Karl Heinz Damschen and Anneliese Klarchen v. Joseph Anandkumar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **THURSDAY, THE 27TH DAY OF OCTOBER 2016/5TH KARTHIKA, 1938** ## **CRP.No. 428 of 2016 ()** **----------------------CMA.NO. 13/2016 OF II ADDL.DISTRICT COURT, ERNAKULAM** **---------------------** ## **REVISION PETITIONER(S)/APPELLANTS:** **------------------------------------------------------------** **1. KARL HEINZ DAMSCHEN, AGED 73, S/O. KARL DAMSCHEN, RESIDING AT SUI HOUSE, DOOR NO.VIII/2010 B, 1ST FLOOR, MAULANA AZAD ROAD, CHAKKAMADAM, MATTANCHERRY, KOCHI-682 002** **2. ANNELIESE KLARCHEN, AGED 72, W/O. KARL HEINZ DAMSCHEN, RESIDING AT SUI HOUSE, DOOR NO.VIII/2010 B, 1ST FLOOR, MAULANA AZAD ROAD, CHAKKAMADAM, MATTANCHERRY, KOCHI-682 002** **BY ADVS.SRI.S.GOPAKUMAR SMT.T.M.BINITHA** ## **RESPONDENT/RESPONDENT:** **--------------------------------------------** **JOSEPH ANANDKUMAR, AGED 57, S/O. JOSEPH LEENS, VIII/2010, SUI HOUSE, MAULANA AZAD ROAD, CHAKKAMADAM, MATTANCHERRY, KOCHI-682 002** **THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27-10-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** ## **CRP.NO.428/2016** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** - **ANNEX 1 COPY OF THE PLAINT IN OS.NO.23/2015 ALONG WITH DOCUMENTS** - **ANNEX 2 COPY OF THE I.A.NO.457/2015 IN OS.NO.23/215 (IA.NO.2103/2015 IN VACATION COURT)** - **ANNEX 3 COPY OF THE INTERIM INJUNCTION ORDER DATED 25/4/2015** - **ANNEX 4 COPY OF THE DUPLICATE RENT AGREEMENT ISSUED BY RESPONDENT TO REVISION PETITIONERS DATED 11/04/2005** - **ANNEX 5 COPY OF THE JOINT STATEMENT DATED 27/3/2005 PREPARED BY THE RESPONDENT AND 1ST PETITIONER AS REGARD TO THE EXPENSES INCURRED BY THE 1ST REVISION PETITIONER IN THE TENANTED PREMISES AT THE TIME OF TAKING POSSESSION** - **ANNEX 6 COPY OF THE COMPLAINT GIVEN TO THE LOCAL POLICE BY THE REVISION PETITIONERS DATED 25/2/2015** - **ANNEX 7 COPY OF THE LETTER ISSUED BY THE CONSULATE GENERAL OF THE FEDERAL REPUBLIC OF GERMANY, BANGALORE DATED 09/04/2015 TO THE MAYOR, COMMISSIONER OF POLICE AND THE ASST. COMMISSIONER OF POLICE SEEKING TO PROVIDE PROTECTION TO THE REVISION PETITIONERS.** - **ANNEX 8 COPY OF THE TEMPORARY CONTRACT BETWEEN 1ST REVISION PETITIONER AND M/S. G4S SECURE SOLUTIONS (INDIA) PRIVATE LIMITED DATED 13/04/2015 ENGAGING SECURITY FOR THE TENANTED PREMISES** - **ANNEX 9 COPY OF THE RECEIPT FOR RENT ADVANCE AND LATEST RENT RECEIPTS ISSUED BY THE RESPONDENT** - **ANNEX 10 COPY OF THE COUNTER AFFIDAVIT FILED BY THE REVISION PETITIONER'S IN IA.NO.457/2015 IN OS.NO.23/2015 DATED 22/05/2015** - **ANNEX 11 COPY OF THE ADVANCE PETITION FILED BY THE REVISION PETITIONERS AS IA.NO.554/2015 IN OS.NO.23/2015 DATED 10/06/2015** - **ANNEX 12 COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENT IN IA.NO.554/15 IN OS.NO.23/2015 DATED 18/06/2015** - **ANNEX 13 COPY OF THE ORDER IN IA.NO.554/2015 IN OS.NO.23/2015 DATED 13/07/2015** **2/-** **-2-** **CRP.NO.428/2016** |**ANNEX**|**14**|**COPY OF THE IA NO.728/2015 IN OS.NO.23/2015 DATED 30/07/2016**| |---|---|---| |||**FILED BY THE REVISION PETITIONERS FOR CONSIDERING THE**| |||**QUESTION OF MAINTAINBILITY.**| |**ANNEX**|**15**|**COPY OF THE ORDER IN OP(C).NO.3034/2015 DATED 11/12/2015**| |**ANNEX**|**16**|**COPY OF THE ORDER IN OP(C).NO.19/2016 DATED 05/01/2016**| |**ANNEX**|**17**|**COPY OF THE IA.NO.460/15 IN OS.NO.23/2015 DATED 27/04/2015 FILED**| |||**BY THE RESPONDENT**| |**ANNEX**|**18**|**COPY OF THE IA.NO.461/15 IN OS.NO.23/2015 DATED 27/04/2015 FILED**| |||**BY THE RESPONDENT**| |**ANNEX**|**19**|**COPY OF THE IA.NO.707/2015 IN OS.NO.23/2015 DATED 24/07/2015**| |||**FILED BY THE RESPONDENT**| |**ANNEX**|**20**|**COPY OF THE COUNTER AFFIDAVIT FILED BY THE REVISION**| |||**PETITIONERS IN IA.NO.707/2015 IN OS.NO.23/2015 DATED 30/07/2016**| |**ANNEX**|**21**|**COPY OF THE CERTIFIED COPY OF WPC.NO.11069/2010 WITH**| |||**EXHIBITS.**| |**ANNEX**|**22**|**COPY OF THE DOCUMENTS OBTAINED FROM DEPUTY CHIEF**| |||**ENGINEER, KSEB, ERNAKULAM UNDER THE RIGHT TO INFORMATION**| |||**ACT 28/01/2016**| |**ANNEX**|**23**|**COPY OF THE DOCUMENTS OBTAINED FROM ASSISTANT ENGINEER,**| |||**KSEB, MATTANCHERRY UNDER THE RIGHT TO INFORMATION ACT**| |||**17/03/2016.**| |**ANNEX**|**24**|**COPY OF THE DOCUMENTS OBTAINED FROM THE KOCHI**| |||**CORPORATION, REVENUE WING DATED 23/03/2016**| |**ANNEX**|**25**|**COPY OF THE DOCUMENTS OBTAINED FROM THE KOCHI**| |||**CORPORATION, PUBLIC HEALTH WING 10/05/2016**| |**ANNEX**|**26**|**COPY OF THE ARTICLES OF CONVENTION ABOLISHING**| |||**REQUIREMENT OF LEGISLATION FOR FOREIGN PUBLIC DOCUMENTS**| |||**(APOSTILLE CONVENTION)**| |**ANNEX**|**27**|**COPY OF THE LIST OF MEMBERS OF CONVENTION ABOLISHING**| |||**REQUIREMENT OF LEGISLATION FOR FOREIGN PUBLIC DOCUMENTS**| |||**(APOSTILLE CONVENTION)**| |**ANNEX**|**28**|**COPY OF THE ORDER PASSED BY THE LEARNED SUB COURT, KOCHI**| |||**DATED 06/02/2016 IN IA.NO.457/2015 IN OS.NO.23/2015**| |**ANNEX**|**29**|**COPY OF THE ORDER PASSED BY THE LEARNED SUB COURT, KOCHI**| |||**DATED 06/02/2016 IN IA.NO.707/2015 IN OS.NO.23/2015.**| **/TRUE COPY/** **P.A.TO JUDGE** **sts** ## **K.RAMAKRISHNAN, J.** ---------------------------------------------- **C.R.P.No.428 of 2016** ------------------------------------------------Dated this the 27[th ] day of October, 2016 ## **ORDER** This revision has been filed by the revision petitioner challenging the order in C.M.A.13/2016 of 2[nd] Additional District Court, Ernakulam to the extent which is detrimental to them under Section 115 of the Code of Civil Procedure. 2. It is alleged in the petition that the respondent herein filed OS 23/2015 before the Sub Court, Kochi for mandatory injunction directing the revision petitioners to vacate the premises and other consequential reliefs. The suit was earlier filed before the vacation court as I.A.2103/2015 and the vacation court has granted interim injunction restraining the defendant and his men from trespassing into the plaint schedule property and occupying the plaint schedule premises. When the case was sent to the regular court, the suit was numbered as OS 23/2015 and injunction application was numbered as IA 457/2015 and after hearing both sides, the court below had passed Annexure-28 order and the interim injunction granted was made absolute. The respondent also filed IA 707/2015 against the revision petitioners for prosecuting them for violating the injunction order under Order 39 Rule 2A of the Code of Civil Procedure and after hearing both sides the Sub Judge by Annexure-29 order found the _**C.R.P.No.428 of 2016**_ 2 revision petitioners guilty for violation of injunction and directed them to vacate the building mentioned therein and also to detain them in civil prison for two months. Both these orders were challenged by the revision petitioners by filing C.M.A.Nos.12/2016 and 13/2016 before the District Court, Ernakulam, which were made over to 2[nd] Additional District Court, Ernakulam for disposal. Learned Additional District Judge. after hearing both sides allowed C.M.A. 12/2016, vacating the interim order of injunction granted by the court below and dismissed the injunction application filed by the respondent and allowed C.M.A.13/2016 in part, confirming the order finding the revision petitioners guilty of violation of injunction order, but set aside the penalty imposed and it was remanded to the court below for considering the penalty imposed afresh. The revision is filed against the order passed by the court below to the extent not setting aside the penalty imposed as well as finding him guilty of violation of injunction order passed. 3. Heard Sri.S.Gopakumar, counsel appearing of the revision petitioner. 4. The counsel for the revision petitioner submitted that, he had produced certain additional documents which were not considered by the appellate court before coming to the conclusion that there was _**C.R.P.No.428 of 2016**_ 3 violation of injunction order. The question that they were in possession of the property even at the time when the injunction was passed has not been considered by the court below. If that has been considered, then there is no question of violation of injunction arises and there is no willful or deliberate violation on the part of the revision petitioners warranting any action against them for that purpose. 5. The fact that there was an interim injunction granted against the revision petitioners from trespassing into the plaint schedule property and being in possession of that property is not in dispute. Though it was in the nature of a prohibitory injunction what was sought to be implemented was mandatory injunction, directing them to not to enter the property. That impugned order was passed by the vacation court and later after hearing both sides, that was made absolute by the trial court by Annexure-A28 order. During the pendency of that petition admittedly the revision petitioners and their men were occupying the petition schedule property from where the entry to which was restrained by the impugned injunction order. According to them, they were in possession of the property for more than ten years on the basis of the rental agreement entered into between the plaintiff and themselves and they are conducting a business concern in the premises and staying there and doing some _**C.R.P.No.428 of 2016**_ 4 business along with their staff members for long time. Even on the date on which the injunction order was passed, the staff members where occupying in the premises. The petitioners went their native place for renewing the visa, during that time the present suit has been filed and injunction has been obtained. It may be mentioned here that, an injunction order has been passed and they have been in possession of the premises in spite of the injunction order is not in dispute. 6. It is settled law that when the injunction order was in force, if it was violated, though it was later vacated is not a ground to justify the violation that has been committed. This was considered by the appellate court, relying on the decision of this court in _**Cheruvannoor Nallalam Grama Panchayath v. Ravi**_ (2006(1) KLT 546), relying on the earlier decisions of this court on this aspect. It is settled law that even if an injunction suit has been dismissed, during the pendency of the injunction order, if any violation is committed, the prosecution under Order 39 Rule 2A is maintainable against violating party and such a petition is also maintainable. So under such circumstances, the court below as well as the appellate court were perfectly justified in coming to the conclusion that there was violation of the injunction order and the appellate court did not rightly interfere with the finding of the court below to that extent. However, the _**C.R.P.No.428 of 2016**_ 5 appellate court found that certain facts were suppressed and the quantum of penalty imposed is harsh and also vacated the interim injunction order granted, thought it is necessary to reconsider the question of quantum of penalty to be imposed and for that purpose it is remanded for the court below. This court do not find any reason to interfere with the discretion exercised by the appellate court and remanding the matter for considering the question of quantum of penalty to be imposed. The documents produced by the petitioner before this court or before the appellate court to prove their possession even at the time when the suit was filed is not sufficient to interfere with the finding regarding guilt of violation of injunction passed by the court below. But at the same time, those things can be considered by the court below for the purpose of considering the question of quantum of penalty to be imposed, for which purpose the case has been remitted to the court below by the Additional District Judge. If the documents produced by the revision petitioner before the court below is produced before the sub Court, then Sub Judge can consider those documents also for the purpose of considering the question of penalty imposed, for which it has been remitted to that court by the appellate court. With the above observation this court dismissed the revision 6 ## _**C.R.P.No.428 of 2016**_ petition _in limine_ . Registry is directed to communicate the judgment to the court below at the earliest. _Sd/-_ ## **(K. Ramakrishnan, Judge)** //True Copy// P.A. to Judge ss