Should Disobedience Of Injunction Be 'Wilful' To Invoke Order 39 Rule 2A CPC? Supreme Court Doubts Its Earlier Judgment

The Supreme Court doubted the correctness of its earlier judgment that had held that Order XXXIX, Rule 2-A of the Code of Civil Procedure requires not "mere disobedience" but "wilful disobedience.

A bench comprising Justices RF Nariman and BR Gavai made this observation in the Amazon-Future Retail case.

Rule 2-A is primarily intended to enforce orders passed under Order XXXIX, Rules 1 and 2, the bench observed adding that the judgment in U.C. Surendranath v. Mambally's Bakery requires review by a larger bench.

Order XXXIX CPC deals with grant of temporary injunctions. Rule 1 enlists the cases in which temporary injunction may be granted and Rule 2 is about granting injunction to restrain repetition or continuance of breach. Rule 2-A provides the consequence of disobedience or breach of injunction as follows: (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, of 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.

This provision was interpreted by the bench in this case as the Single Bench of the High Court, in an application filed by Amazon to enforce the award passed by Emergency Arbitrator, had issued a show-cause notice under Order XXXIX, Rule 2-A of the Code of Civil Procedure.

In this regard, the court noticed a judgment in Food Corporation of India v. Sukh Deo Prasad, (2009) 5 SCC 665 in which it was held that the power exercised by a court under Order 39 Rule 2-A of the Code is punitive in nature, akin to the power to punish for civil contempt under the Contempt of Courts Act, 1971. It also noted that in U.C. Surendranath v. Mambally's Bakery, (2019) 20 SCC 666, it was observed that for finding a person guilty of wilful disobedience of the order under Order 39 Rule 2-A CPC there has to be not mere "disobedience" but it should be a "wilful disobedience".

In U.C. Surendranath, the bench of Justices R. Banumathi and AS Bopanna had observed thus: "For finding a person guilty of willful disobedience of the order under XXXIX Rule 2A C.P.C. there has to be not mere "disobedience" but it should be a "willful disobedience". The allegation of willful disobedience being in the nature of criminal liability, the same has to be proved to the satisfaction of the court that the disobedience was not mere "disobedience" but a "willful disobedience".

Doubting the correctness of the interpretation made in U.C. Surendranath (supra), the bench observed: 

50. It is one thing to say that the power exercised by a court under Order XXXIX, Rule 2-A is punitive in nature and akin to the power to punish for civil contempt under the Contempt of Courts Act, 1971. It is quite another thing to say that Order XXXIX, Rule 2-A requires not "mere disobedience" but "wilful disobedience". We are prima facie of the view that the latter judgment in adding the word "wilful" into Order XXXIX, Rule 2-A is not quite correct and may require to be reviewed by a larger Bench. Suffice it to say that there is a vast difference between enforcement of orders passed under Order XXXIX, Rules 1 and 2 and orders made in contempt of court.

The court said that orders which are in contempt of court are made primarily to punish the offender by imposing a fine or a jail sentence or both, while Order XXXIX, Rule 2-A is primarily intended to enforce orders passed under Order XXXIX, Rules 1 and 2. For that purpose, civil courts are given vast powers which include the power to attach property, apart from passing orders of imprisonment, which are punitive in nature, the bench said.

"When an order for permanent injunction is to be enforced, Order XXI, Rule 32 provides for attachment and/or detention in a civil prison. Orders that are passed under Order XXI, Rule 32 are primarily intended to enforce injunction decrees by methods similar to those contained in Order XXXIX, Rule 2-A. This also shows the object of Order XXXIX, Rule 2-A is primarily to enforce orders of interim injunction", it  added.

Case: Amazon.com NV Investment Holdings LLC vs. Future Retail Limited ; CA 4492-4493 OF 2021
Coram:  Justices RF Nariman and BR Gavai 
Counsel: Sr. Adv Gopal Subramanium,  Sr. Adv Ranjit Kumar for Appellant, Sr. Adv Harish Salve, Sr. Adv . K.V. Viswanathan, Sr. Adv Vikram Nankani for respondent
Citation: LL 2021 SC 357

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