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1899.May 23and 31.
SILVA v. APPUHAMY.D. 0., Kegalla, 1,104.
Injunction—Ordinance No. I oj 1S89, s. 89, and Civil Procedure Code, s. 662—Irregularity in issue of injunction—Disobedience—Contempt of Court.
Per Lawrie, J.—An injunction granted by a competent Court mustbe obeyed by the party whom it affects until it is discharged, anddisobedienco thereto is punishable as for a contempt of Court, notwith-standing that it was irregularly issued.
TN this case of rci vindiefttio plaintiff prayed in his plaint, interalia, that the defendants might be restrained from miningfor plumbago in the land claimed by plaintiff, and from removingor otherwise disposing of the said plumbago therefrom. Theinjunction was granted as a matter of course on the 14th March,1891). A fortnight afterwards the plaintiff swore an artidvait tothe effect that, in disobedience and contempt of the said injunctionduly served on the defendants, they were still mining for plum-bago and removing and selling the same. Thereupon theDistrict Judge charged the defendants with having on the lflthday of March, 189!). and thereafter, in contempt and disobedienceof the injunction issued as already stated, gone on mining forplumbago on the land in question, and removing and selling the
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same. The first accused pleaded guilty, and the rest were, afterevidence taken, found guilty, and all were sentenced to threemonths’ simple imprisonment.
Doinhorst (with him Rudra, Bawa, and Penis), for appel-lants.—The injunction was improperly issued. Under section 87of Ordinance No. 1 of 1889 an affidavit showing sufficient groundsis necessary; and section 662 of the Civil Procedure Code pro-vides that, except in cases where an injunction is prayed for ina plaint in any action, every application for an injunction shallbe by petition and shall be accompanied by an affidavit settingforth the facts on which the application is based. The plaint here,in which the injunction was prayed for, was not supported by anaffidavit, nor was there any petition independently praying forinjunction. The accused were not bound to heed such aninformally issued injunction. (Counsel argued on the meritsalso.)
J. C. Pereira (and E. Jayawardena), for respondent.—Though informally issued, it was the duty of the appellants toobey the injunction so long as it was not recalled or discharged.(Counsel replied also on the merits.)
Cur. adv. vult.
31st May, 1899. Lawrie, J.—
The appellants appeal from a sentence of imprisonment ofthree months passed upon them for disobeying an injunction ofthe Court below, which was in effect restraining them from takingand removing plumbago from the land in dispute. It was soughtto be made out that the injunction was improperly issued, in thatit lacked the support of material required by the Courts Ordinanceand the Civil Procedure Code of 1889. Assume it, for instanceto come under section 87, sub-section (1), of the Courts Ordinance.Then the Court can only grant an injunction where it appears inthe plaint that the plaintiff demands and is entitled to a judgmentagainst the defendant restraining the continuance of an injuriousact. In the plaint in this action it does not so appear. Assumeit, on the other hand, to come under sub-section (2) of that section.Then there must be a petition for an injunction, but no petitionexists here.
The injunction having nothing to support it is ineffectual, ifnot for all purposes, at least for the. purpose of bringing a partywho disobeys it to punishment, for such contempt of Court ispunishable like an offence under the Penal Code with imprison-ment of either kind or a fine. It entails greater pains and
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penalties here than it does in England. Section 663 of the Pro-cedure Code of 1889 was pressed upon me. That enacts “ that an“ injunction granted by the Court on any such application may“ in case of disobedience be enforced by the punishment of the“ offender as for a contempt of the Court.”
From this it was argued that an injunction granted by theCourt without a petition could not in case of disobedience be soenforced. I have little doubt, 'however, that an injunctiongranted by a competent Court must be obeyed by the party whomit affects until it is discharged, and that disobedience can bepunished as for a contempt of Court, notwithstanding irregularityin the procedure.
I may say that I think this plaint just comes within sub-section(1) of “ The Courts Ordinance, 1889,” for the action is to vindicatea land in the possession of defendants, who are charged withdoing acts injurious to the plaintiff’s interest, and relief byinjunction is primA facie made out (subject to what I am aboutto say), and it is asked for in the plaint. Not that I myselfshould have granted an injunction without notice, having regardto the imperfect averments in the plaint of title to an undividedmoiety of the land said to have been conveyed to the plaintiff byMagris and Gregoris in February and March, 1899, and havingregard to the plaintiff’s admission that the defendants have beenin possession of the land since September, 1898. The title to theother half was made to appear, but just so and no more. I wouldadd. that these interlocutory injunctions should not be grantedwithout very good cause when, as here, they may involve injuryto persons who are no parties to the cause.
[Then his Lordship considered the merits of the case and setaside the conviction of all the appellants except the first andfifth.]
SILVA v. APPUHAMY