K.C. Jacob v. C. Jose Karimkuttykulathu and Achamma

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH MONDAY, THE 5TH DAY OF NOVEMBER 2012/14TH KARTHIKA 1934 OP(C).No. 2888 of 2012 (O) -------------------------CMA.12/2011 of SUB COURT, PALA IA NO.364/2010 IN OS.48/2009 of MUNSIFF MAGISTRATE'S COURT, ERATTUPETTA PETITIONER(S): ------------- K.C.JACOB, AGED 61 YEARS S/O. LATE CHACKO, KARIMKUTTYKULATHU, KOLOTH CHOONDECHERRY, BHARANANGANAM VILLAGE, MEENACHIL, KOTTAYAM DISTRICT. BY ADV. SRI.K.M.VARGHESE RESPONDENT(S): -------------- 1. C.JOSE KARIMKUTTYKULATHU, PERUNILAM, POONJAR THEKKEKKARA VILLAGE, MEENACHIL, KOTTAYAM DISTRICT-686589. 2. ACHAMMA, KARIMKUTTYKULATHU,PERUNILAM, POONJAR THEKKEKKARA VILLAGE, MEENACHIL KOTTAYAM DISTRICT-686589. ADV. SRI.T.C.SURESH MENON ) ADV. SRI.P.S.APPU ) FOR R1 & R2 ADV. SRI.A.R.NIMOD ) ADV. SRI.K.A.ANAS ) THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 05-11-2012, ALONG WITH OP(C) NO.3534/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C)NO.2888/2012 ## APPENDIX ## PETITIONER(S) EXHIBITS - EXT.P1 TRUE COPY OF THE PLAINT DATED 6TH MARCH 2009 IN O.S. NO. 48 OF 2009 ON THE FILE OF THE MUNSIFFS COURT, ERATTUPETTA. - EXT.P2 TRUE COPY OF THE WRITTEN STATEMENT DATED 11TH JUNE 2009 IN O.S. NO. 48 OF 2009. - EXT.P3 TRUE COPY OF THE INJUNCTION ORDER DATED 6TH MARCH 2009 IN I.A. NO. 269 OF 2009 IN O.S. NO. 48 OF 2009 ON THE FILE OF THE MUNSIFFS COURT, ERATTUPETTA. - EXT.P4 TRUE COPY OF THE PETITION DATED 8TH APRIL 2010 IN O.S. NO. 48 OF 2009 ON THE FILES OF MUNSIFFS COURT, ERATTUPETTA. - EXT.P5 TRUE COPY OF THE COMMISSION REPORT DATED 17TH JUNE 2010. - EXT.P6 TRUE COPY OF THE ORDER DATED 28TH MAY 2011 IN I.A. NO. 364 OF 2010 IN O.S. NO. 48 OF 2009 ON THE FILE OF MUNISIFFS COURT, ERATTUPETTA. - EXT.P7 TRUE COPY OF THE PETITION DATED 12TH JUNE 2012 IN C.M.A NO. 12 OF 2011 ON THE FILE OF THE SUB COURT, PALA. - EXT.P8 TRUE COPY OF THE JUDGMENT DATED 28TH JUNE 2012 IN C.M.A. NO. 12 OF 2011 ON THE FILES OF SUB COURT, PALA. RESPONDENTS' EXHIBITS : NIL //TRUE COPY// **THOMAS P.JOSEPH, J. ==================================== O.P(C) Nos.2888 & 3534 of 2012 ==================================== Dated this the 05[th] day of November, 2012** ## **J U D G M E N T** These Original Petitions arise from the judgment in C.M.A. No.12 of 2011 of the Sub Court, Pala which in turn was in challenge of the order dated 28.05.2011 passed by the Munsiff's Court, Erattupetta on I.A. No.364 of 2010 in O.S. No.48 of 2009. Parties are referred to as petitioner and respondents in O.P(C) No.2888 of 2012. 2. Petitioner is the defendant in O.S. No.48 of 2009 instituted by the respondents. Petitioner and the 1[st] respondent are direct brothers and that the 2[nd] respondent, aged about 67 years is their sister. The respondents sued petitioner for a decree for fixation of boundary and other reliefs. In that suit the learned Munsiff passed an interim order of injunction on 06.03.2009 restraining the petitioner from committing waste in the suit property. Later, alleging that there was willful disobeyance of that order, respondents filed I.A. No.364 of 2010 under Rule 2A of Order XXXIX of the Code of Civil Procedure (for short, “the Code”). The allegation was that by cutting down certain trees the petitioner **O.P(C) Nos.2888 & 3534 of 2012** -: 2 :- has violated the order of injunction. 3. Evidence was recorded in the trial court. When examined as D.W.1, petitioner admitted that he has cut down a few branches of a jack tree and a tamarind tree which according to him were overhanging to his house. The trial court directed detention of petitioner in the civil prison for a period of three months. 4. Aggrieved, petitioner filed C.M.A. No.12 of 2011. The learned Sub Judge while accepting the finding of the trial court that petitioner has violated the order of injunction was inclined to give some respite to the petitioner and the period of detention in the civil prison was reduced to one month. Petitioner is aggrieved and has challenged the judgment of the learned Sub Judge, in O.P(C) No.2888 of 2012. The respondents, eager to maintain the majesty of law by detaining the petitioner for the full term of three months in the civil prison, have filed O.P(C) No.3534 of 2012. 5. The learned counsel for the petitioner submits that there was no willful violation of the order of injunction by the petitioner and that it was only a bona fide act of the petitioner. According to the learned counsel, only a few branches of a Jack ## **O.P(C) Nos.2888 & 3534 of 2012** -: 3 :- tree and a tamarind tree were cut and removed as those branches were overhanging to his house. Later the Sub Divisional Magistrate also passed order in that line. 6. The learned counsel for the respondents contended that violation of the order of injunction is proved as found by the courts below in which case the court has to take a very serious note of it. The learned counsel has placed reliance on the decision in **Aravindaksha Menon v. Raghavan Menon** (2007 [2] KLT 427). 7. Since a few branches of two trees are already cut and removed, question of its restoration and for that purpose attaching the property of the petitioner or detaining him in the civil prison does not arise. In **Sreedharan v. Varghese** (1991 [2] KLT 761) it is held that attachment of the property is not a condition precedent for detention of the violator in the civil prison and that it is open to the executing court to adopt one of the two modes against the offending party. 8. The question is whether detention of the petitioner in the civil prison for three months (which is the maximum provided under Rule2A of Order XXXIX of the Code) is required or, there could be any further modification of the punishment. **O.P(C) Nos.2888 & 3534 of 2012** -: 4 :- 9. No doubt, violation of court order must be viewed seriously. That is because the majesty of the law and dignity of the court are to be maintained and nobody can to be allowed to violate that. But I am inclined to think that each case has to be decided on the facts of that case. It is not as if whenever there is a violation the maximum punishment provided in the Code has to be awarded. Various circumstances including the circumstances which the violation was done are to be looked into. 10. In this case there is an order of injunction passed on 06.03.2009 against commission of waste and it is thereafter, on 06.04.2009 with full knowledge of the interim order that petitioner has cut and removed the overhanging branches of two trees. It is not as if the trees itself are cut and removed. On the other hand what is cut and removed is only a few overhanging branches of two trees. I am inclined to think that in such a situation the courts are required to be lenient to the petitioner. I must also bear in mind that the discretionary power is vested with the court in the matter of awarding punishment. I must also notice that the petitioner and the respondents are direct brothers and their sister. In the circumstances I am inclined to think that directing the petitioner to be in the custody of the trial ## **O.P(C) Nos.2888 & 3534 of 2012** ## -: 5 :- court for a day is sufficient punishment. After all, for whatever wrong he has done, petitioner has already suffered by contesting the proceeding and being under the thereat of detention for three months as ordered by the trial court and one month as modified by the first appellate court. 11. In the above view of mine I am inclined to modify the punishment as in the custody of the trial court for a day. Resultantly, (i) O.P(C) No.2888 of 2012 is allowed in part and the punishment awarded to the petitioner is modified to the extent that he shall be in the custody of learned Munsiff, Eratupetta from 10.30 a.m to 5.00 p.m on 30.11.2012. (ii) On petitioner complying with the detention as above stated, learned Munsiff shall release him. (iii) In view of the decision in O.P(C) No.2888 of 2012, O.P (C) No.3534 will stand dismissed. ## **THOMAS P. JOSEPH, JUDGE.** ## **O.P(C) Nos.2888 & 3534 of 2012** -: 6 :- Vsv