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**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW** **MONDAY, THE 26TH DAY OF FEBRUARY 2018 / 7TH PHALGUNA, 1939** **FAO.No. 11 of 2017** **AGAINST THE ORDER DATED 22.07.2016 IN IA NO.2297/2011 IN AS NO.28/2009 OF THE SUB JUDGE, PALA** ## **APPELLANT(S)/COUNTER PETITIONERS 2,5 & 7 /RESPONDENTS 2,5 & 7:** - **1 ANTONY DEVASIA, ERUVELIKUNNEL HOUSE, RAMAPURAM KARA. 2 OUSEPPACHAN, ERUVELIKUNNEL HOUSE, RAMAPURAM KARA 3 SUNNY, ERUVELIKUNNEL HOUSE, RAMAPURAM KARA.** **BY ADV.SRI.P.C.HARIDAS** **RESPONDENT(S)/PETITIONER-CR.PETITIONERS 1,3,4,6 & 8/APPELLANT-RESPONDENTS 1,3,4,6 & 8:** **==> picture [373 x 247] intentionally omitted <==** **----- Start of picture text -----**<br> 1. K.A.AUGUSTINE, KULIRIYEL HOUSE,<br> KIZHATHIRI.P.O., RAMAPURAM VILLAGE- 686576<br>2. DEVASIA, ERUVELIKUNNEL HOUSE,<br> RAMAPURAM KARA, RAMAPURAM VILLAGE 686576 (DIED)<br>3. ALEYAMMA<br> ERUVELIKKUNNEL HOUSE, RAMAPURAM KARA-686576<br>4. MARY<br> ERUVELIKKUNNEL HOUSE, RAMAPURAM KARA-686576<br>5. ANCIS<br> ERUVELIKKUNNEL HOUSE, RAMAPURAM KARA-686576<br>6. LORANCE<br> ERUVELIKKUNNEL HOUSE,RAMAPURAM KARA-686576<br> R1 BY ADV. SRI.C.C.ABRAHAM<br> R1 BY ADV. SRI.V.J.JAMES (BY VAKALATH)<br> R3-R6 BY ADV. SRI.V.A.AJAY KUMAR (ORDER DATED 24.08.2017)<br>**----- End of picture text -----**<br> **THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 26-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **“CR”** ## **K. ABRAHAM MATHEW, J.** -------------------------------------------------- F.A.O No. 11 of 2017 -------------------------------------------------- Dated this the 26[th] day of February, 2018 ## **J U D G M E N T** In an application filed by the first respondent under Order XXXIX Rule 2A CPC the court below has passed the following order: “... respondent Nos.4, 7, 9 & 10 are directed to restore status quo in regard to the schedule properties as at the time of disposal of the appeal within a period of one month, on failure of which the same shall be got executed through process of court and the expenses met for the same recovered from them and for that matter, the property of the said respondents shall remain in attachment and if the violation still persists they shall be detained in civil prison for a period of 2 months or till the expenses are met by them whichever is earlier” (sic). Its correctness is assailed. 2.The first respondent was the plaintiff. He claimed that the plaint schedule property was in his ownership; but a F.A.O No. 11 of 2017 **==> picture [20 x 8] intentionally omitted <==** mistake crept into the resurvey of the property. In the suit he prayed for correction of the mistake in the survey records and for fixation of the boundary separating his property from the adjoining property belonging to the appellants and some others. The suit was dismissed on 26.11.2008. The judgment and the decree were challenged in appeal, which was dismissed on 21.11.2011. Thereafter, the first respondent filed an application for restraining the appellants and others from committing mischief and making any construction in the plaint schedule property till an appeal was filed against the judgment and the decree. The learned Sub Judge posted the application to 29.11.2011, on which day he passed the following order: “Heard both sides. Maintain status quo as available till the appeal period is over or the appeal is over which happened first.” (sic) On 13.12.2011 the first respondent filed an application alleging that the appellants and some others violated the order of status quo by making constructions in the property from 02.12.2011. After taking evidence the F.A.O No. 11 of 2017 ..3.. ## learned Sub Judge passed the impugned order. - 3.Heard the learned counsel appearing for the appellants and the first respondent. - 4.There was only one schedule attached to the plaint filed by the first respondent. That was of the property he claimed to be in his ownership. The trial court found that there is a boundary separating his property from the adjoining property belonging to the appellants. On this finding and the findings on the other issues, the trial court dismissed the suit. The judgment and the decree were confirmed in appeal. Within a few days of the dismissal of the appeal the learned appellate judge passed the impugned order of status quo. - 5.Directing a party to maintain status quo is restraining him from doing anything. In effect it is an order of injunction restraining the party from disturbing the situation that currently exists. That is why its violation attracts Order XXXIX Rule 2A CPC. An order of status quo shall not be passed if an order of injunction may not F.A.O No. 11 of 2017 ..4.. be passed on the facts of the case. If the party is entitled to an order of injunction, the court shall pass that order and not an order of status quo. The converse also is true. If a party is not entitled to an order of injunction, the court shall not pass an order of status quo. To grant an order of injunction, the court has to record its reasons. The requirement cannot be dispensed with by passing an order of status quo. Even in the case of an order of status quo the court has to record its reasons. Before an order of status quo is passed the court should satisfy itself what the status quo is. If there is no means to ascertain it, the court shall not pass such an order. Passing order of status quo without knowing what the status quo is illegal. If an order of status quo is necessary, the court shall indicate in its order the status quo which the person who is directed to maintain it shall not disturb. The reason as observed in **Bharat Coking Coal Ltd.** v. **State of Bihar** [1987 Supp. SCC 395] is that the expression F.A.O No. 11 of 2017 ..5.. status quo “is undoubtedly a term of ambiguity and at times gives rise to doubt and difficulty”. ## 6.In **Kishore Kumar Khaitan & Another** v. **Praveen** **Kumar Singh** [AIR 2006 SC 1474] the Supreme Court held: “It is necessary to notice at this stage that in an original suit of this nature, it was not appropriate for the Additional District Judge to pass an order directing the parties to maintain status quo, without indicating what the status quo was. If he was satisfied that the appellant before him had made out a prima facie case for an ad interim ex parte injunction and the balance of convenience justified the grant of such an injunction, it was for him to have passed such an order of injunction. But simply directing the parties to maintain status quo without indicating what the status quo was, is not an order that should be passed at the initial stage of a litigation, especially when one court had found no reason to grant an ex parte order of injunction and the appellate court was dealing with only the limited question whether an ad interim order of injunction should or should not have been granted by the trial court, since the appeal was only against the refusal of an ad interim ex parte order of injunction and the main application for injunction pending suit, was still pending before the trial court itself. Therefore, we are prima facie of the view that the Additional District Judge ought not to have passed an equivocal order like the one passed in the circumstances of the case. But of course, that aspect has relevance only to the extent that before ordering an interim mandatory injunction or refusing it, the court has first to consider whether the plaintiff has proved that he was in possession on the date of suit and on the date of the order and he had been dispossessed the next day. Unless a clear prima facie finding that the plaintiff was in possession on those dates is entered, F.A.O No. 11 of 2017 ..6.. an order for interim mandatory injunction could not have been passed and any such order passed would be one without jurisdiction.” 7.It is now well settled that the provision in Order XXXIX Rule 2A CPC is punitive in nature. The rule provides for punishment [ **Tayabbhai M. Bagasarwalla** v. **Hind Rubber Industries Pvt. Ltd.** AIR 1997 SC 1240]. In **Samee Khan** v. **Bindu Khan** [AIR 1998 SC 2765] the Supreme Court held that detaining in civil prison the party who disobeys the order of the court is a mode of punishment for his being guilty of such disobedience. In **Food Corporation of India** v. **Sukh Deo Prasad** [(2009) 5 SCC 665] the Supreme Court held: “The power exercised by a court under Order 39 Rule 2-A of the Code is punitive in nature, akin to the power to punish for civil contempt under the Contempt of Courts Act, 1971. The person who complains of disobedience or breach has to clearly make out beyond any doubt that there was an injunction or order directing the person against whom the application is made, to do or desist from doing some specific thing or act and that there was disobedience or breach of such order. While considering an application under Order 39 Rule 2-A, the court cannot construe the order in regard to which disobedience/breach is alleged, as creating an obligation to do something which is not mentioned in the “order”, on surmises, suspicions and inferences. The power under Rule 2-A should be exercised with great caution and responsibility.” F.A.O No. 11 of 2017 **==> picture [20 x 8] intentionally omitted <==** 8.As mentioned earlier, the trial court found that there was a boundary of granite stones separating the property of the appellants from the first respondent's property. That was the status quo as on the date of disposal of the suit. The intention of the court has to be gathered from the prayer in the application in which the order of status quo was passed. The prayer was to restrain the appellants and others from committing any mischief or making any construction in the plaint schedule property. - 9.The order of status quo passed by the court was not supported by any reason. 10.The first respondent alleged that the appellants and some others violated the order of status quo passed by the court. It is not in dispute that the third defendant died about four years before the passing of the order of status quo. Still he also was alleged to have violated the order. The very fact that a person who died a few years before the passing of the order by the court was made a F.A.O No. 11 of 2017 **==> picture [20 x 8] intentionally omitted <==** respondent in that application itself indicates lack of bona fides in the allegation. 11.The first respondent was examined as PW1 and a photographer as PW2. In the affidavit filed by the first respondent in lieu of his examination in chief there is no mention that he saw any of the appellants do anything in the property in violation of the order of the court. The photographs allegedly taken by PW2 to prove violation were marked Ext.A2 series. A compact disc made on the basis of the photographs was marked Ext.A1. These photographs do not reveal anything. The photographer did not depose that he saw any of the appellants do anything in the property. His evidence will not help the first respondent. 12.The learned counsel appearing for the first respondent submitted that the commission report proved in the trial court is sufficient to prove the status quo. I cannot agree. The suit was dismissed on 26.11.2008. The appeal was filed in 2009. The appeal was dismissed on F.A.O No. 11 of 2017 **==> picture [20 x 8] intentionally omitted <==** 21.11.2011. The application under Order XXXIX Rule 2A CPC was filed on 25.11.2011. Even if it is assumed that there was disturbance of status quo in the property, the probability of it taking place after the dismissal of the suit and before the filing of the appeal and after the dismissal of the appeal and before the filing of the violation petition cannot be ruled out. 13.In any view of the matter, the application filed by the first respondent under Order XXXIX Rule 2A CPC was not at all maintainable. The learned Sub Judge went wrong in holding that the appellants violated the order of status quo. The order is liable to be set aside. In the result, this appeal is allowed with costs. The impugned order is set aside. The appellants are entitled to their costs in the court below also. ## Sd/- **K. ABRAHAM MATHEW JUDGE** bka/