Kerala High Court
Neelakantan Padmanabhan And Anr. vs Sankaran Narayanan on 23 June, 1987
Equivalent citations: 1988CRILJ1600
ORDER S. Padmanabhan, J.
1. Judgment debtors in an injunction decree are the revision petitioners. The decree was on 15-12-1965 in O.S, 115 of 1965 by the Munsiff, Haripad restraining them by permanent injunction from committing waste. On 12-10-1982 E.P.110 of 1982 was filed alleging disobedience of injunction decree by cutting two jack trees and seeking action under Order 21 Rule 32. They denied the acts but on the basis of evidence the Munsiff found them guilty of having wilfully violated the injunction decree. Judgment-debtors, husband and wife, on the wrong side of sixty were ordered to be detained in civil prison for 15 days each. That order is challenged in revision.
2. The finding that trees were cut is on the basis of appreciation of evidence which include report of the Commissioner and evidence of witnesses. Within the limited revisional jurisdiction under Section 115 there is no scope for interference with that finding and the learned Counsel rightly desisted from making any such attempt. His attempt was only to convince me that the disobedience was not wilful and hence action is not justified.
3. The requirements for enforcing an injunction decree under Order 21 Rule 32(1) by detention in civil prison or by attachment of property or by both are that the person has had an opportunity of obeying the decree and has wilfully failed to obey it. The rule applies to cases where a party is directed to do so some act, as well as to cases where he is directed to abstain from doing an act. That is to say it applies to prohibitory as well as mandatory injunctions. The question whether a party had an opportunity of obeying the decree or not or whether he wilfully disobeyed it is a question of fact to be decided on the facts of each case. In a decree for prohibitory" injunction the question of having had an opportunity of obeying the decree may not arise in as much terms as in a mandatory injunction because violation involves a positive act of disobeying the prohibition.
4. In either case mere proof of disobedience is not sufficient. It must also be proved to be wilful, whether it is failure or positive violation. A judgment-debtor cannot be confronted with the drastic action of depriving him of his personal liberty on the mere finding that the decree is violated or disobeyed. Only when there is wilful failure the court gets jurisdiction to take the extreme action. Mere inadvertent, casual or accidental omission or violation is not what is envisaged under Order 21 Rule 32(1). Some mental element, though it may not be the same as mens rea, in the matter of disobedience must be there. The judgment-debtor can have a variety of explanation for what appears to be an apparent violation or disobedience. Violations for which there can be reasonable or plausible explanations of absence of wilful mind cannot be visited with the serious penal consequences. All the attendant circumstances coupled with the explanation of the judgment-debtor will have to enter the judicial mind before giving the verdict that the action or omission of the wrong doer is an invasion into the authority and dignity of the court, wilfully made. It is considered more akin to contempt of the authority of the court than as a private grievance of the decree-holder and the object is to bring the judgment-debtor to the authority of the court by making him obey the decree. That is because such decrees may not be capable of execution and enforcement by any other method and decrees and orders of courts will have to be enforced in the interest of Society and individuals also. These are well established positions for which authorities if necessary could be had in the decisions in Repayi Jose v. Chacko Lonappan 1959 Ker LT 275, Varkey v. Cheeran Narayanan 1968 Ker LT 711, Keeran v. Mohanan 1980 Ker LT 32 and 1984 Ker LT (SN) 5, Case No. 10.
5. The next question is what exactly could be termed as wilful failure to obey. No hard and fast guidelines could be given and no decision of any Indian Court was brought to my notice. Each case will have to be decided on its own merit bearing in mind the penal consequences that follow. The opinion formed by the judicial mind must be the cumulative effect of the aggravating and mitigating circumstances available regarding the "wilful mind" which worked behind the action. The word 'wilful' according to dictionary meaning imports a deliberate or voluntary or intentional act. Therefore it must be an act of an intentional mind which was conscious of the prohibition and what was intended and done was a conscious violation. In dealing with the question, courts have to bear in mind that the object of the rule is to enforce injunctions contained in the decrees or orders and not to punish a party guilty of disobedience. Resort cannot, therefore, be had to the rule for the purpose of punishing a person for breach of an injunction. This aspect has been considered in detail in (1964) 3 All ER 674 with reference to the Rule of the Supreme Court of England where there is an almost identical provision. In that case two motions were brought, one for the issue of writ of sequestration, in respect of the defendants goods, and the other for committing the erring party to prison. The question that was considered there was whether the disobedience was contumacious, i.e., in defiance of the order, the disobedience being wilful within the meaning of the Supreme Court Rules. It was held, quoting with approval another decision, that the principles on which the court acts when it is asked to sequestrate the property of a company upon the ground of disobedience to one of its orders are the same as those applicable where it is sought to commit a private individual to prison for contempt. I do not mean to say that in our country an action under Order 21 Rule 32(1) could be equated in all respects to one for contempt of court. That question does not arise for consideration also. In considering these aspects, especially when there was no occasion of giving an opportunity of obeying the decree the court should also give due weight to the contention taken up by the judgment-debtor pursuant to the action that what he did was not wilful or intentional. In a contempt matter what is involved is punishment while in the present case it is only enforcement of the decree and the detention is in civil prison and that too only for enforcing the decree and not for anything else. But a casual or accidental or unintentional disobedience to an order of the court is not enough to justify either equestration or committal; the court must be satisfied that a contempt or disobedience or violation of the decree of court has been committed wilfully in other words, that its order has been contumaciously disregarded. Then only the penal consequences could follow.
6. Bearing these principles in mind, I shall try to examine the case in hand. As arlier stated the decree is of 1965 and the injunction was only against commission of waste reserving the rights of both sides to agitate their respective rights over the property on the basis of their contentions in appropriate proceedings. The property belonged to a Malayala Brahmin fromom which leased the same to the first defendant in 1115. In 1125 first defendant sub-leased the properly and that right devolved on the plaintiff. On 8-2-1965 first defendant purchased the right of the jenmi and the suit was on 17-5-1965. Thereafter, first defendant filed O.S.79 of 1966 to redeem the sub-lease, but the suit was dismissedon23-12-1970 by Ext. Al judgment. While that suit was pending, decree-holder in the present case and another person applied under the Land Reforms Act to purchase the jenmi's right making the first defendant first respondent. That was dismissed on 23-8-1969 by Ext.B6 order. By that order the present first defendant was found a co-tenant along with the petitioners. Then plaintiff filed O.S.64 of 1982 for declaration of title and possession. Ext.B8 is copy of plaint. Then Ext.B9 application was filed in that suit to amend the plaint for recovery of possession admitting the present first defendant to be in possessioa Present E.P.was on 12-10-1982 for having cut trees on 8-10-1982 more than 17 years after the injunction decree.
7. The lapse of time and the various intervening litigations between the parties are also factors to be taken into account. So also in subsequent litigations after the commencement of the Land Reforms Act the parties were found co-tenants having equal rights and in the litigation in 1982 the plaintiff admitted possession of the first defendant. Defendants (revision petitioners) are residing in the property and possessing the same. Their age is also another factor. The evidence is that their sons cut the trees believing that they are entitled to do so on the assumed rights of their parents. C.Pw. 1 said that it is not wilful and no disrespect to the decree was intended. The execution court has not given any reason, except the fact of having cut the trees with the alleged consent of the revision petitioners, for coming to the conclusion that the disobedience was wilful. When the judgment-debtors say that they have not wilfully disobeyed the decree and that they have submitted and are continuing to submit to the decree, the correctness or bona fides of that contention has also to be gone into and if the conclusion is in favour of the judgment-debtors no further question of any action for enforcement of the decree by the drastic step will arise. In this case there is nothing to disbelieve their version regarding absence of wilful mind or submission to the decree.
The revision petition is therefore allowed without costs and the order of the execution court is set aside.