Violation of Injunction Order & Consequences Under Order XXXIX Rule 2(a)

Hey, to answer your question we need to dwell into Order 39 and the concept of non-joinder and mis-joinder of necessary parties.

Order 39 Rule 2a states that: “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.”

Now lets look at the provision dealing with non-joinder and mis-joinder of any party. Non-joinder can be defined as an omission to join some person as a party to a suit, whether as plaintiff or as defendant, who ought to have been joined according to the law. Misjoinder of parties means a joinder of a party who ought not to have been joined either as a plaintiff or as a defendant. When we talk about no-joinder and mis-joinder, only necessary parties are the ones who are included under this provisions. A necessary party is a party without impleading whom a claim cannot be legally settled by court. In other words, in the absence of a necessary party, no effective and complete decree can be passed by the court. There is no standard for determining who are the necessary parties to a suit. This shall depend upon the facts and circumstances of each case. For instance, in a suit filed against a public servant in relation to his public functions, the government shall have to be impleaded but in a suit filed against the same person in relation to his not paying maintenance to his divorced wife, the government shall not be a necessary party.

Now, to answer your questions:

A1) Since the possession of the property has been given to the third party even though it was done without proper legal channels and the sale deed was not registered, the third party should be added as a party as he has the possession of the property which I believe is the subject matter.

A2) Yes, it is because the property in question is now in possession with the third party.

A3) Under O39 R2a, the court will order the person whom it belongs to to be attached, and then the court might put that person in a civil prison. Hence if the court finds that the sale of property is completely against law, then they might go forward with this. Hence, you may pray to evict the third party from suit property.

You can refer to the following case laws:

1. A. Venkatasubbiah Naidu vs S. Chellappan And Ors

2. Food Corporation Of India v. Sukh Prasad

Grant of temporary injunction cannot be claimed by the party as a matter of right nor can be denied by the Court arbitrarily. The party seeking relief not only has to establish prima facie case but also the irreparable loss that would be caused in case of denial to grant relief and that the balance of convenience lies in his favour. The rational behind the provision of Order 39 of the Code of Civil Procedure, as laid down by Hon'ble Supreme Court in the case of M. Gurudas and Ors. Vs. Rasaranjan and Ors. – AIR 2006 SC 3275, can be summarized as "While considering an application for injunction, the Court would pass an order thereupon having regard to prima facie, balance of convenience and irreparable injury".

Hope this answers your question!

Regards

Palak Singh

Brief Analysis

The defendant entered into an agreement to sell the suit property during the pendency of the suit which is barred by section 52 of the Transfer of property Act although agreement to sale as defined under section 54 of the transfer of property act does not, of itself, create any interest in or charge on such property answering a reference, a full Bench of the High Court of Kerala has held that an agreement of sale executed by a party to lis during the pendency of suit will be hit by the doctrine of lis pendes under Section 52 of the Transfer of Property Act. The reference arose when a division bench doubted the correctness of an earlier division bench decision in Wellingdon B and others v D Shyama Prasad and others 2014(3) KHC 560 which had held that such an agreement of sale will not be hit by Section 52, on the reasoning that sale agreement by itself did not create any right, title or interest in the property.[1]

The Court endorsed the view expressed by the view expressed in Kubra Bibi v Khudaija Bibi AIR 1917 Oudh 193 that creation of a contract capable of specific performance, though not an alienation by itself, is a mode of dealing with property, pregnant with the mischief, which Section 52 seeks to obviate

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1. Whether the third party is necessarily required to be added to suit even though ownership is still with the defendant?

Jayaram Mudaliar vs. Ayyaswami & Ors . AIR 1973 SC 569 and Rajender Singh and Ors. v. Santa Singh and Ors AIR 1973 SC 2537

This principle applies not merely to actual transfer of rights, which are subject matter of litigation, but to other dealings with it by any party to the suit or proceedings, so as to affect the right of any other party thereto. If one acquires property by way of transfer or otherwise pendent lite , the subsequent transferee is bound section 52 of TPA.

Order 1 rule 10 talks about adding or substituting a party.

In the case of Kasturi v. Iyyamerumal AIR 2005 SC 2813  the court laid down two test for determining the question whether a particular party is a necessary party to thee proceeding or not-:

1. There must be right to some relief against such party in respect of the matter involved in the proceeding in question.
2. It should not be possible to pass an effective degree in absence of such a party.

My opinion

Since it is clear from above mentioned position that the subsequent pendent lite is bound by section 52 and has to face the legal effects of the decree it must be added as a necessary or proper part in the suit.

2. Whether the third party is a necessary party for proceeding under Order 39 rule 2(a) of CPC?

In this context, it is also necessary to reproduce Rule 2A of Order XXXIX CPC, which deals with the consequences of non-obedience of Court's order of interim injunction wherein it is clear that 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

.Interpretation of the term person

Shri Prakash Gobindram Ahuja vs Shri Ganesh Pandharinath Dhonde

The object of Order XXXIX Rule 1 and 2 CPC is to totally restrain a party, pending the litigation, from creating any third party interests in the suit property and ensuring that the suit property remains in  the same condition as it was on the date of filing of the suit. Thus, the object of Order XXXIX Rule 1 and 2 CPC, under which the order of injunction is passed, is totally different from that of Section 52 of the TP Act wherein the transfer is not void per se. This provision restrains the party from entering into any sort of transaction or alienation, whatever may be the circumstances or whatever may be the exigencies.

Effect of disobedience

 If we consider the effect of breach of such order of interim injunction, then, the consequences are laid down in Rule 2A and Rule 11 CPC. As stated in Rule 2A of Order XXXIX CPC, in the case of disobedience of any injunction granted or other order made under Rule 1 or 2 or even in the case of breach of any of the terms on which the injunction was granted or order made, the Court 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 civil prison. Thus, the consequences of disobedience or breach of injunction order entails attachment and sale of the property of the concerned person or even detention of such person in civil prison. Rule 11 of Order XXXIX of Bombay Amendment also lays down that in case of breach of any order passed by the Court, suit of the party committing the breach is liable to be dismissed or if the party committing such breach is defendant, then his defence is liable to be struck off.

The court dealt with the same issue as asked by you

This legal position is brought out by the terms of an injunction order set out in Form 8 of Appendix F to the CPC. Whether a person not impleaded in the suit and not named in the injunction order can be proceeded against under Order 39, Rule 2A for violation of the order depends on the facts and circumstances of the case?. An injunction is an equitable relief and it is trite law that equity acts in personam. Therefore, an injunction is a personal matter.

The court in this regard held that-:

“An injunction is a judicial process whereby a person is ordered to be restrained from doing or to do a particular act or thing in a particular manner. The former is called the "restrictive injunction" and the latter a "mandatory injunction". An interlocutory or interim injunction is to preserve matters "in site" until the case can be tried. The ordinary rule, therefore, is that the person disobeying the order of injunction is to be proceeded for contempt as the person named in the writ. Persons who are not parties where order of injunction is passed are normally not to be proceeded against for disobeying the injunction. However, the exception to this general rule is that where it is alleged and proved that the person who violated the order of injunction was an agent or servant or workman of the person against whom the order of injunction was passed, the proceeding can be validly initiated against such person. In such a case the person violating the order can be proceeded against, and also who have acted in abetting the violation of the order of injunction. The violation of an injunction is punishable under the Code itself.

Note-: Additional Information needed in the present context

Strict interpretation taken in  Prafulla Kumar Mohapatra vs. Jaya Krushna Mohapatra, AIR 1994 Ori. 173)

The court can also apply its Inherent power under section 151

 “In short, to put it pithily, can it be said that for a breach of the injunction by a party or a stranger for aiding or abetting the breach alone, the Court's inherent power can be exercised and not in a case of a third party, who had the knowledge of the order, but decided to violate it, who may be guilty of obstructing the administration of justice still, will not be subject to any restitution order? This I feel needs no detailed discussion. No person can obstruct the path of justice. No one can escape by committing a gross and violent obstruction to the implementation of the order/direction of the Court. The only question relevant in such a situation will be, whether the right which such a person has pleaded has been acquired by the violation of the order or had existed in him independently unaffected by the injunction. There can be no other law than one stated above that no person should be allowed to reap the benefits of a wrong done by him and thus whether he is a guilty of civil contempt or criminal contempt, the wrong doer can always be subjected to the inherent jurisdiction of the Court, which is not different for the civil or criminal contempt. “

My opinion

The ordinary rule, therefore, is that the person disobeying the order of injunction is to be proceeded for contempt as the person named in the writ. However, the exception to this general rule is that where it is alleged and proved that the person who violated the order of injunction was an agent or servant or workman of the person against whom the order of injunction was passed, the proceeding can be validly initiated against such person and hence I request you to provide additional facts in this regard.

However the court can under its inherent power under section 151 punish the person who had notice actual or constructive and violated such order.

1. Can we pray to the hon'ble court under 39 Rule 2(a) to evict the third party from suit property and seal the property? Any case law in this respect will be very helpful. I will be grateful to you.

The court While differentiating between contempt in Parmendar Kaur vs Shri Akhilesh Yadav  procedding and order 2a has explained the provision.

2-A. 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."

The attachment can continue for one year and if the party against whom the order or decree is passed refused to comply, the property can even be sold.

My opinion

Since there is no provision for enforcing an injuction by evicting the third party, the party can only pray for actions mentioned in Order 39 Rule 2(a)

Also See

https://www.lawyersclubindia.com/articles/Whether-all-lis-pendens-transactions-are-invalid--9064.asp

https://www.lawyersclubindia.com/articles/Doctrine-of-Lis-Pendens-7568.asp

https://www.lawyersclubindia.com/experts/about-under-order-39-rule-2-A-C-P-C-76871.asp