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PETITIONER:

TAYABBHAI M. BAGASARWALLA & ANOTHER

Vs.

RESPONDENT:

HIND RUBBER INDUSTRIES PRIVATE LIMITED ETC.

DATE OF JUDGMENT: 19/02/1997

BENCH:

B.P. JEEVAN REDDY, SUHAS C. SEN

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

B.P.JEEVAN REDDY,J.

A question of some general importance arises in these

appeals. The question is whether a person who disobeys an

interim injunction made by the Civil Court can be punished

under Rule 2-A of Order 39 of the Code of Civil Procedure

where it is ultimately found that the Civil Court had no

jurisdiction to entertain and try the suit? A learned Single

Judge of the Bombay High Court has opined, following certain

earlier decisions of that court, that he cannot be. The

reason given is: once it is found that the Civil Court has

no jurisdiction to entertain the said suit, all interim

orders made therein must also be deemed to be without

jurisdiction and, hence, a person flouting such interim

orders cannot be punished for their violation. The

correctness of the said vie is questioned in this appeal by

the plaintiff-appellant.

The first defendant, Hind Rubber Industries Private

Limited, is the tenant of the ground floor in the suit

house. The appellant is the landlord. On August 25, 1985 the

said building was destroyed by fire.

On February 11, 1991 the appellant filed a suit in the

City Civil Court, Bombay (Suit No.1407 of 1991) for a

perpetual injunction restraining the first defendant from

carrying on any construction in the suit premises. The

appellant's case was that inasmuch as the building, which

was the subject-matter of tenancy between the parties, has

been destroyed by fire, the tenancy of the first defendant

has come to an end. (The second respondent herein is the

Managing Director of the first respondent and was impleaded

as the second defendant in the suit.) The appellant applied

for a temporary injunction restraining the first defendant

from carrying on any construction. An ad-interim injunction

was granted by the Civil Court on February 15, 1991. The

first defendant applied for vacating the interim injunction

but his application was dismissed on July 24, 1991.

Meanwhile, on April 11, 1991 the plaintiff moved the

Civil Court for punishing the defendants under Order 39 Rule

2-A of the Civil Procedure Code for flouting the order of

interim injunction. While the said application was pending,

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the defendants moved an application under Section 9-A of the

Civil Court Procedure Code (Maharashtra Amendment) for

determining the issue of jurisdiction of the Civil Court to

entertain the said suit. On November 29, 1991 the Civil

Court affirmed the temporary injection and also held that it

did possess the jurisdiction to try the said suit.

On December 2, 1991, the Civil Court allowed the

application/motion filed by the appellant-landlord against

Defendants 1 and 2 under Order 39 Rule 2-A of the Civil

Procedure Code. It would be appropriate to notice the

finding recorded in the said order. The court found, on a

consideration of the material placed before it, "that the

construction is, to say the least massive. Some of the

photographs show construction materials being certain iron

girders, columns and beams being brought to the suit

premises. The columns which are erected are shown to be dug

from the ground itself right upto the first floor level.....

These photographs also show massive reconstruction work in

progress right from the ground floor. There can be

absolutely no doubt that the suit premises as they were on

the date of the injunction order and on the date of the

Architect's visit to the suit premises have been altered

beyond comprehension". The Civil Court also dealt with the

plea of the first defendant that the said construction has

not been put up by Defendants I and 2 but by other tenants

and, in particular; by Defendants 3 and 4. The court

rejected the said theory holding that the fourth respondent

has been put forward as a proxy who has voluntarily taken

the blame upon himself. The court found "the work carried

out......is after the injunction order and hence is in

breach of it. The Respondent No.4 has both callously and

impertinently come to the rescue of Respondent No.2". The

court finally found: "it can be seen from the photographs

that construction activities have been carried on undeterred

by the order of injunction. In fact, it has been continued

despite applications to set aside that order and despite

police warnings in respect of above..... The breach of the

order is more than substantiated. The disobedience of

Respondent No.2 acting on behalf of the first defendant is

clearly shown". Accordingly, the court committed the second

defendant-respondent to imprisonment for a period of one

month. The court made the following further significant

direction:

" Since the construction is clearly

both unauthorized and in breach of

the order of injunction and since

there are no daintier orders passed

in the first defendants suit No.

4597 of 1987 in the Chamber Summons

the 3rd defendants shall forthwith

take action under their notice

dated 23.5.91. The Court Receiver

has already been appointed Receiver

of the property in the plaintiff's

Notice of Motion No. 949 of 1991.

The Court Receiver shall take

possession of the suit premises and

seal the same until the 3rd

defendants act upon their notice

dated 23.5.91. The first defendant

shall pay costs of this Notice of

Motion fixed at Rs.1,000/-

condition precedent."

In July, 1992 the Defendants 1 and 2 filed appeals in

the Bombay High Court against the order making the interim

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injunction absolute pending the suit. The High Court stayed

the order punishing the defendant for contempt but did not

stay the order granting injunction in favour of the

plaintiffs. On July 15, 1994, the High Court appointed a

commissioner to ascertain whether the construction activity

was still being carried on by the defendants. On July 18,

1994 the Commissioner submitted his report stating that the

construction work was still being carried on in the

premises. After perusing the report of the Commissioner, the

High Court passed orders on July 28, 1994 vacating the order

dated July 30, 1992 (where under it had stayed the operation

of the order of the Civil Court punishing the defendant for

contempt). It would be relevant to notice the finding

recorded in this order:

"The Commissioner visited the site.

In spite of being aware of the

Order of this Court, the Appellants

did not permit the Commissioner to

inspect the site. The Commissioner

had to again has reported that the

construction work is going on. Thus

it is clear that in spite of an

Order which has not been stayed,

the Appellants are going on with

the construction. They are wilfully

violating Order of a Competent

Court. ....... Today neither the

Appellant nor their Advocates are

present. It is clear that the whole

idea is to while away time. In my

view, the Appellants who are

continuing to commit breaches of

Orders of Court, are not entitled

to any stay from this court.

Accordingly, Civil Appeal

No.6513 of 1991 is dismissed with

costs........

it is clarified that now the

Impugtned Order must be complied

with and Court receiver must take

possession. Court Receiver to act

on an ordinary copy of this Order

certified by Advocate for

Respondents 1 and 2 as true copy."

It appears that Defendants 1 and 2 applied for setting

aside the said order (dated July 28, 1994). It was dismissed

by the High Court on November 7, 1994. It would be relevant

to notice the contents of this order:

"Mr. Apte (counsel for the

plaintiff) submitted that the

appellant cannot be heard on this

Civil Application. He submitted

that they are in contempt of the

court inasmuch as they have

wilfully and blatantly violated the

injunction order. He submitted that

unless the contempt is first

purged, the Appellants cannot be

heard.

I see great substance in this

contention. The Applicants were

asked whether they were willing to

purge the contempt and restore the

premises to the state they were in

1991. The Applicants are not

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willing to do so. The whole attempt

has been to try and confuse. The

whole attempt has been to try and

justify. By the ex-parte order

dated 11.2.1991 as confirmed by the

order dated 21.11.1991, the

Applicants have been restrained

from carrying out any construction

work. As is set out hereafter, it

is clear to court that inspite of

this injunction order, construction

work has been carried on almost

continuously by the Appellants."

The learned Judge then referred in extenso to the

elaborate material placed before him and recorded the

finding that all these reports clearly indicate that there

is wilful and blatant breach of order of injunction passed

by the City Civil Court. " It is clear that in breach of the

injunction order, there has been construction. The breach is

wilful and blatant. The extent to which the Appellants have

gone is also indicated by the fact that, as stated above,

inspite of knowledge of order of this Court, the

Commissioner appointed by this court was initially

obstructed. To Court it is very clear that here is a party

who has absolutely no regard for the orders of the court.

Such a party must be made to bear the consequences of their

own action......To Court it is clear that the applicants

have chosen to wilfully and blatantly flouted the order of

injunction. It may be that the Applicants have a very good

case. However, no matter how good a case a party has, in my

view, it is not open to a party to flout orders of courts.

If a party wilfully flouts an order of the court then such

party can expect no equitable relief from the court. Such a

party must be made to bear the consequences of his action.

Otherwise all parties will ignore or flout orders of courts.

When caught out they would then throw themselves at the

mercy of the court. In my view, in cases like this, the

party in default must not be allowed to enjoy the benefits

of his action. To appoint Applicants as Agent of the Court

Receiver would amount to giving them benefit of their wrong.

In my view, the order dated 28.7.1991 must be and is

sustained. The application to appoint the Applicants as

agents of Court Receiver is rejected."

On July 3, 1996 civil revision application No.888 of

1991 preferred by the defendants against the order of the

Civil court (holding that it had jurisdiction to try the

suit) was allowed. The High Court held that the Bombay City

Civil Court had no jurisdiction to entertain the said suit

in view of section 28 of the Bombay Rent Act. Disagreeing

with the decision of the Kerala High Court, the Bombay Court

held that the destruction of the house by fire does not put

an end to the tenancy of the defendants. (The judgment of

the High Court is reported in Special Land Execution

Officer, Bombay & Bombay Sabarban District Municipal

Corporation v. Vishanji Virji Mepani & Another [AIR 1996

Bombay 369). The plaintiff (landlord) filed a Special Leave

Petition against the said order but it was dismissed by this

court on September 3, 1996. While dismissing the Special

Leave Petition, this Court directed that the tenant shall

make construction/alteration, if any, only in accordance

with law and also with the prior permission of the Bombay

Municipal Corporation. [In this order, it was mentioned that

the tenant is in this possession of the premises but this

portion was deleted later by order dated 1.10.1996.]

In the light of and on the basis of the decision of the

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Bombay High Court dated 3.7.96 in Vishanji Virji Mepani, the

first defendant applied to the High Court for permission to

occupy and carry on his business in the suit premises as

before. It asked for a direction to the Court Receiver to

deliver possession of the suit premises to it. By order

dated 13.9.96, the High Court held that the first defendant

is entitled to the relief asked for by him. After referring

to the judgment of the High Court in Vishanji Virji Mepani

and to the orders of this Court in the Special Leave

Petition, the High Court observed: "therefore the view taken

by this Court that city Civil Court has no jurisdiction to

entertain this suit filed by Respondents came to be

confirmed. The petitioner herein has now prayed that it may

be allowed to occupy and carry on business in the premises

which were occupied by it without paying any payment or

royalty and security. If the City Civil Court is having no

jurisdiction to decide the suit itself, all the orders

passed therein come to an end and are required to be treated

as non-est. The learned counsel for Respondents tried to

point out that Petitioner is guilty of violating some

interim or interim orders passed in the suit and contempt

proceedings in that respect are pending. But that is

immaterial and irrelevant for consideration of the relief

prayed by Petitioner, particularly when the original orders

passed were without jurisdiction. Hence, in my opinion (a)

deserves to be granted which runs as follows: `(a) the

Petitioner/Appellant be allowed to occupy and to carry out

business in their premises as before, without royalty and

security' Civil Application granted in terms of prayer (a).

The Receiver to act on the basis of the authenticated copy

by the Sheristedar of this Court. The learned Counsel for

Respondents prays for stay of the Order. Stay refused."

The plaintiffs questioned the aforesaid order dated

13/9/96 by way of Special Leave Petition which was

entertained by this Court by its order dated October 1,

1996. Special leave was granted. This Court directed that

"the respondents shall not be entitled to put in possession

of the premises till the appeal is decided by the High

Court. We request the High Court to dispose of the appeal or

case on November 1996." [The respondents in the said quote

means the defendant herein and the appeal referred to

therein is the appeal preferred by the Defendants 1 and 2

against the order dated 2.12.1991 holding Defendants No. 2

guilty of violating the temporary injunction and sentencing

him to one month's imprisonment under Rule 2-A of Order 39

of the Civil Procedure Code.]

Pursuant to the request of this Court aforementioned,

the Bombay High Court has disposed of the aforementioned

appeal (Appeal from Order No.1407 of 1991) on November 1,

1996. The High Court has allowed the appeal holding that

inasmuch as the Bombay City Civil Court is found to have no

jurisdiction to entertain the suit, Defendant 1 and 2 cannot

be punished for disobeying the interim orders made in such a

suit, for the reason that the said interim orders made in

such a suit, for the reason that the said interim order must

equally be held to be without jurisdiction. This appeal is

preferred against the said order of the High Court.

Mr. Soli Sorabjee, learned counsel for the appellant-

plaintiff [landlord of the suit premises] assailed the

impugned order of the High Court both on principle as well

as with reference to Section 9-A of the Civil Procedure Code

[Maharashtra Amendment]. Learned counsel placed reliance

upon certain decisions, which we shall refer at the

appropriate stage. Sri Puri, learned counsel for the

defendants, however, supported the reasoning and conclusion

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arrived at by the High Court. The learned counsel, supported

by Sri V.A.Mohta, submitted that although defendants argued

before the learned Single Judge [who passed the impugned

order] that the finding of fact recorded by Civil Court

(that Defendant 1 and 2 have violated the order of

injunction issued by the court) is not sustainable in the

facts and circumstances of the case, the learned Judge has

not chosen to deal with the same probably for the reason

that he has allowed their appeal on the question of law.

Counsel submitted that Defendants 1 and 2 have not carried

out any construction in the suit premises after the grant of

injunction by the Civil Court and that whatever construction

was done was done earlier to the grant of injunction by the

Civil court.

The first and foremost question in this appeal is

whether the High Court was right in holding that since it

has been found ultimately that the Civil Court had no

jurisdiction to entertain the suit, the interim orders made

therein are non-est and hence Defendants 1 and 2 cannot be

punished for their violation even if they had flouted and

disobeyed the said interim orders when they were in force.

We are of the considered opinion that the High Court was not

right in saying so. The landlord-plaintiff came forward with

the suit alleging that by virtue of the fire resulting in

the destruction of the suit house, the relationship of

landlord and tenant between the parties has come to an end

and, therefore, he requested the court to injunct the

defendants from carrying on any construction on the suit

premises without their permission and without obtaining the

sanction from Municipal Corporation. The defendants

questioned the jurisdiction of the Civil Court to entertain

the suit. According to them, the building was not totally

destroyed and that, in any event, the relationship of

landlord and tenant has not came to an end on that account.

The defendants' plea was rejected by the Civil Court. It

held that it did have the jurisdiction to try the said suit.

On appeal, however, the High Court, disagreeing with the

decision of another High court, held that relationship of

landlord and tenant has not come to an end for the reason

suggested by the plaintiff and that the Civil Court had no

jurisdiction to entertain the suit in view of Section 28 of

Bombay Rent Act. All this took about six years, i.e., from

1991 to 1996. It is not suggested nor can it be suggested

that the suit was filed by the plaintiff in the City Civil

Court only with a view to avoid the Rent Control Court nor

can it be suggested that they approached the Civil Court

knowing full well that the Civil Court had no jurisdiction

to try that suit. It is evident that they approached the

Civil Court bonafide, thinking that it had jurisdiction to

try their suit. They were confirmed in their view by the

Civil Court. It is true that ultimately the High Court found

against them but even there, it must be noticed, they did so

disagreeing with a decision of the Kerala High Court. It,

therefore, cannot be said that the plaintiffs did not

approach the Civil Court bonafide.

The next thing to be noticed is that certain interim

orders were asked for and were granted by the Civil Court

during this period. Would it be right to say that violation

of and disobedience to the said orders of injunction is no

punishable because it has been found later that the Civil

Court had no jurisdiction to entertain the suit. Mr.Sorabjee

suggests that saying so would be subversive of the Rule of

Law and would seriously erode the majesty and dignity of the

court. It would mean, suggests learned counsel, that it

would be open to the defendants-respondents to decide for

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themselves whether the order was with or without

jurisdiction and act upon that belief. This can never be,

says the learned counsel. He further suggests that if any

party thinks that an order made by the Civil Court is

without jurisdiction or is contrary to law, the appropriate

course open to him is to approach that court with the plea

and ask for vacating the order. But it is no open to him to

flout the said order. But it is no open to him to flout the

said order assuming that the order is without jurisdiction.

It is this principle which has been recognised and

incorporation in Section 9-A of Civil Procedure Code

(inserted by Maharashtra Amendment Act No. 65 of 1977), says

Mr.Sorabjee. Section 9-A reads as follows:

"9-A. Where by an application for

interim relief is sought or is

sought to be set aside in any suit

and objection to jurisdiction is

taken, such issue to be decided by

the Court as preliminary issue at

hearing of the application.

(1) If, at the hearing of any

application of granting or setting

aside an order granted any interim

relief, whether by way of

injunction, appointment of a

receiver of otherwise, made in any

suit, an objection for the

jurisdiction of the court to

entertain such suit is taken by any

of the parties to the suit, the

Court shall proceed to determine at

the hearing of such application

the issue as to the jurisdiction as

a preliminary issue before granting

the interim relief. Any such

application shall be heard any

disposed of by the Court as

expeditiously as possible and shall

not in any case be adjourned to the

hearing of the suit.

(2) Notwithstanding anything

contained in sub-section (1), at

the hearing of any such

application, the court may grant

such interim relief as it may

consider necessary pending

determination by it of the

preliminary issue to the

jurisdiction."

According to this section if an objection is raised to

the jurisdiction of the court at the hearing of an

application for grant of, or for vacating, interim relief,

the court should determine that issue in the first instance

as a preliminary issue before granted or setting aside the

relief already granted. An application raising objection to

the jurisdiction to the court is directed to be heard with

all expedition. Sub-rule (2), however, says that the command

in sub-rule (1) does not preclude the court from granting

such interim relief as it may consider necessary pending the

decision on the question of jurisdiction. In our opinion,

the provision merely states the obvious. It makes explicit

what is implicit in law. Just because an objection to the

jurisdiction is raised, the court does not become helpless

forthwith - nor does it become incompetent to grant the

interim relief. It can. At the same time, it should also

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decide the objection to jurisdiction at the earlier possible

moment. This is the general principle and this is what

Section 9-A reiterates. Takes this very case. The plaintiff

asked for temporary injunction. An ad-interim injunction was

granted. Then the defendants came forward objecting to the

grant of injunction and also raising an objection to the

jurisdiction of the court. The court over-ruled the

objection as to jurisdiction and made the interim injunction

absolute. The defendants filed an appeal against the

decision on the question of jurisdiction. While that appeal

was pending, several other interim orders were passed both

by the Civil Court as well as by the High Court. Ultimately,

no doubt, High Court has found that the Civil Court had no

jurisdiction of entertain the suit but all this took about

six years. Can it be said that orders passed by the Civil

Court and the High court during this period of six years

were all non-est and that it is open to the defendants to

flout them merrily, without fear of any consequence.

Admittedly, this could not be done until the High Court's

decision on the question of jurisdiction. The question is

whether the said decision of the High Court means that no

person can be punished for flouting or disobeying the

interim/interlocutory orders while they were in force, i.e.,

for violations and disobedience committed prior to the

decision of the High Court on the question of jurisdiction.

Holding that by virtue of the said decision of the High

Court [on the question of jurisdiction], on one can be

punished thereafter for disobedience or violation of the

interim orders committed prior to the said decision of the

High Court, would indeed be subversive of rule of law and

would seriously erode the dignity and the authority of the

courts. We must repeat that this is not even a case where a

suit was filed in wrong court knowingly or only with a view

to snatch an interim order. As pointed out hereinabove, the

suit was filed in the Civil Court bonafide. We are of the

opinion that in such a case the defendants cannot escape the

consequences of their disobedience and violation of the

interim injunction committed by them prior to the High

Court's decision on the question of jurisdiction.

In Shiv Chander Kapoor v. Amar Bose [1990 (1) SCC 234],

J.S.Verma, J. speaking for a 3-Judge Bench observed thus,

with reference to the statement of law at pp.351-353 of

Wade's Administrative Law [6th Edn.]: "`void' is meaningless

in an absolute sense; and `unless the necessary proceeding

are taken at law to establish the cause of invalidity and to

get it quashed or otherwise upset, it will remain as

effective for its ostensible purpose as the most impeccable

of orders'. In the words of Lord Diplock, `the order would

be presumed to be valid unless the presumption was rebutted

in competent legal proceedings by a party entitled to sue'."

To the same effect is the opinion of Jagannatha Shetty,

J. in State of Punjab & Ors. v. Gurdev Singh [1991 (4) SCC

1].

"If an Act is void or ultra vires

it is enough for the court to

declare it so and it collapses

automatically. It need not be set

aside. The aggrieved party can

simply seek a declaration that it

is void and not binding upon him. A

declaration merely declares the

existing state of affairs and does

no `quash' so as to produce a new

state of affairs.

But nonetheless the impugned

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dismissal order has at least

defacto operation unless and until

it is declared to be void or

nullity by a competent body or

court. In Smith v. East Elloe Rural

District Council, 1956 A (736) 769:

(1956) 1 All ER 855, 871) Lord

Radcliffe observed: `An order, even

if not made in good faith, is still

an act capable of legal

consequences. It bears no brand of

invalidity on its forehead. Unless

the necessary proceedings are taken

at law to establish the cause of

invalidity and to get it quash or

otherwise upset, it will remain as

effective for its ostensible

purpose as the most impeccable of

orders.'

Apropos to this principle,

Prof. Wade states: (See Wade:

Administrative Law, 6th edn.

p.352)' the principle must be

equally true even where the `brand'

of invalidity is plainly visible;

for there also the order can

effectively be resisted in law only

by obtaining the decision of the

court. Prof. Wade sums up these

principles: (Ibid)

`The truth of the matter is

that the court will invalidate an

order only if the right remedy is

sought by the right person in the

right proceedings and

circumstances. The order may be

hypothetically a nullity, but the

court may refuse to quash it

because of the plaintiff's lack of

standing, because the does not

deserve a discretionary remedy,

because he has waived his rights,

or fore some other legal reason. In

any such case, the `void' order

remains effective and is, in

reality, valid. It follows that an

order may be void for one purpose

that an order may be void for one

purpose and valid for another; and

that it may be void against one

person but valid against another."

We may also refer to yet another decision of this Court

in Ravi S.Naik v. Union of India [1994 Suppl. (2) SCC 641 at

662] S.C. Agrawal, J., speaking for the Division Bench,

observed:

" 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 still

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it is set aside by a competent

court and it cannot be ignored on

the ground that the court which

passed the order has no

jurisdiction to pass the same.

Moreover the stay order was passed

by the High Court which is 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 in entitled to

determine for itself questions

about its own jurisdiction. (See:

Special Reference No.1 of 1964;

(1967) 3 SCR 84.)"

The Allahabad and Madras High Courts have also taken

the same view. In State of U.P. V. Ratan Shukla [AIR 1956

All. 258], the Allahabad High Court observed:

"The fact that Shri S.M. Ifrahim

had no jurisdiction to hear the

appeals, however, does not mean

that no contempt could be committed

of him. So long as he was seized of

the appeals, no contempt could be

committed of him.

It is not the law that a court

dealing with a matter which is

beyond its jurisdiction can be

contemned with impunity or that the

liability of a person to be

punished for contempt of a court

depends upon whether the court was

acting within its jurisdiction at

the time when it is alleged to have

been contemned. the opposite-

party, therefore, cannot claim that

he is not guilty of contempt

because Shri S.M. Ifrahim had no

jurisdiction to decide the

appeals."

In Nalla Senapati Sarkarai Mandariar Pallayakottai v.

Shri Ambal Mills Pvt. Ltd. & Ors. [AIR 1966 Mad.53] similar

view has been expressed - without of course deciding the

question finally. Quoting Oswald on Contempt (1910 Edn. at

106), the court observed "an order irregularly obtained

cannot be treated as a nullity, but must be implicitly

obeyed, until by a proper application, it is discharged."

In D.M. Samyulla v. Commissioner, Corporation of the

City of Bangalore & Ors. [1991 Karnataka Law Journey 352],

the Karnataka High Court stated the law in the following

terms, with reference to the decision of the Court of Appeal

in Hadkinson v. Hadkinson: "the principle laid down in the

said decision is, 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".

In Hadkinson v. Hadkinson [1952 All. E.R.567] the Court

of Appeal held:

"It is the plain and unqualified

obligation of every person against,

or in respect of whom an order is

made by a court of competent

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jurisdiction to obey it unless and

until that order is discharged. The

uncompromising nature of this

obligation is shown by the fact

that it extends even to cases where

the person affected by an order

believes it to be irregular or even

void. Lord Cottenham, L.C. said in

Chuck v. Cremer: (1) (1 Coop. Temp.

Cott.342).

`A party, who knows of an order,

whether null or valid, regular or

irregular, cannot be permitted to

disobey it....It would be most

dangerous to hold that the suitors,

or their solicitors, could

themselves judge whether an order

was null or valid-whether it was

regular or irregular. that they

should come to the court and not

take upon themselves to determine

such a question. That the course of

a party knowing of an order, which

was null or irregular, and who

might be affected by it, was plain.

He should apply to the court that

it might be discharged. As long as

it existed it must not be

disobeyed.'

Such being the nature of this

obligation, two consequences will

in general follow from its breach.

The first is that anyone who

disobeys an order of the court (and

I am not now considering

disobedience of orders relating

merely to matters of procedure) is

in contempt and may be punished by

committal or attachment or

otherwise. The second is that no

application to the court by such a

person will be entertained until he

has purged himself of his

contempt."

In United States of America v. John F.Shipp et al [51

L.Ed. 319], the following statement by Holmes,J. occurs:

"It has been held, it is true, that

orders made by a court having no

jurisdiction to make them may be

disregarded without liability to

process for contempt: Re Sawyer,

124 U.S. 200, 31 L. ed.402, 8 Sup.

Ct. Rep.482; Ex Parte Fisk. 113

U.S. 713, 28 L.ed. 1117, 5 Sup. Ct.

Rep. 724; Ex parte Rowland, 104

U.S. 604, 26 L. ed. 861. But even

if the circuit court had no

jurisdiction to entertain Johnson's

petition , and if this court had no

jurisdiction of the appeal, court

and this court alone, could decide

that such was the law. It and it

alone necessarily had jurisdiction

to decide whether the case was

properly before it. On that

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question, atleast, it was its duty

to permit argument and to take the

time required for such

consideration as it might need. See

Mansfield, C. & L.M.R. Co. v. Swan,

111 U.S.379, 387, 278 L. ed. 462,

465, 4 Sup. Ct. Rep. 510. Until its

judgment declining jurisdiction

should be announced, it had

authority, from the necessity of

the case to make orders to preserve

the existing conditions and the

subject of the petition, just as

the State court was bound to

refrain from further proceedings

until the same time. Rev. Stat. 8

766; act of March 3; 1893 chap.

226, 27 Stat. at L. 751, u.s. Comp.

Stat. 1901. p.597."

The decision in Shipp has been followed in several

later decision of the American Supreme Court.

A contrary opinion has, however, been expressed in two

decision of the Bombay High Court. The first decision is of

a learned Single Judge in Dwarkadas Mulji v. Shadilal

Laxmidas (1980 MLJ 404). It was held by the learned Judge

that where the court has no jurisdiction to try a suit, no

person can be punished for flouting the interim orders made

in such a suit. It is significant that no reference was made

to Section 9-A of the Civil Procedure Code in the said

decision. In support of his view, the learned Judge relied

upon certain United States' decisions and the statement of

law in Corpus Juris Secondum, Vol.XVII, Para 19. Sri

Sorabjee says that the United States' decisions cited do not

support the proposition of the learned Judge. We do not,

however, wish to go into the said controversy in view of

Section 9-A of the Civil Procedure Code and the correct

principle of law, as we understand it. The above decision

has been distinguished by another learned Single Judge in

Kapil v. S.Anthony [1984 (2) Bombay Case Reporter 199]

precisely on this ground, viz., with reference to Section

9-A Civil Procedure Code. The learned Judge has opined that

by virtue of Section 9-A, the court does possess the

jurisdiction to pass interim orders and they have to be

obeyed by the person concerned even though ultimately it may

be found that the court had no jurisdiction to entertain the

said suit. The other decision of the Bombay High Court,

which is also strongly relied upon in the order under

appeal, is of the Division Bench in Vivekanand Atmaram

Chitale and another v. Vidyavardhini Sabha and others [1984

MLJ 520]. That was a case where the Revenue Tribunal had no

jurisdiction to pass any interim order in an appeal

preferred under Section 71 of the Bombay Public Trust Act,

1950. The Tribunal, however, passed an interim order

restraining the holding of a meeting. The persons, against

whom the order was issued, knowingly and deliberately

disobeyed the order stating that the order against them was

without jurisdiction. They were proceeded against for

contempt. The Division Bench affirmed the general principle

with reference to this Court's decision in Kiran Singh v.

Chaman Paswan [A.I.R. 1954 S.C. 340] that a decree passed by

a court without jurisdiction is a nullity and that its

invalidity can be set up whenever and wherever it is sought

to be enforced or relied upon-even at the stage of execution

and even in collateral proceedings and then relaying upon

the decision of the learned Single Judge in Dwarka Dass

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Mulji v,. Shadilal Laxmidas, the Bench held thus:

"In Dwarkadas Mulji and others v.

Shantilal Laxmidas and another

Sawant J. elaborately considered

the question whether the breach of

an undertaking given by a party in

a proceeding, which is ab initio

void for lack of jurisdiction,

amounts to contempt. While

answering the question in the

negative, the learned Judge rightly

distinguished the decision of the

Allahabad High Court in State of

U.P. v. Ratan Shukla [A.I.R. 1956

All. 258] and placed reliance upon

the decision of the Punjab High

Court in Narayan Singh v. S.

Hardayal Singh [A.I.R. 1958

Punj.180]. He also quoted American

law on the subject as found in

Corpus Juris Secondum Vol. XVII

para 19. The relevant quotation is

as follows:-

"Disobedience of, or resistance to,

a void mandate, order, judgment or

decree or one issued by a Court

without jurisdiction of the subject

matter and parties litigant, is no

contempt and where the Court has no

waiver can cut off the rights of

the party to attack its validity."

In support of the proposition,

which the learned Judge laid down

he also placed reliance on the

decisions of the Supreme Court of

the United States in Ex Parte

Rowland [1881 U.S.S.C.R. 26 L Ed.

604], Ex Parte Fisk [1884

U.S.S.C.R. 28 L Ed. 117], Ex Parte

Sawyer [1887 U.S.S.C.R. 32 L Ed.

2001], United States of America v.

United Mine Workers of America

[1946 U.S.S.C.R. 91 L Ed.884] and

Joseph F. Maggio v. Raymond Zeitz

[1947 U.S.S.C.R. 92 L Ed.476], in

which unanimous view was taken that

there is no contempt when breach is

of the order passed in the

proceedings, which are ab initio

void for lack of jurisdiction from

their very inception."

It is necessary to point out that the order violated in

Vivekanand Atmaram was an order of the Revenue Tribunal and

not of a civil court. Probably, for that reason, the Bench

has not referred to Section 9-A of the Civil Procedure Code.

Be that as it may, for the reasons given by us hereinbefore

and in the light of the law laid down in the decisions of

this Court referred to above, it must be held that the

decision of the Bombay High Court in Dwarkadas Mulji was

wrongly decided and that the decision in Vivekanand Atmaram

Chitale must be held to be in applicable to the orders of a

civil court.

The learned counsel for the Defendants 1 and 2

submitted that this is not a proceeding for contempt but a

proceeding under Rule 2-A of Order 39 of the Civil Procedure

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Code. Learned counsel submitted that proceedings under Order

39 Rule 2-A are a part of the coercive process to secure

obedience to its injunction and that once it is found that

the Court has no jurisdiction, question of securing

obedience to its orders any further does not arise. Learned

counsel also submitted that enforcing the interim order

after it is found that the Court had no jurisdiction to try

the said suit would not only be unjust and illegal but would

also reflect adversely upon the dignity and authority of the

Court. It is also suggested that the plaintiff had

instituted the present suit in the Civil Court knowing full

well that it had no jurisdiction to try it . It is not

possible to agree with any of these submission not only on

principle but also in the light of the specific provision

contained in Section 9-A of Code of Civil Procedure

(Maharashtra Amendment). In the light of the said provision,

it would not be right to say that the Civil Court had no

jurisdiction to pass interim order or interim injunction, as

the case may be, pending decision on the question of

jurisdiction. The orders made were within the jurisdiction

of the Court and once this is so, they have to be obeyed and

implemented. It is not as if the defendants are being sought

to be punished for violations committed after the decision

of the High Court on the question of jurisdiction of the

Civil Court. Here the defendants are sought to be punished

for the disobedience and violation of the order of

injunction committed before the decision of the High Court

in Vishanji Virji Mepani. According to Section 9-A, the

Civil Court- and the High Court - did have the power to pass

interim orders until that decision. If they had that power

they must also have the power to enforce them. In the light

of the said provision, it cannot also be held that those

orders could be enforced only till the said decision but not

thereafter. The said decision does not render them (the

interim orders passed meanwhile) either non-est or without

jurisdiction. Punishing the defendants for violation of the

said order committed before the said decision (Vishanji

Virji Mepani) does not amount, in any event, to enforcing

them after the said decision. Only the orders are being

passed now. The violations are those committed before the

said decision.

The correct principle, therefore, is the one recognised

and reiterated in Section 9-A - to wit, where an objection

to jurisdiction of a civil court is raised to entertain a

suit and to pass any interim orders therein, the Court

should decide the question of jurisdiction in the first

instance but that does not mean that pending the decision on

the question of jurisdiction, the Court has no jurisdiction

to pass interim orders as may be called for in the facts and

circumstances of the case. 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

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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.

The learned counsel for Defendants 1 and 2 then argued

that Defendants 1 and 2 are not guilty of disobeying and

violating the order of injunction and that they did not

carry on any construction activity after the grant of

interim injunction by the Civil Court. The judgment under

appeal does not refer to any such contention being advanced

by Defendants 1 and 2 before the High Court. the impugned

judgment under appeal deals only with the question of law.

It is true that this factual submission was urged before the

Civil Court. the contention was that the construction

complained of was not carried on by Defendants 1 and 2 but

by other defendants and in particular by defendant No.4. The

Civil Court has dealt with this plea elaborately and has

rejected it . The Civil Court has observed that the 4th

defendant has come forward gratuitously to take the blame

upon himself, with a view to save the second defendant and

that his plea is totally unacceptable. Moreover, the orders

of the High Court, referred to above, which are based upon

the reports of the Court Receiver, Police and Municipal

records do clearly show that it was the second defendant

who, acting on behalf of the first defendant, had carried

out the construction complained of and had even refused to

purge himself of the contempt when given an opportunity to

do so in the High Court. In the face of the consistent and

repeated findings of the Civil Court and the High Court-

which we have referred to in extenso hereinabove - and in

the absence of any indication from the impugned judgment

that this factual question was urged by Defendants 1 and 2

before it - we are not inclined to accede to their plea that

the matter should be remitted to the High Court for deciding

the factual issue viz., whether Defendant 1 and 2 have in

fact violated the other of injunction or not. In our

opinion, it would be an unnecessary and empty formality.

Accordingly, we allow the appeals and set aside the

judgment of the High Court dated November 1, 1996 in

A.O.No.1407 of 1991.

It is brought to our notice that respondents 4 and 5 in

these appeals (Ashok Temkar and Kiran Patil) also claimed to

be tenants of certain portions in the said building. Their

claims have not been investigated by the High Court,

probably in view of the finding on the aforesaid question of

law. the matters shall go back to the High Court to the

extent of the said respondents (i.e. other than Defendants 1

and 2) to determine whether any or both of them are guilty

of violating the injunction order.

Insofar as Defendant No. 2 (Sri K.S. Jhunjhunwala) is

concerned, the order of the Civil Court holding him guilty

of contempt and sentencing him to one month's imprisonment

is affirmed.

The appeals are allowed in the above terms. No costs.