Exploring the scope of Order XXXIX Rule 2A of the CPC: Whether punitive in nature or an enforcement mechanism?

The Delhi High Court, while dealing with the disobedience of an order granting temporary injunction in a trademark infringement suit, dealt elaborately with the scope of Order XXXIX Rule 2A of the Code of Civil Procedure, 1908 (CPC).

The lis was primarily concerned with the infringement of trademarks of luxury retailer Louis Vuitton. The plaintiff (Louis Vuitton Malletier) had obtained an interim order against the defendant for offering for sale and marketing counterfeit goods. In spite of the interim order being communicated to the defendant, they did not desist from the proscribed acts as delineated in the interim order. Upon an application moved under O. XXXIX R. 2A of the CPC, the Court dealt with the contours and scope of O. XXXIX R. 2A while disposing of the application.

This article deals with the question - whether O. XXXIX R. 2A is punitive in nature or the legislative intent is to enforce compliance with an order passed by a civil court?

The first issue arising with regard to O. XXXIX R. 2A is whether it can be distinguished from the power of a court to punish a person for committing contempt. The Contempt of Courts Act, 1971 (CCA) is a piece of legislation which essentially provides punitive measures to deal with contempt to uphold the majesty of law and reinforce the faith of people in the judicial institution. A bare perusal of the Statement of Objects and Reasons of the CCA clearly demonstrates that it is a punitive legislation.

In stark contrast to it, the CPC is a procedural law complementing civil substantive law, and often romanticized as a handmaid of justice. Therefore, even though O. XXXIX R. 2A of the CPC and the CCA may deal with the issue of disobedience/wilful disobedience (at this stage I am not venturing into the dialectical hair-splitting of disobedience/wilful disobedience), the raison d’etre for the existence of both these laws is fundamentally different. Therefore, conflation of both these laws with an aim to punish the non-compliant party would be jurisprudentially incorrect. Even though simultaneous provisions may exist in two different laws to deal with non-compliance of an order, those provisions have to be read and construed in light of the purpose and object for legislating those provisions.

O. XXXIX R. 2A provides for two contingencies – when an order is not complied with by a party and the ensuing recourse in case of such non-compliance; and when an order is not complied by a party and the non-compliance has not ceased. In the case of non-compliance of an order, a court is empowered to attach the property of the non-compliant party and sentence him up to three months in civil prison. However, the order of attachment shall not remain in force for more than one year, and if the non-compliant party does not comply with the order within that period, then the property attached may be sold and the injured party may be compensated from the proceeds of such property. Thus, the Order provides for a mechanism to ensure compliance with orders of a court since the property is provisionally attached and the sentence imposed can be discharged by the direction of the court.

Thus, intrinsically, the Order is not a punitive measure, but a measure for ensuring compliance of orders of a civil court with some trappings of punitive measures. Even though the Order provides for the power to punish, it is to be sparingly resorted to. However, that does not take away the power of a court to punish, or restrict its scope only to ensure compliance, as the Order explicitly provides for the consequence of disobedience or breach of an order passed under Order XXXIX Rule 1 and 2 of the CPC. Therefore, while applying O. XXXIX R. 2A, a purposive approach of interpretation has to be resorted to by the courts so as to not defeat the very ethos of a procedural law and also to not let a non-compliant party escape from bearing the brunt of law.

Another interesting facet of law which arose before the Court while dealing with the instant application under Order XXXIX R. 2A was the insistence of the plaintiff to rely on section 105 of the Trade Marks Act, 1999 by alleging that the defendant was a recalcitrant counterfeiter of luxury goods. An attempt was made to jurisprudentially diminish the boundaries of civil and criminal law by resorting to the alleged recalcitrance of the defendant. However, invocation of Section 105 of the Trade Marks Act, 1999 is contingent on a previous conviction of a person under Section 103 or 104 of the Trade Marks Act, 1999. Moreover, at an interim stage, leave alone criminal conviction there is not even a formal adjudication or decree of a civil dispute. Thus, to resort to Section 105 of the Trade Marks Act, 1999 so as to punish a defendant by resorting to his alleged recalcitrance is outright untenable in law, as it not just diminishes the boundaries of civil and criminal jurisprudence, but also the finality of adjudication in both the cases.

O. XXXIX R. 2A is, therefore, necessarily to ensure enforceability of orders passed by civil courts by encumbering the property and curbing the personal liberty of a non-complaint person. However, the encumbrance on property is removed once a party complies with the order and imprisoning a person can only be resorted to sparingly, as it essentially involves curbing personal liberty of a person. Personal liberty is an inherent and intrinsic facet of human personality as laid down in a catena of judgments by the Supreme Court.

In the matter at hand, since the disobedience of its order was ceased by the defendant, the Court refrained from attaching the property or curbing the personal liberty of the defendant. However, to not let the disobedience of its order go unpunished, the Court appropriately moulded the relief by imposing a cost of rupees five lakhs on the defendant to be paid to the plaintiff as a deterrent as well as a punitive measure keeping in view the commercial evil that counterfeiting is.

Amar Maruti Patil is an Advocate practicing in the Bombay High Court.