Punjab-Haryana High Court
Lakhbir Singh vs Harpinder Singh And Ors. on 8 May, 2003
Equivalent citations: AIR2004P&H127, AIR 2004 PUNJAB AND HARYANA 126, (2003) 4 RECCIVR 162
Author: Viney Mittal
Bench: Viney Mittal
ORDER Viney Mittal, J.
1. The present revision petition is directed against the order dated October 22, 2002 passed by the learned Additional District Judge, Hoshiarpur, whereby the appeal filed by the plaintiff-respondents against the order dated April 28, 2000 passed by the learned Civil Judge (Junior Division), Hoshiarpur was allowed and the present petitioner-Lakhbir Singh was ordered to be detained in civil prison for a period of three months with a further direction that the trial Court would attach his property for awarding appropriate compensation to the applicants for violation of the injunction orders.
2. A suit for mandatory injunction was filed by the original plaintiff-Saroop Singh (since dead) for directing defendants-Lakhbir Singh and Iqbal Singh to remove the construction of malba in specific portion of the land in dispute. Along with the aforesaid suit an application under Order 39, Rules 1 and 2 of the Code of Civil Procedure (hereinafter referred to as the "Code") was filed. Vide order dated December 17, 1994, the learned trial Court directed the parties to maintain status quo with regard to the actual position obtaining at the spot regarding the nature of the suit property and also report as to whether any construction was raised or was being made in the suit property, if so by whom and the nature of the construction. A Local Commissioner was also directed to visit the spot and conduct the inspection in the presence of the parties by serving an appropriate notice, if possible.
3. Subsequently, an application under Order 39, Rule 2-A of the Code was filed by the plaintiff with the averments that the, in junction order dated December 17, 1994 had been violated by defendant-Lakhbir Singh inasmuch as in spite of the status quo order, the said defendant had raised the construction of the shop in dispute at the spot in question. The plaintiff claimed that since there was a violation, therefore, the aforesaid defendant was liable to be proceeded against under: Order 39, Rule 2-A of the Code and appropriate action should be taken against him.
4. The aforesaid application filed by the plaintiff was contested by defendant-Lakhbir Singh. He claimed that he had never violated the injunction order which in fact was not to his knowledge. It was further stated by him that the construction at the spot had been raised much prior to the filing of the present suit and, at no stage, anybody had ever objected to the aforesaid construction.
5. The learned trial Court after taking into consideration the evidence led by the parties found it as a fact that the evidence on the record was not sufficient to prove that the defendant had willfully, knowingly and intentionally ever disobeyed the orders of the Court. It was further observed by the learned trial Court that photographs sought to be relied upon by the plaintiff did not connect the same with the site in dispute. The Local Commissioner had also admitted in his cross-examination that he had not taken the photographer with him and was not aware as to who had brought the photographer. The trial Court further noticed that in his report the Local Commissioner had mentioned that there was no construction material lying on the spot in the suit property and that the said fact was got wrongly mentioned in his report. A categorical finding had been returned by the learned trial Court that from the evidence it seemed that the shop had been constructed by the defendant even prior to the filing of the suit by the plaintiff.
6. On the basis of the aforesaid finding recorded by the trial Court, the learned trial Court dismissed the application filed by the defendant under Order 39, Rule 2-A of the Code.
7. The plaintiff (since dead), now represented by his legal representatives filed an appeal. The appeal was heard by the learned Additional District Judge. The learned Additional District Judge reversed the order passed by the learned trial Court and held that the defendant had disregarded the order of status quo passed by the Civil Judge and therefore, passed an order attaching his property for awarding appropriate compensation to the plaintiff for breach committed and also further ordered that the defendant would be detained in civil prison for a period of three months.
8. Now defendant-Lakhbir Singh has approached this Court challenging the aforesaid order passed by the learned Additional District Judge.
9. It may not be out of place to notice here that ultimately the aforesaid civil suit for mandatory injunction filed by the plaintiff was dismissed by the learned trial Judge vide judgment dated January 23, 2001. A copy of the aforesaid judgment has also been placed on record of the present petition by the petitioner.
10. I have heard Shri K. S. Dadwal, the learned counsel appearing for the petitioner and Shri Rajiv Bhalla, the learned counsel appearing for the respondents and with their assistance have also gone through the record of the case.
11. At the out set, it may be relevant to notice that provisions of Order 39, Rule 2-A of the Code are quasi criminal in nature and since a person violating the injunction order passed by the civil Court or otherwise disregarding the same is liable to be detained in civil prison, therefore, the aforesaid violation or disregarding of injunction order has to be proved beyond all reasonable doubts by the person complaining of such violation. The standard of proof required in such a case would, no doubt, be as is required in a criminal case, since the said act of the violator itself entails his detention in civil imprisonment.
12. Examining the entire evidence on the record in the light of the aforesaid position of law, it may be noticed that the learned trial court had found it as a fact tat the photographs relied upon by the plaintiff-appellant were not shown to be connected with the site in dispute nor it was shown as to how and at what stage, the photographer had been engaged and by whom, the learned trial Court had further pointed out that even the report of the Local Commissioner was defective inasmuch as he had mentioned in his report that there was no construction material lying at the spot in dispute and in his cross-examination the Local Commissioner had stated that the said fact was got wrongly written by him. It was because of the aforesaid fact that the learned trial Court had chosen to discard the report of the Local Commissioner as well. Another finding which had been given by the learned trial Court was that the shop in question had been constructed by the defendant even prior to the filing of the suit by the plaintiff-applicant. On the basis of the aforesaid finding, the learned trial Court had found that the case against the defendant could not be taken to have been duly proved and it could not be held that the defendant had knowingly, lawfully and intentionally disobeyed the orders passed by the Court on December 17, 1994.
13. On the other hand, the learned first appellate Court has mainly relied upon the report of the Local Commissioner as well as the photographs produced by the plaintiff and had come to the conclusion that the status quo order dated December 17, 1994, had been violated by defendant-Lakhbir Singh.
14. As noticed above, the main suit for mandatory injunction filed by the plaintiff was ultimately dismissed by the learned trial Court on January 23, 2001. While dismissing the suit the learned trial Court found it as a fact that "facts of the present case are quite different and the above mentioned authorities do not apply to the facts of the present case because admittedly the defendant had already raised construction over the suit property and that is why the plaintiff had filed this suit for mandatory injunction directing the defendant to remove the construction".
15. In the face of the aforesaid finding recorded by the learned trial Court in the judgment dated January 23, 2001, it is apparent that the findings recorded by the learned Additional District Judge while passing the order of detention and attachment of the property against defendant-Lakhbir Singh are not warranted. In fact from the evidence on the record, it cannot be suggested that the factum of the violation of the injunction order (status quo order dated December 17, 1994) stands conclusively proved beyond all reasonable doubts.
16. In this view of the matter, the present petition is allowed and the order dated October 22, 2002 passed by the learned Additional District Judge, Hoshiarpur is set aside and the application under Order 39 Rule 2-A of the Code filed by the respondent-applicant is dismissed.
17. There shall be no order as to costs.