Kerala High Court
Choorakadan Alias Rayyappadan Sanku ... vs Antony on 29 June, 1990
Equivalent citations: AIR1991KER44, AIR 1991 KERALA 44, (1990) 2 KER LT 578
Author: K.G. Balakrishnan
Bench: K.G. Balakrishnan
JUDGMENT K.G. Balakrishnan, J.
1. The short question that arises for consideration in this second appeal is whether a party aggrieved by the dismissal of an application under Order XXXIX, Rule 2A of C.P.C. filed for taking action for disobedience or breach of injunction, can challenge the same in an appeal filed under Order XLI, Rule 1 against the original decree, without recourse to a separate appeal as provided under Order XLIII, Rule 1(r) of the Code.
The facts necessary for a decision on this point are as follows: Defendants in O.S. 600 of 1982 on the file of the Munsiffs Court. Trichur are the appellants. The respondent-plaintiff filed a suit for injunction restraining the defendants 1 to 7 from entering into the plaint schedule property, cutting and removing trees therefrom and from making a road through any portion of the plaint property. In the suit the respondent contended that on the western side of the plaint property there is a panchayat road lying north to south and another panchayat road lying on the southern side of the property east to west. According to the respondent the appellants requested the respondent to surrender some land for widening these panchayat roads and as he refused to surrender any land, and the appellants threatened that they would forcibly take possession of the land for the purpose of the road. Apprehending danger to his property, the respondent filed suit for injunction and other consequential reliefs. The suit was dismissed by the trial Court holding that there was no cause of action to file the suit, as the respondent had given his consent for the formation of the road. Along with the suit the respondent had moved for interim injunction to restrain the appellants from trepassing into the property. The interim injunction application was allowed and according to the respondent during the pendency of the ad interim injunction the appellants wherein trespassed into the property and committed waste by cutting and removing coconut trees and area nut trees and other seasonal cultivation. The respondent filed I.A. Nos. 1925/82 and 621/83 under Order XXXIX, Rule 2A, C.P.C. for taking action against the appellant for violation of the interim injunction. No separate evidence was adduced in these two interlocutory applications. They were considered along with the suit and in the judgment of the Munsiff dated 31-1-1984 it was held that the appellants herein have not done any acts alleged by the plaintiff and that they have not violated the ad interim injunction passed by the Court. The suit as well as I.A. Nos. 1925/82 and 621/83 was dismissed.
2. As against the dismissal of the suit, the respondent preferred A.S. 42 of 1985 before the District Court, Trichur under Order XVI, Rule 1 of C.P.C. In the appeal memorandum the respondent challenged the propriety of the dismissal of I.A. Nos. 1925/82 and 621/83. As ground No. 21 of the appeal memorandum in A.S. 42 of 1984 the respondent herein contended that the reasons given by the trial Court for disbelieving the evidence of witnesses examined for proving the violation of injunction order are baseless and devoid of merit. The lower appellate Court interfered with the decree and judgment of the trial Court and decreed the suit as prayed for restraining the appellants herein from trepassing into the property for cutting open a new road through the property of the respondent. As regards the dismissal of I. A. Nos. 1925/ 82 and 621/83 by the trial Court, the lower appellate Court held that the appellants herein had violated the ad interim injunction and therefore proceedings have to he initiated against the appellants. The orders passed in I.A. Nos. 1925/82 and 621/83 were set aside and the trial Court was directed to take further action in the matter. The present appeal relates to the interference made by the lower appellate Court as regards the orders passed in I.A. Nos. 1925/82 and 621/83. As against the judgment and decree passed by the lower appellate Court no appeal has been preferred by the appellants.
2A. The main contention urged by the appellants is that no appeal was preferred against the orders passed in I.A. Nos. 1925/ 82 and 621/83 and in the absence of separate and specific appeal the lower appellate Court was not justified in interfering with those orders and the interference made by the lower appellate Court is clearly unsustainable in view of the provisions of the Code.
3. It is common case that I.A. Nos. 1925/ 82 and 621/83 were filed under Order XXXIX, Rule 2A of C.P.C. and the relief sought for by the plaintiff was to punish the present appellants for the disobedience of the interim injunction granted by the Court. These two applications were considered along with the suit and findings have been separately entered in the judgment. An order passed under Order XXXIX, Rule 2A is made appealable and an appeal would lie under Order XLIII, Rule 1(r). Admittedly A.S. 42/84 on the file of the District Court, Trichur was not filed under Order XLIII, Rule 1(r) of the C.P.C. As already pointed out, A.S. 42/84 was filed under Order XLI, Rule 1 of the Code and the learned counsel for the appellants contends that in an appeal filed under Order XLI, Rule 1 of the Code the orders passed under Order XXXIX, Rule 2A cannot be challenged. Attention was drawn to Section 105 of the C.P.C. which reads as follows :
"105. Other orders: (1) Save as otherwise provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.
(2) Notwithstanding anything contained in Sub-section (1), where any party aggrieved by an order of remand from which an appeal lie does not appeal therefrom, he shall thereafter be precluded from disputing its correctness."
Section 105 of the C.P.C. makes it clear that except as otherwise provided in the Code, no appeal shall lie from any order made by the Court in exercise of the original or appellate jurisdiction. It is made further clear that where a decree is appealed from any error, defect or irregularity in any order, affecting the decision of the case may be set forth as a ground of objection in the memorandum of appeal. In A.S. 42 of 1984 the order passed under Order XXXIX, Rule 2A was challenged and Section 105, C.P.C. expressly prohibits such a mode of challenge. It is true that a party need not file appeal against all interlocutory matters and he can challenge the same in an appeal filed from the original decree, if that interlocutory order has affected the decision of the case. Only such order which affects the decision of the case alone can be challenged along with the appeal filed against the original decree. Even if there is any error, defect or irregularity in any other order, the aggrieved party is not entitled to challenge it along with the appeal filed against the original decree.
4. The proceedings under Order XXXIX, Rule 2A, C.P.C. is separate and independent. Whatever be the orders passed in Order XXXIX, Rule 2A petition, it may not have any bearing on the decision of the case. Even if the petition under Order XXXIX, Rule 2A was considered and disposed of along with the suit, the order passed thereunder would be distinct and separate and an appeal would lie under Order XLIII, Rule1(r) of the C.P.C. As the respondent herein had not challenged the order passed under Order XXXIX, Rule2A by a separate appeal, it was not open to the learned District Judge to interfere with the order passed by the Munsiff. The order passed in Order XXXIX, Rule 2A petition had not affected the decision of the case. Therefore, the same cannot be a ground for objection in the memorandum of appeal in A.S. 42/84. Section 105 of C.P.C. expressly prohibits such recourse. Therefore, the order passed by the learned District Judge directing the trial Court to proceed with I. A. Nos. 1925/82 and 621/83 is without jurisdiction and illegal.
5. On the merits of the case also the learned District Judge was not justified in interfering with the order of the Munsiff. The application under Order XXXIX, Rule 2A, C.P.C. is in the nature of criminal proceedings. Therefore, the burden is on the petitioner-plaintiff to prove that the defendant had violated the order of injunction. The plaintiff-petitioner examined some interested witnesses and their evidence was not of very much worthy of credence. It is also to be noted that the respondent herein initiated three criminal cases against the appellants in respect of the incidents relating to the violation of injunction order. In all the three criminal cases the accused were acquitted. In respect of one incident the respondent alleged that a set of persons took pan in demolishing his fence and he wanted the criminal Court to take action and in respect of the very same incident he filed a petition under Order XXXIX, Rule 2A and sought for taking action in respect of some other persons. As regards the demolition of the boundary fence and cutting and removing of coconut trees the evidence was quite unsatisfactory. The lower appellate Court was not justified in interfering with the orders of the trial Court.
6. In any view of the matter the direction of the learned District Judge to the trial Court to take action against the present appellants for violation of order of injunction is not sustainable in law. Hence the second appeal is allowed and the direction passed by the District Judge in this regard is set aside. The parties are directed to bear their respective costs.