Orissa High Court
Baishnab Pradhan And Ors. vs Guru Charan Pradhan on 29 November, 2002
Equivalent citations: AIR2003ORI73, AIR 2003 ORISSA 73
Author: A.S. Naidu
Bench: A.S. Naidu
JUDGMENT A.S. Naidu, J.
1. "Does law permit a person to retain a thing done contrary to an order of restraint passed by a Court?" is the question which is posed in this Civil Review.
2. The undisputed facts are that the opposite party as plaintiff filed Title Suit No. 73 of 1985 in the Court of the then Civil Judge, redesignated as the Civil Judge (Senior Division), Jaipur praying for partition of the suit property and for other ancillary reliefs. Along with the plaint, a petition under Order 39, Rules 1 and 2 of the Code of Civil Procedure was also filed praying to restrain the defendants and others from constructing any new house over the suit properties appertaining to Khata No. 327, plot. No. 1748 and plot No. 1878 in Mouza Nahana, P. S. Binjharpur, District-Cuttack. The said petition was registered as Misc. Case No. 74 of 1985. The learned trial Court by order dated 16th May, 1985 passed an order of ad interim injunction restraining the defendants from making any construction over the suit land or putting up any new fence removing the existing fence or trees standing over the suit land. The said order of ad -interim injunction was made absolute by order dated 20th December, 1986.
3. According to the plaintiff, taking advantage of the fact that the Civil Courts were closed for summer vacation, the defendants took law into their own hands and violating the restraint order, forcibly raised new constructions over the suit plots up to lintel level and the plaintiff was constrained to approach the Sub-Divisional Magistrate who directed the police to see that the order of injunction was obeyed and the defendants did not proceed with the construction. Thereafter, according to the plaintiff, the defendants who had scant regards for the rule of law, once again all of a sudden commenced construction and completed the half-constructed building. Aggrieved by such overt act of the defendants, the plaintiff filed a petition under Order 39, Rule 2-A read with Section 151 of C.P.C. inter alia praying to take appropriate action against the defendants. The plaintiff also prayed for an order of demolition of the illegal construction made by the defendants deliberately flouting the order of injunction. The said petition was registered as Misc. Case No. 104 of 1986.
4. The trial Court, to test the veracity of the allegations levelled, examined witnesses from both sides, deputed a Pleader Commissioner on different occasions to make local inspections and after vivid discussion of the facts and circumstances and taking into consideration the evidence, both oral and documentary, and the reports of the Pleader Commissioner arrived at a conclusion that the defendants had, in fact, violated the order of injunction passed by the Court and had forcibly constructed the building in question and that they were liable to be proceeded against for violation of the order of injunction. Accordingly, the trial Court passed an order directing the defendants for demolition of the entire construction made by them over the suit land in violation of the order of Injunction and flouting the order of restraint, within fifteen days, failing which liberty was given to the plaintiff to demolish the same and realise the expenses from the defendants under due process of law.
5. Being aggrieved by the said order of the trial Court, the defendants filed Miscellaneous Appeal No. 26 of 1997 before the Additional District Judge, Jaipur. The learned appellate Court after discussing the facts and circumstances of the case and after considering the evidence, both oral and documentry and also other materials, dismissed the Miscellaneous Appeal and confirmed the order passed by the trial Court.
6. Thereafter the defendants approached this Court in Civil Revision No. 70 of 1998. This Court also by a well-discussed judgment dated 5th September, 2000 came to a categorical finding that the defendants had deliberately committed breach of the injunction order. It also observed that the fact that the defendants had commenced the construction and completed the work during two successive summer vacations taking advantage of the fact that the Courts remained closed itself indicated their defiant attitude and scant regards for the Court's order of injunction. Such deliberate action, this Court observed, could not be countenanced and had to be dealt with firmly. Under the said circumstances, this Court refused to interfere with the concurrent findings of fact and the orders of the Courts below and dismissed the Civil Revision.
7. The defendants have preferred this Civil Review under Order 47, Rule 1, C.P.C. with a prayer to review the judgment/order passed by this Court in the Civil Revision Inter alia submitting that the observations that though the original application, i.e. Misc, Case No. 104/86, was styled as one under Order 39, Rule 2-A read with Section 151, C.P.C., the mere mention of Section 151, C.P.C. does not mean that the order of demolition was passed in exercise of that power and that the application being one under Order 39, Rule 2-A, C.P.C., no order of demolition could be passed, it was submitted that this Court lost sight of the provisions of Order 39, Rule 2-A, C.P.C. which did not empower the Court to pass an order of demolition.
8. According to Mr. Routray, since specific and categorical remedies are provided under Order 39, Rule 2-A, C.P.C., no demolition order which is not stipulated under the said order could be passed. He further submitted that this Court after rightly coining to the conclusion that the petition could not be treated as one under Section 151.
C.P.C., lost sight of the provision while up-
holding the order of demolition. Thus, there is an error apparent on the face of the record and the same can be rectified in this Civil Review.
9. In support of his contentions, Mr. Routray relied upon a decision of the Supreme Court in the case of Samee Khan v. Bindu Khan, AIR 1998 SC 2765, and submitted that while dealing with a petition under Order 39, Rule 2-A, C.P.C., if the Court arrives at a conclusion that there is breach of the injunction order, it may either order detention of the disobeying party or attach his property, or both steps can be resorted to, or one of them alone can be chosen, according to consideration of the Court on the facts and circumstances and the situation of each case. According to Mr. Routray. in the light of the aforesaid decision, the Courts while exercising power under Order 39, Rule 2-A, C.P.C. cannot traverse beyond the scope of the provisions and direct demolition of the structure which is not contemplated in Order 39, Rule 2-A, C.P.C.
10. Mr. Routray further submitted that as the aforesaid decision was not taken into consideration by the learned single Judge while deciding the Civil Revision, the order needs a review. In support of such contention, he relied upon a decision of this Court in the case of Milla Jagannatham v. State of Orissa (1992) 74 CLT 25, and submitted that while exercising power under Order 47. Rule 1, C.P.C. if the Court is satisfied that some new and important matter or evidence which is relevant for the purpose was discovered which could not be produced after exercise of due diligence or if there appears to be some mistake or error apparent on the face of the record, or there exists any other sufficient reason, the order passed can be reviewed.
11. On the other hand, Mr. Parida.
learned Counsel for the plaintiff-opposite party, forcefully submitted that, the present petition for review is not maintainable and the defendants who had intentionally flouted the order of injunction and had taken the law into their own hands are not only to be severely punished, but also the overt act committed by them flouting the order of injunction should be directed to be removed. According to Mr. Parida, a person cannot take the law into his own hand by deliberately disobeying the Court's order and enjoy the fruits derived out of such disobedience. He also incidentally pointed out that the observation made by this Court in the Civil Revision that mentioning Section 151, C.P.C. in a petition filed under Order 39, Rule 2-A, C.P.C. was only procedural and, in fact, the petition has been treated as one under Order 39, Rule 2-A, C.P.C. is not strictly in consonance with law and while exercising power under Order 39, Rule 2-A, C.P.C. if the Court is satisfied that some overt acts had, in fact, been committed, it can also exercise its inherent power to maintain status quo ante.
12. The legal position is well established that if there is disobedience of the order of injunction, the aggrieved party can seek relief by invoking the provisions of Order 39, Rule 2-A, C.P.C. and the Court in such cases is concerned only with the question whether there is disobedience of the order of injunction. Any action by which the order of a Court is attempted to be thwarted has to be viewed seriously. If an order of injunction is violated, that violation has to be dealt with sternly and seriously, otherwise it will undermine the very basis of the rule of law.
13. In the present case, admittedly an ad interim order of injunction was passed restraining the defendants from raising any construction over the suit scheduled land. The said order was subsequently made absolute after hearing all the parties. The defendants were in know of the order and intentionally disobeyed the order. The action of the defendant amounts to deliberate disobedience of order of the Court for their own advantage and to the prejudice of the other side and in such a case, according to me, it is the duty of the Court to exercise its power under inherent Jurisdiction to bring back the parties to the position where they originally stood as if the order passed by the Court had not been contravened. The principle underlined for exercise of such power by Court is that no party is to be allowed to take advantage of his own wrong, in spite of an order to the contrary passed by Court. The construction of building was done, by the defendants admittedly in breach of the specific order of restraint. In such a case the Court cannot be a silent spectator and allow the party who has deliberately disobeyed the lawful order to enjoy the fruit derived from such disobedience, where it appears to the Court that a wrong has been done by violation of the order, it is the duty of the Court to direct to bring back the status quo ante with regard to the property in question in exercise of its inherent power vested under Section 151, C.P.C. The observation made in the Civil Revision are obiter in nature.
14. The point canvassed before me by the petitioner that though the Court can take notice of the subsequent event, it should not order demolition and confine its power only to the modalities prescribed under Order 39, Rule 2-A, C.P.C., cannot be accepted. If by reason of violation of the restraint order the defendants committed certain overt act, thereby changing the property In 'lis', to do complete justice between the parties it is the duty of the Court to take notice of the charged circumstances and direct to bring back the status quo ante in respect of the properties, in exercise of its inherent power under Section 151, C.P.C. I am, therefore, satisfied that the decision of this Court in the Civil Revision needs no variation.
15. In the result, the Civil Review is dismissed. Parties to bear their own costs.