Kerala High Court
Cheruvannoor Nallalam Grama Panchayat vs Ravi on 8 November, 2005
Equivalent citations: AIR2006KER132, 2006(1)KLT546
Author: V. Ramkumar
Bench: V. Ramkumar
ORDER V. Ramkumar, J.
1. These two revision petitions have been filed by defendants 1 and 2 respectively in O.S.No. 160/2002 on the file of the Munsiff's Court, Kozhikode-II, The said suit filed by the respondent, Kathalat Ravi was one for a perpetual injunction restraining the defendants from trespassing upon the plaint A and B schedule properties and from altering their present condition and from interfering with the peaceful possession and enjoyment of the same by the plaintiff. Along with the suit the plaintiff also filed I.A.No. 1101/2002 for a temporary injunction on the lines of the perpetual injunction prayed for in the suit. An ad interim order of injunction was granted by the trial court which, after hearing both sides, made the order absolute. Subsequently the plaintiff filed I.A.No. 1295/2002 under Order XXXIX Rule 2A C.P.C. read with Section 151 C.P.C. alleging that the order of injunction was violated by the defendants. Even though the said application was opposed by the revision petitioners on various grounds, overruling their objections the trial court as per order dt. 19.1.2005 allowed the said application directing as follows:--
(a) Defendants 1 and 2 shall pay a sum of Rs. 500/each to the plaintiff towards damages caused owing to the violation of the injunction order passed by the court.
(b) Defendants 1 and 2 are directed to restore the pathway into its original width of 1.8 metres and restore portions of the plaint A and B schedule properties which were utilised for road formation. This shall be done within three weeks from the date of the order and at the expense of the defendants.
(c) If the defendants failed to pay the damages or to restore the pathway as aforesaid, they shall be detained in civil prison for a period of 15 days and the plaintiff shall be entitled to restore the plaint A and B schedule properties to their original condition at his expense to be realised from the defendants together with the damages as ordered, by resort to attachment and sale of properties, if any, of the defendants.
2. Even though defendants 1 and 2 filed an appeal as C.M.A.No. 15/2005 before the District Court, Kozhikode, the same was dismissed as per judgment dt. 16.3.2005. Hence these revisions.
3. I heard the learned Counsel appearing for the revision petitioners as well as the respondent/plaintiff.
4. Assailing the orders passed by the courts below, Adv. Sri Kunhikrishnan, the learned Counsel appearing for the 1st defendant Panchayath made the following submissions before me:-
The 1st defendant in the suit is Cheruvannoor Nallalam Grama Panchayat represented by its Secretary. In I.A.No. 1295/2002 filed under Order XXXIX Rule 2A read with Section 151 C.P.C. also, it is the same Grama Panchayath represented by its Secretary which was the first counter petitioner. Without naming the person who was the Secretary, it was not permissible for the plaintiff to seek his imprisonment in civil prison for the alleged violation of the interim order of injunction. Court cannot imprison a person who is not identified in the order. A nameless person cannot be incarcerated (see Union of India v. Satish Chandra Sharma . It will be disastrous to send the Secretary, whoever he is, to civil prison for the alleged disobedience of an order of the court if he was not the Secretary at the time of the alleged disobedience. The Commissioner, examined as PW. 1, had not seen the Secretary of the Panchayath during his inspection at the time of the alleged violation. The plaintiff, examined as PW.3, also did not see the Secretary at the scene. Even the trial court has observed in paragraph 12 of its order that the witnesses for the plaintiff could identify only the Assistant Executive Engineer of the 1st defendant Panchayath besides the 2nd defendant at the scene. The trial court has observed that the 2nd defendant alone was present with the officials of the 1st defendant Panchayath. Even if the said observation is accepted, mere presence by itself may not be sufficient to hold that the conduct of those present was contumacious. It must be remembered that the advocate commissioner appointed by the court was inspecting the property and during such an inspection it is quite natural that the parties may present themselves at the spot of inspection. On the merits also there is no finding as to what exactly is the area of land annexed from the plaint A and B schedule properties for widening the pathway lying in between the plaint A and B schedule properties.
5. Adv. Sri Salil Narayanan, the learned Counsel appearing for the 2nd defendant, made the following submissions before me:-
There is no acceptable evidence to show that the order of injunction was served on the 2nd defendant. There is no evidence to show that the 2nd defendant had knowledge of the order either. The Advocate Commissioner who was examined as P.W.I, has stated in her report that she got the commission warrant at about 1 p.m. on 21.3.2002. If so, it is incomprehensible that she conducted the inspection of the property situated about 9 kms. away from the court premises at 1 p.m. on that day. The courts below went wrong in relying on the endorsement made by the process server on the reverse of the summons without examining the process server. In a case as the present, where the 2nd defendant was admittedly not served with the summons in the suit, it is for the plaintiff who complains of violation of the interim order of injunction to prove that the 2nd defendant had knowledge of the order of injunction and he wilfully disobeyed the same. The orders passed by the courts below have not considered these aspects of the matter and cannot be sustained.
6. I am afraid that I cannot agree with the above submissions. The suit was instituted on 20.3.2002. The prayer in the suit is for a perpetual injunction restraining the defendants and their officials and men from trespassing into the plaint A and B Schedule properties and altering their present condition and from interfering in any manner with the peaceful possession and enjoyment of the plaint schedule properties by the plaintiff. Along with the suit the plaintiff also filed I.A.No. 1101/1992 for a temporary injunction on the same lines as has been prayed for in the suit. The case of the plaintiff is that from the year 1980 onwards he is the owner in possession of both the plaint A and B schedule properties lying contiguously, that along the eastern boundary of the plaint A schedule property and the western boundary of the plaint B schedule property there is a pathway used by the public for access to the Saradamandiram Thondilkadavu Road and that notwithstanding the disinclination of the plaintiff to surrender portions of his properties for widening the pathway into a road, the defendants had organised members of the public with a view to widen the said pathway into a pucca road using force. On 20.3.2002 itself an ex parte order of interim injunction was passed by the learned Munsiff. The said order was served on the 1st defendant at 12.56 p.m. on 21.3.2002. An emergent commission was taken out at the instance of the plaintiff. The learned Munsiff deputed Adv. Jaya P. Lukose as the commissioner to visit the plaint schedule properties and submit a report and plan. Ext.C1 is the report and Ext.C1 (a) is the plan submitted by the said advocate commissioner. She reached the plaint schedule properties at about 1 p.m. on 21.3.2002 and noted that in between the plaint A and B schedule properties there was a 3 ft. wide pathway used by the public. She also noted another 2 ft. wide pathway passing through the plaint B schedule property and leading to the same direction. The inspection of the commissioner was after giving notice to the plaintiff and the 1st defendant. The commissioner was not able to give notice to the 2nd defendant as he was not available. During the inspection by the commissioner people began to gather at the plaint schedule properties. A person who introduced himself as the 2nd defendant came there and started scolding the commissioner and the plaintiff. When the Commissioner tried to serve notice of inspection on him, he refused to accept the notice and abused the commissioner as well as the court. Soon, at the behest of the 2nd defendant, the persons who had gathered there brought granite stones and boulders and laid them along the pathway ignoring the presence and remonstrance of the commissioner. About 25 persons had gathered there at the instance of the 2nd defendant and the situation was turning bad. By that time the officials from the 1st defendant Panchayat had also reached there and it was in their presence that the 2nd defendant and his men began the widening operations during the course of which some of his men had even tried to attack the plaintiff's brother and son. Noticing that the situation was taking a violent turn, the commissioner withdrew from the property and called the Nallalam Police. Within 15 minutes the police reached there and the situation was slightly brought under control in about half-an-hour's time. By that time the 3 ft. wide pathway had been converted into a 7 ft. wide road with granite stones laid along the same.
7. It was after service of the interim injunction on the 1st defendant that officials of the 1st defendant Panchayat had collected at the spot and were seen watching the fun that was going on in the property. The 2nd defendant who was physically present at the spot and who refused to accept the notice from the commissioner and who was seen abusing the commissioner and the court cannot be heard to say that he was not served with a copy of the injunction order. The endorsement on the reverse of the summons made by the process server showed that the 2nd defendant had refused to accept the summons as well as copy of the order of injunction. There is a presumption regarding the regularity of official acts under Section 114 of the Evidence Act (vide illustration (e) thereof). I see no reason why the endorsement made by the process server should not be acted upon. Non-examination of the process server cannot be put forward as a ground to contend that the 2nd defendant had no notice of the order of injunction against him. There is no need for proving formal service of the order of injunction. It is enough if the party had knowledge about the order of injunction (vide Nanu Ramachandran v. Raman Uthaman 1994 (2) KLT (SN) 33 case No. 44). The 2nd defendant examined as Rule W.I has admitted that the Panchayat had allotted funds for the widening of the pathway. This shows that the 1st defendant Panchayat was hand in glove with the 2nd defendant and both of them were acting conceitedly to translate into reality their sinister motive of forcibly widening the pathway into a pucca road. The fact that the violation petition (I.A.No. 1295/2002) was opposed by defendants 1 and 2 by filing a joint counter and the appeal before the lower appellate court was also filed jointly by the two defendants, fortifies their common object.
8. No doubt, the Secretary of the 1st defendant Grama Panchayat has not been named in I.A.No. 1295/02 filed under Order XXXIX Rule 2-A read with Section 151 C.P.C. But the 1st defendant had not chosen to name its Secretary when it filed the appeal before the lower appellate court. In C.R.P.No. 785/2005 also the petitioner is the said Grama Panchayat represented by its Secretary whose name has not been revealed. No officer, of the 1st defendant Panchayat entered the witness box also to counter the allegations levelled against the 1st defendant. The impugned order is not one for incarcerating the Secretary of the Panchayat. The impugned order only directs both defendants 1 and 2 to restore the pathway to its original condition as if the order of injunction had not been violated. The court is entitled under its inherent power to direct a party who has gained an undue advantage by flouting the order of the court, to restore status quo ante or to disgorge the ill-gotten advantage obtained through breach of the court order (vide paragraph 7 of the decision of the Full Bench in Kanakku Kumara Pillai Thanu Pillai v. Mathevan 1962 KLT 688). It is only if the defendants do not restore the pathway to its original condition that the question of incarceration will arise. By the impugned order the court has not directed imprisonment of any nameless person. The court has only directed the defendants to restore the status quo ante. This direction is to be complied with by the 1st defendant panchayat acting through its Secretary, whoever he is, and also by the 2nd defendant. That stage is yet to arise. Hence I am not impressed by the argument that the impugned order amounts to imprisonment of an unidentified person.
9. Equally misconceived is the argument that the direction to restore the pathway to its original condition is an unworkable direction. The violators of the court order know the extent of their violation.
10. An interim order is liable to be respected by the parties to the same, so long as such order is in force, even if the order is subsequently vacated (see Tayabbhai M. Bagasarwalla and Anr. v. Hind Rubber Industries Pvt. Ltd. etc. , Eastern Trust Company v. Meckenzie Menn & Co. Ltd. AIR 1915 P.C.106 and Krishnan v. Joseph Desouza 1985 KLT 1010). After flagrantly flouting the interim injunction, if a party feels with a sense of triumph that he has over-reached the court order and that he can get away with that, such party should be told that the arms of the court are long enough to catch him and mighty enough to undo the injustice done by him to the opposite party.
11. Defendants 1 and 2 have no case that the offending work was carried out inadvertently; nor have they tendered any apology for their act. The wanton acts of breach of the court order were committed right in the presence of the advocate commissioner who is an officer of the court. The 2nd defendant had no qualms even to abuse the commissioner who was only carrying out the orders of the court. The courts below have approached the question in the right perspective and no interference is called for with the orders concurrently passed by the courts below.
These C.R.Ps. which are devoid of any merit are accordingly dismissed with costs.