Order 39 rule 2 a- fate of the suit

This query is : Resolved 

30 November 2011

Sir what would be the fate of suit if the proceeding of suit under Order 39 Rule 2 A is completed before the final disposal of main suit.

If the defendant is punished under Order 39 Rule 2 A but later he succeed in main suit ?

What should court do?

Please refer case law if any.

V R SHROFF (Expert)
30 November 2011

Dear Arvind,

Order 39 for [Temp or Per] ad interim Injunction has to be completed first, before proceeding for main suit.

The suit is filed by Plaintiff, so any order will be in Pt Favour.
As D did not ask for any relief, what do u expect from court in Favour of Def?? What court can do? Nothing !!

In such case, Def must file Counter Claim along with his Written Statement / Say, and Pay Court fees accordingly to get relief, compensation. and for any other relief from Hon Court, then only Def Succeed

Devajyoti Barman (Expert)
Click to Talk
30 November 2011

Well I slightly disagree.
The proceeding for such contempt as contemplated under order 39 rule 2A CPC is registered as separate Misc Case.
The Misc Case and the main suit would proceed simultaneously as per its respective merits.
Only because the plaintiff fails in his suit that does not mean that the defendant did not violate the interim order for which he may well be prosecuted as per the said provision.

ajay sethi (Expert)
Click to Talk
30 November 2011

In cases of disobedience or breach of injunction order
passed temporarily during the pendencey of a suit, either under Rule 1 or 2 of
Order 39, C.P.C. Action is contemplated by the very court which issues the
injunction order under Rule 2A of Order 39, C.P.C. It contemplates the forfeiture
of property as also putting of the person who commits breach into civil prison for a
period not exceeding three months.

final hearing of the suit will take its own time after completion of pleadings , leading of evidence by parties . if the defendant succeeds in suit the case of plaintiff will be dismissed .and no reliefs will be granted to plaintiff

Guest (Expert)
30 November 2011

compensation is the only remedy available to the defendant.

Guest (Expert)
30 November 2011

kindly see section 95 of C.P.C.

Rajeev Kumar (Expert)
30 November 2011

Agree with experts except shroff

prabhakar singh (Expert)
30 November 2011

Agree with experts except shroff is a right way to answer this query as so far led by experts.

raj kumar makkad (Expert)
30 November 2011

SUBJECT : Code of Civil Procedure, 1908
CCP 55/2000, 1141/99 and 82/1999 IN CS (OS) 635/1992
Judgment delivered on: 5.12.2007
- versus -
HALDIRAM BHUJIAWALA and ORS. ... Respondents

Kiran Kumar (Expert)
01 December 2011

well I endorse the opinion expressed by Mr. Barman

Mr. Makkad can you pls mention the citation of the judgment referred.

Advocate. Arunagiri (Expert)
01 December 2011

Contempt of court is a separate case.

Merits of the case is a different case.

Just because the def is punished for contempt of court, he will not loose his rights in contesting the main case.

The author says that defendant succeed in main suit, it means the plaint is dismissed.

No relief granted to the plaintiff, at the most the Defendant can get the cost (if there is no counter claim).

Advocate Bhartesh goyal (Expert)
01 December 2011

Mr Barman is absolutely right i completely agree with him.

Arvind Singh Chauhan (Querist)
01 December 2011

Thanks lot to all contributors.

prabhakar singh (Expert)
01 December 2011


CM (M) No. 923/2011, CAV No. 710/2011 and CM Nos. 14839-40/2011

Decided On: 09.08.2011

Appellants: Haldiram Bhujiawala and Anr.
Respondent: Anand Kumar Deepak Kumar and Ors.

Hon'ble Judges:
Indermeet Kaur, J.

For Appellant/Petitioner/Plaintiff: Neeraj Kishan Kaul, Sr. Adv., C. Mukund, Ashok Jain and Pankaj Jain, Advs.

For Respondents/Defendant: Sandeep Sethi, Sr. Adv., Mahendra Rana and Navneet Moni, Advs.

Subject: Miscellaneous

Catch Words

Mentioned IN


Indermeet Kaur, J.

1. The present petition has impugned the order dated 16.07.2011 vide which the application filed by the Defendant with a request to take on record his amended written statement and to frame an additional issue had been dismissed.

2. Record shows that this is a suit for permanent injunction filed by the Plaintiffs against the Defendants. The Plaintiffs and Defendants are both descendants of Ganga Bishan @ Haldiram Bhujiawala; the Plaintiffs claimed to be the registered proprietor of the trademark and trade-name Haldiram Bhujiawala; apprehending violation of this right, the Plaintiffs had filed the present suit seeking injunction against the Defendants. The Defendants had disputed the claim; pursuant to permission granted by the Court to amend their written statement, the defence of the Defendant in his amended written statement was that the deed of dissolution dated 16.11.1974 was a forged and fabricated document; this deed had been executed by the Defendant under pressure. Initially the amendment in the written statement had been permitted by the trial Judge; this order had been upset by the High Court; the Apex Court had reaffirmed the order of the trial Judge vide its order dated 01.10.2008. The impugned order has extracted the relevant portion of the order of the Apex Court wherein the Apex Court had inter-alia noted as under:

Proving of the document involves proving of execution of the document as well as proving of its contents (see AIR 1983 Bom 1). At the stage of proving the execution of the document, it would be open to the Appellants to cross-examine the witness on the question of execution as well as its content. In that regard, they can rely upon material in their possession and if the trial court finds that there is prima facie case of the forgery, it can certainly give an opportunity to the Defendant Appellants herein to file an additional written statement and it would be open to the trial court also to frame an additional issue at that stage.

3. Pursuant to the order of the Apex Court PW-1 had been examined in chief and cross-examined in part; at that stage i.e. in the midst of the cross-examination of PW-1 an application had been filed by Defendant No. 4 seeking to place on record the amended written statement along with a request for framing of an additional issue; the submission before the trial Court was that the cross-examination of PW-1 had revealed that the deed of dissolution dated 16.11.1974 was prima-facie a forged and fabricated document. This contention of Defendant No. 4/Petitioner had been rejected; trial Court had noted that the cross-examination of PW-1 is yet in progress; moreover other witnesses also have to be examined by the Plaintiffs to prove the contents and execution of the aforenoted dissolution deed which included the attesting witness, chartered accountant as also the principal borrower of the company. Today on oral query, learned Counsel for the Respondents/Plaintiff states that a total sum of 19 witnesses (as mentioned at Sr. No. 1 to 8, 12 to 20, 24 & 25 in the list of witnesses filed in November, 2008 before the trial Court) have to be examined to prove the contents and execution of the said dissolution deed. Admittedly PW-1 is yet under cross-examination. 3 The impugned order had examined the cross-examination of PW-1 and had noted that this cross-examination of PW-1 prima-facie did not evidence that the dissolution deed was forged or fabricated. This part of the order dated 16.07.2011 suffers from an illegality; admittedly the evidence to prove the dissolution deed was yet in progress; apart from PW-1 other witnesses had also to be examined. In this view of the matter, trial court giving its prima-facie finding on the dissolution deed without examining the entire gamut of the evidence shows his prejudice and bias. The observation of the trial court on this aspect i.e. its prima facie holding that dissolution deed dated 16.11.1974 was not forged or fabricated is set aside.

4. The Petitioner will lead his evidence on the proof of this dissolution deed to prove its contents and execution in terms of directions of the Apex Court dated 01.10.2008. After the entire evidence has been led on this issue, the trial Judge will afresh examine the entire gamut of evidence and deal with the application of the Petitioner as to whether the said dissolution deed dated 16.11.1974 is prima facie forged or fabricated and if so, whether the additional written statement and the consequent additional issue is required to be framed in this regard in view of directions of the Apex Court.

5. With this modification, this petition is disposed of.

Devajyoti Barman (Expert)
Click to Talk
03 December 2011

Well nice one..

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