 SC

Order 39 Rules 1 and 2 of the Code deal with powers of the Court to grant temporary injunction.
Rule 2A has been inserted in the order as per Act 104/1976. Rule 2A reads thus:-

"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 or proceeding is transferred, may order the property of
9
https://indiankanoon.org/search/?formInput=disobedience%20of%20injunction
10
http://www.manupatra.com/roundup/261/judgments.html
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 property entitled thereto."

6. Along with the insertion of the said Rule, legislature has deleted the 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 person to be detained in the civil prison for a term not exceeding six months,
unless in the meantime the Court directs his release."
CONCLUSION

 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 interpreted 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 immune 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.

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 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.
BIBLIOGRAPHY

 CK TAKWANI, CIVIL PROCEDURE WITH LIMITATION ACT 1963 (7TH ED.)

 http://www.selvamandselvam.in/blog/what-to-do-when-an-injunction-is-not-enough-to-
stop-the-infringement/
 http://www.manupatra.com/roundup/261/judgments.html
 https://indiankanoon.org/search/?formInput=disobedience%20of%20injunction
 http://www.lawweb.in/2017/03/whether-person-disobeying-injunction.html
 http://lawfinderlive.com/Judgement.aspx?q=270126&p=1&pos=4&qType=6