NJARALAPPUZHA DEVASWOM represented by its Manager and Administrator NEELAKANDAN NAMBOOTHIRI v. SANTHAMMA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 20TH DECEMBER 2011 / 29TH AGRAHAYANA 1933 CRP.No. 841 of 2007() --------------------CMA.6/2005 of SUB COURT, PALA OS.206/2002 of MUNSIFF COURT, PALA (IA.NO.1379/2002) .................... REVN. PETITIONERS: APPELLANTS/COUNTER PETITIONERS --------------------------------------------------- 1. NJARALAPPUZHA DEVASWOM REPRESENTED BY ITS MANAGER AND ADMINISTRATOR NEELAKANDAN NAMBOOTHIRI, KEEZHEDATHUTHOTTIYIL ILLOM, VAYALA KARA, ELACKADU VILLAGE MEENACHIL TALUK 2. K.N.NEELAKANDAN NAMBOOTHIRI, AGED 52 YEARS S/O.NEELAKANDAN NAMBOOTHIRI, KEEZHADATHTHOTTIYIL ILLOM VAYALA KARA, ELACKADU VILLAGE MEENACHIL TALUK 3. RAMAN NAMBOOTHIRI, AGED 50 YEARS S/O.NEELAKANDAN NAMBOOTHIRI KEEZHADATHTHOTTIYIL ILLOM, VAYALA KARA ELACKADU VILLAGE, MEENACHIL TALUK BY ADV. SRI.M.NARENDRA KUMAR SRI.R.SUDHIR RESPONDENT: RESPONDENT/PETITIONER ------------------------------------ SANTHAMMA, AGED 52 YEARS W/O. MATHAI, KARIMBANACKAL, VAYALA KARA ELACKADU VILLAGE ADV. SRI.P.C.HARIDAS FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15/12/2011, THE COURT ON 20/12/2011 PASSED THE FOLLOWING: ## **M.L.JOSEPH FRANCIS J.,** **- - - - - - - - - - - - - - - - - - - - - - - - - - - -** C.R.P. No.841 OF 2007 **- - - - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 20[th] day of December, 2011 ## **ORDER** This C.R.P is filed by the counter petitioners/ defendants 1 to 3 in I.A. No.1379 of 2002 in O.S. No.206 of 2002 on the file of Munsiff Court, Pala. The respondent herein was the petitioner/ plaintiff in that I.A. which was filed by her under Order 39 Rule 2A of Code of Civil Procedure for proceeding against the defendants 1 to 3 for violation of status quo order passed in that case in I.A. No. 1271 of 2002 dated 20.9.2002. 2. The case of petitioner/ plaintiff in I.A. No. 1379 of 2002 in O.S. No. 206 of 2002 is as follows. The suit was instituted for declaration of easement right over plaint item No.3 road and to restrain defendants by a permanent prohibitory injunction from causing any obstructions in the plaint item No.3 road. Along with C.R.P. No.841 OF 2007 : 2 : the suit, I.A. No.1271 of 2002 was filed for a temporary injunction restraining the respondents from causing such obstructions in the plaint item No.3 road till the disposal of the suit. In the above application, the Munsiff Court, Pala passed an order on 20.9.2002 directing the parties to maintain status quo in respect of plaint item No.3 road as per the position found by the Commissioner, who would conduct a local investigation on that date. The above status quo order was duly served to the respondents on 21.9.2002. The advocate commissioner conducted local investigation on 20.9.2002 and found that there were no obstructions in the plaint road. However the respondents on 2.10.2002 unloaded about 7 loads of granite and country stones and thereby caused obstructions in the plaint item No.3 road. Thus it became impossible for the petitioner to take vehicle through the said plaint road. The act committed by the respondents in the above regard is a case of wilful violation of the status quo order passed and hence they are to be proceeded against for the violation of the Court order. C.R.P. No.841 OF 2007 : 3 : 3. The respondents filed objection stating that the respondents have not violated the status quo order passed by the Munsiff Court and that the commission report filed is false and untrue. It is further stated that the description of plaint item no.3 road in the commission report is against the description in the plaint schedule and the description in the 4[th] paragraph of the plaint. They further state that they have not made any obstructions in the plaint road as described in the 4[th] paragraph of the plaint. The petitioners are trying to mislead the Court regarding the description of plaint road and to get an order against the respondents, the respondents allege. The respondents further state that the road starting from plaint item no.2 property towards the quarry is not mentioned in the plaint schedule description and that being the commissioner need not have ascertained such a road. They contend that there is no order to maintain status quo in respect of such a road and that the I.A. has to be dismissed with costs. 4. Evidence in I.A. No.1379 of 2002 was recorded along with the suit. Pws 1 to 3 and Dws1 and 2 were examined and C.R.P. No.841 OF 2007 : 4 : Exts.A1 to 4 and B1 and C1 and C2 were marked. The learned Munsiff on considering the matter found that the respondents 2 and 3 are liable to be detained in civil prison for a term of 3 months for violation of the status quo order passed by the Court and they are ordered to be detained in civil prison for a period of 3 months. Against the order the counter petitioner filed C.M.A No.6 of 2005 before the Sub Court, Pala which was dismissed confirming the order of the Court below. Against that judgment the appellants/ counter petitioners filed this C.R.P. 5. Heard the learned counsel for the revision petitioners and learned counsel for the respondent. 6. The learned counsel for the revision petitioners raised the following contentions at the time of hearing. (i) The Courts below failed to note that the right claimed by the respondent in regard to item no.3 was negatived and hence the power under Order 39 Rule 2A Civil Procedure Code is not available to punish the petitioners. C.R.P. No.841 OF 2007 : 5 : (ii) The Courts below ought to have found that there is no wilful disobedience of the order of status quo and therefore went wrong in committing the petitioners for imprisonment for 3 months. The power under Order 39 Rule 2A in regard to the two modes of punishment are only alternative and not complementary to each other. (iii) The petitioners are prepared to tender unconditional apology for the disobedience of the order of statusquo. 7. The learned counsel for the respondent relying on the decision of this Court reported in **Aravindaksha Menon v. Raghava Menon** (2007(2) KLT 427) submitted that the suit was dismissed after trial is not a ground to hold that the party who has violated the interim order should not be proceeded under Rule 2A of Code of Civil Procedure. There is no dispute that as long as the interim injunction is in force, the party against whom it is passed is bound to obey it and if he disobeys it he is liable for punishment. Even if the temporary injunction was set aside by the appellate Court, subsequently the punishment awarded for disobedience C.R.P. No.841 OF 2007 : 6 : cannot be set aside. 8. The learned counsel for the revision petitioners invited my attention to the decision of the Apex Court reported in **Samee Khan v. Bindhu Khan** (AIR 1998 SC 2765), in which it was held: “No doubt the wording as framed in Order 21, Rule 32(1) would indicate that in enforcement of the decree for injunction a judgment-debtor can neither be put in civil prison or his property can be attached or both the said courses can be resorted to. But sub rule (5) of Rule 32 shows that the Court need not resort to either of the above two courses and instead the Court can direct the judgmentdebtor to perform the act required in the decree or the Court can get the said act done through some other person appointed by the Court at the cost of the judgment-debtor. Thus, in execution of a decree the Court can resort to a threefold operation against disobedience of the judgment debtor in order to compel him to perform the act. But once the decree is enforced the judgment-debtor is free from the tentacles of Rule 32. A reading of that Rule shows that the whole operation is for enforcement of the decree. If the injunction or direction was subsequently set aside or if it is satisfied the utility of Rule 32 gets dissolved. C.R.P. No.841 OF 2007 : 7 : But the position under Rule 2-A of Order 39 is different. Even if the injunction order was subsequently set aside the disobedience does not get erased. It may be a different matter that the rigour of such disobedience may be toned down if the order is subsequently set aside.” 9. In that case the trial Court found that the defendant had put up an obstruction wall in disobedience of the order of injunction and directed him to be detained in civil prison for a period of one month and that order was confirmed by the Civil Judge. Before the High Court, defendant adopted a twin approach though he did not dispute the factual position that the impugned obstruction was made by him. Firstly, he raised a contention that the Court cannot order his detention without ordering attachment of his property. Alternatively, he pleaded for mercy of the Court on the facts that the obstruction has subsequently been removed and he has tendered unconditional apology to the Court. Learned Single Judge of the High Court of Rajasthan who heard the matter, accepted both pleas and exonerated him from punishment. C.R.P. No.841 OF 2007 : 8 : 10. In the special leave petition, the Apex Court observed: “We, therefore, disagree with the interpretation placed by the learned Single Judge in the impugned order regarding the scope of Rule 2-A of Order 39, of the Code. However, we are in agreement with him that in view of the subsequent actions done by the respondent (by removing the obstruction and by tendering unconditional apology to the Court) it is not necessary to put the respondent in prison. We, therefore, dismiss this special leave petition subject to the clarification made above regarding the legal position.” 11. In the present case, the trial Court as well as the appellate Court concurrently found that the defendants 2 and 3 wilfully violated the status quo order passed by the trial Court in I.A. No. 1271 of 2002 on 20.9.2002. The trial Court observed that the restoration of plaint schedule item no.3 road to its previous position does not arise in the wake of plaintiff's failure to establish their easement right over that road. The learned counsel for the revision petitioners submitted that the revision petitioners are tendering C.R.P. No.841 OF 2007 : 9 : unconditional apology before this Court for violation of status quo order. On accepting that unconditional apology, I am of the view that considering the facts and circumstances of the case it is not necessary to put the revision petitioners in prison. 12. Accordingly this C.R.P is allowed in part and the order in I.A. No.1379 of 2002 in O.S. No.206 of 2002 of Munsiff Court, Pala dated 14.2.2005 directing the respondents 2 and 3 to be detained in Civil prison for a period of 3 months for violation of status quo order is modified and set aside. There is no order as to costs. **M. L. JOSEPH FRANCIS, (JUDGE)** dl/