# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR. JUSTICE AMIT RAWAL**
**TUESDAY, THE 17TH DAY OF DECEMBER 2019 / 26TH AGRAHAYANA, 1941**
**CRP.No.475 OF 2016 (D)**
**AGAINST THE ORDER IN OS 397/1985 DATED 17-11-2016 OF PRINCIPAL MUNSIFF, KASARAGOD**
**REVISION PETITIONER/RESPONDENT IN E.P. NO.55 OF 2008 AND 2ND DEFENDANT IN O.S. NO.397 OF 1985:**
**ANANTHESHWARA PAI AGED 50, S/O. LATE B VARADARAYA PAI, RESIDING AT PERLA, ENMAKAJE VILLAGE P.O, PERLA, KASARGOD TALUK AND DISTRICT-671 552. BY ADVS. SRI.R.LAKSHMI NARAYAN SRI.M.ASHOK KINI SMT.R.RANJINI**
**RESPONDENTS/PETITIONERS/DECREE HOLDER/SUBSEQUENT PURCHASER IN E.P. NO.55 OF 2008:**
|**1**|**RUKMA BAI**|
|---|---|
||**AGED 73, W/O. LATE N VITTAL SHENOY,**|
||**RESIDING AT PALLAKANA HOUSE, P.O. PERLA,**|
||**ENMAKAJE VILLAGE, KASARGOD TALUK AND DISTRICT-671 552.**|
|**2**|**MADHAVA SHENOY**|
||**AGED 45, S/O. LATE N VITTAL SHENOY,**|
||**RESIDING AT PALLAKANA HOUSE, P.O PERLA,**|
||**ENMAKAJE VILLAGE, KASARGOD TALUK AND DISTRICT-671 552.**|
|**3**|**SREENIVASAA SHENOY**|
||**AGED 43, S/O. LATE N VITTAL SHENOY,**|
||**RESIDING AT PALLAKANA HOUSE, P.O. PERLA,**|
||**ENMAKAJE VILLAGE, KASARGOD TALUK AND DISTRICT-671 552.**|
|**4**|**AHMMAD SHERIF**|
||**AGED 45, S/O. ABDULKHADER R/AT PERLA,**|
||**ENMAKAJE VILLAGE, P.O PERLA,**|
||**KASARGOD TALUK AND DISTRICT-671 552.**|
||**R1 BY ADV. SRI.MILLU DANDAPANI**|
**THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17.12.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
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## **O R D E R**
The present revision petition is preferred against the order of the Principal Munsiff Court, Kasargod, in E.P. No.55 of 2008 in O.S. No.397 of 1985, dated 17.11.2016.
2. Respondents/plaintiffs instituted a suit seeking permanent prohibitory injunction against the petitioner from trespassing into the plaint A schedule property or in any way interfering with the peaceful possession and enjoyment of the same.
3. On consideration of the evidence brought on record, the trial court, vide judgment and decree dated 26.02.1994 restrained the petitioner/respondent from trespassing into plaint A schedule property as well as interfering with its peaceful possession and enjoyment. The aforementioned judgment and decree was affirmed by this Court vide order dated 10.09.1997.
4. The herein instituted a respondents/plaintiffs
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petition under Order XXI Rule 32 of the Code of Civil Procedure for enforcement of the judgment and decree against the petitioner herein for committing civil imprisonment
of having violated the same on 25.02.2008 at 2 pm. by trespassing into and unlawfully demolishing the compound wall situated on the eastern side of the plaint A schedule property. The petitioner objected to the afore-mentioned alleged claim and stated the alleged incident to be false and a fabricated story. In fact, he denied the existence of a compound wall and explained the situation to be a natural hill
cut to a certain length, as per the survey field. Since the parties were at variance the executing court framed the following issues:-
- “1. Have the petitioners proved that on 25.02.2008 at 2 p.m the respondent trespassed into the decree schedule property and removed the eastern side compound wall in violation of the decree dated 26.02.1994?
2. Have the petitioners proved that the respondent has willfully failed to disobey the decree?
3. If so, Whether the respondent is liable to be detained in civil prison for the willful violation of the decree?
4. Relief and costs.”
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5. The respondents herein, to prove the alleged violation, taken the assistance of a Commissioner who inspected the spot and submitted Exts.C1 and C2 reports dated
24.11.2008 reflecting the demolition of the wall on the eastern
side of the plaint A schedule property. By rejecting the contention and other evidence brought on record, the execution petition was allowed and the following directions were issued:-
- “1. That the decree shall be enforced against the respondent by detaining him in the civil prison for a period of three months. It is made clear that if violation of the decree continues for a period of three months from today, the decree holder can restore the original condition of A schedule property invoking the procedure established under order XXI Rule 32(5) of Code of Civil Procedure at the expense of the Judgment Debtor.
2. Issue Arrest Warrant to the respondent. The warrant shall be kept in abeyance for a period of 10 days from today enabling the respondent to file appeal against the order if he is so advised.
3. The respondent shall pay the cost of the petition.”
6. Sri.R.Ranjini, the learned counsel appearing on
behalf of the petitioner submits that the order of the trial court
is not sustainable in the eyes of the law as no effective
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opportunity has been given to rebut the report of the Commissioner or to file objections thereto. The revision petitioner who is a handicapped person has nothing to do with the plaint A schedule property or B schedule property. The decree holder failed to discharge the onus of alleged violation of the decree. The demolition of the wall cannot actually be done by the petitioner. Since the imposition of civil imprisonment for a period of 3 months is only the last resort, the court ought to have taken into consideration all the facts and at the best could have awarded compensation as no useful purpose would be served in sending the petitioner to civil imprisonment. Much material had been brought on record to show that he was residing with his brother, who might have attempted to violate the decree. Thus, the order is liable to be set aside. In support of the contention, the counsel also relied upon the judgment of this Court in **Rajappan and Another v. Sankaran S/o Sudhakaran** [AIR 1997 Kerala 315].
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7. Per contra, Sri.M.Ashok Kini, the learned counsel, submits that the judgment debtor/revision petitioner failed to place on record any material establishing his place of residence at some other place. Exts.C1 and C2 Commissioner's
report led to an irresistible conclusion that there was a demolition of wall on the eastern side of A schedule property. His report remained unrebutted/uncontroverted. The revision
petitioner failed to discharge the onus relying on direct and cogent evidence of violation of the decree. By supporting the order, he sought dismissal of the revision petition.
8. I have heard the learned counsel appearing on both sides and appraised the paper books on record.
9. This Court, while admitting the revision petition on 28.11.2016, stayed the execution of the order passed in E.P. No.55/2008 in O.S. No.397/1985 on the file of the Principal Munsiff, Kasaragod, during the pendency of the revision petition. The institution of the suit and the decree is not in
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dispute. It is the settled law that for a decree of perpetual injunction there is no limitation. Parties to the lis or any other person knowing about the injunction order cannot be permitted to flout or show disregard and disrespect. Any such violation would definitely put the machinery of court in motion by invoking the statutory provisions as referred to above and of course, the onus, in the first instance would lie on an assertor respondents in this revision petition and plaintiffs by taking assistance of the Commission, proved on record the demolition of the wall. The question which arise is whether the demolition was by someone else or at the behest of the judgment debtor. The authenticity of the judgment debtor in taking the stand that he resides somewhere else had been totally opposite to what is stated in the written statement and that itself would reflect avoiding the order of Court. A person having a decree since 1994 would not indulge into such activities until and unless necessitating him in seeking an
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injunction, for the sake of repetition the decree of 1994 upheld way back in 1997 still holding the field.
10. On consideration of the evidence brought on record with no effective rebuttal, the testimony and report of the Commissioner which is admissible under Sub Rule 4 of Rule 10 of Order XXVI of the Code of Civil Procedure and the examination of the subsequent purchaser, the finding of the
trial court in ordering the petitioner/revision petitioner/judgment debtor, 3 months of civil imprisonment or fine or both is fair and just. However, considering the fact that the petitioner is a handicapped person and the ratio culled out in judgment of **Rajappan's case** (supra) the imposition of civil imprisonment can always be compensated in terms of money if the situation so warrants, I am of the view that the order of the trial court can be modified by compensating the decree holder in terms of money. This matter was therefore, taken up and there was some deliberation on the same. In order to
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bring the controversy at rest and with no further violation thereof as undertaken by the learned counsel for the judgment debtor the course of the that a during argument, compensation of Rs.75,000/- in all, to be paid in cheque or cash, within a period of one month from preparation of certified copy of order, against valid receipt is more reasonable and justified.
11. At this stage, the learned counsel prays for extension of time, considering the handicappedness of the petitioner, for another one month. The aforementioned prayer
is accepted. It is made clear that the impugned order is modified by upholding the finding qua the violation of the decree. The compensation of Rs.75,000/- shall be paid to the 4[th] respondent/subsequent purchaser, within a period of 2 months against receipt. In case of failure, as noted above, the order under challenge will come into force and the decree holder/4[th] respondent will be at liberty to seek implementation
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of the order already passed in accordance with law. It is further made clear that in case, the 4[th] respondent undertakes the construction none of the parties to the lis or at their behest agents, assignees would not cause any interference or trespass for re-errecting the demolished wall reflected in Ext.C2 plan. The revision petition stands disposed of.
## **Sd/-**
**AMIT RAWAL, JUDGE**
Skk//191219
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## **APPENDIX**
**REVISION PETITIONERS' EXHIBITS:**
**ANNEXURE A-1 THE PHOTOCOPY OF THE DISABILITY CERTIFICATE OF THE REVISION PETITIONER ANNEXURE A-2 THE PHOTOCOPY OF THE JUDGMENT DATED 28.07.2016 IN O.P. NO.1812/16 OF THIS HON'BLE COURT**
**RESPONDENTS' EXHIBITS: NIL**
