Abdulrajak S/O Mohammdgous vs Abdul Rahiman S/O Fakruddin

By way of these writ petitions, the defendants-petitioners have challenged the order dated 04.02.2015, as passed by the Principal Senior Civil Judge,

Vijayapura, in M.A. No.27 of 2008, dismissing their appeal and confirming the order dated

07.2008, as passed by the III Additional Civil Judge (Junior Division), Vijayapura, on I.A. No.II in O.S.No.54 of 2006; whereby they were ordered

to be detained in civil prison for a period of one month for disobedience of temporary injunction issued by the Court.

The relevant factual and background aspects could be taken note of as follows: The respondent Nos.1 and 2 of these petitions filed the suit

aforesaid (O.S. No.54 of 2006) seeking perpetual injunction, while arraying the present petitioners as defendant Nos.1 and 2 and the present

respondent No.3 as defendant No.3. The plaintiffs asserted that they were in actual possession and enjoyment of the property bearing CTS No.

580/1B/5 in Ward No.4, Vijayapura. It was alleged that on the western side of the said property, another house property bearing CTS No. 580/2 was

situated; and the defendants were in illegal and unlawful possession thereof, though the same was also of the ownership of the plaintiffs.

The plaintiffs alleged that the defendants, after coming into illegal possession of the said property bearing CTS No. 580/2, had opened two doors

and a window in the wall marked as ‘AB’ in the sketch produced with the plaint, with the malicious intention to damage the electric motors

installed on the borewell and the open well situated on the suit property; and after opening the two doors, the defendants were trespassing over the suit

property and had started damaging the latrines. It was further alleged that the defendants were causing nuisance to the tenants of the property in

question, by throwing raw material in the open well and on the open space. The plaintiffs stated that despite their requests, the defendants had refused

to close the doors and the window of ‘AB’ wall and hence, they were required to be restrained by way of injunction from obstructing peaceful

possession and enjoyment of the suit property bearing CTS No. 580/1B/5 by the plaintiffs; and were further required to be directed to close the doors

and window on the wall in question.

While filing the suit aforesaid, the plaintiffs also moved an application seeking temporary injunction whereupon, the Trial Court issued an ex parte

temporary injunction restraining the defendants from obstructing the plaintiffs’ peaceful possession and enjoyment of the suit property; and from

damaging the shop, latrine, wells and the electric motor, by trespassing over the suit property.

It had been the case of the plaintiffs in the application I.A. No. II moved under Order XXXIX Rule 2-A of the Code of Civil Procedure

(‘CPC’) that the order so passed by the Court was sent to the defendants-petitioners but, the registered post covers returned with the

endorsement ‘not claimed'; and even the suit summons and the application notices also returned with the endorsement that the door was locked.

While alleging that the defendants were intentionally avoiding to appear before the Court, the plaintiffs also alleged that on 01.04.2006, at about

00 p.m., the defendants-petitioners broke open the door of a room in which the electric motor was installed, and took away some material lying

therein. The plaintiffs also produced certain photographs in support of these assertions and submitted that the defendants-petitioners were guilty of

disobedience of the temporary injunction issued by the Court.

The defendants-petitioners, in their objections to the application so filed by the plaintiffs, maintained that they had not received any summons or

registered post notices earlier; that they received the notices on I.A. No. II through registered post only on 19.04.2006 and had no knowledge about

the suit before this date; and that there was no question of any disobedience of the order passed by the Court. The petitioners also attempted to allege

that the plaintiffs had managed the postal endorsements in collusion with the postal authorities. The petitioners denied any act of trespass or damage to

the property by them and, on the contrary, alleged that the plaintiffs had damaged certain portions of the property in question.

The Trial Court, after taking evidence and after having heard the parties, proceeded to decide the application I.A. No. II by the impugned order

dated 03.07.2008. The Trial Court took the view that the postal endorsement over the notices sent to the defendants-petitioners, of being ‘not

claimed’, would be deemed to be of sufficient service; and while holding that the plaintiffs had willfully disobeyed the injunction granted by the

Court, ordered their detention in civil prison for a period of one month.

In the appeal filed by the defendants-petitioners (M.A. No. 27 of 2008) against the order aforesaid, the parties also moved applications with

reference to Order XLI Rule 27 CPC for production of additional documents. By way of an application-I.A. No. V, the petitioners sought permission

to produce the copies of judgment and decree passed in O.S. No.385 of 2005 and R.A. No.60 of 2012 but, this application was disallowed on the

consideration that the documents sought to be filed were not relevant for the purpose of the appeal. The plaintiffs-respondents, on the other hand,

sought permission to produce documents-Exs. P-25 to P-27 marked in the proceedings of I.A. No. II in O.S. No.54 of 2006. This application was

allowed as not opposed on behalf of the present petitioners and the registered postal cover and acknowledgement, as sought to be referred to by the

plaintiffs, were taken on record.

On the merits of appeal, the Appellate Court endorsed the views of the Trial Court that the expression ‘not claimed’ was akin to that of

refusal by the addressee and the service was required to be taken as sufficient on such an endorsement. The Appellate Court was further of the view

that the plaintiffs have proved disobedience of temporary injunction by the defendants-petitioners, when they had removed the latrine and had caused

damage to the staircase. Accordingly, the Appellate Court dismissed the appeal and confirmed the order passed by the Trial Court.

In these writ petitions in challenge to the orders so passed by the subordinate Courts, learned counsel for the defendants-petitioners has urged that

the subordinate Courts have acted wholly illegally in assuming knowledge of the petitioners about the order for temporary injunction, without

considering the specific admission of the plaintiff (PW-1), that there were no documents to show that the service of the Court order was indeed

effected on the petitioners. Learned counsel for the defendants-petitioners has contended that the petitioners were not aware of the ex parte injunction

against them until 19.04.2006, when they received the notice of I.A. No.

II in the suit, and therefore, no case of disobedience is made out. Learned counsel has also contended that without specific pleadings and particulars

and without cogent evidence, the subordinate Courts have assumed some actions in relation to the property in question only on the basis of certain

photographs placed on record but, without noticing the fact that the plaintiff (PW-1) in his cross-examination, clearly admitted that he was unable to

say as to on which date, the photographs were taken; and the findings that the defendants-petitioners were guilty of disobedience, being based only on

surmises and assumptions, deserve to be set aside.

Apart from the above, on the matter being taken up for hearing, learned counsel for the petitioners also pointed out that after filing of these writ

petitions, the main suit, being O.S. No. 54 of 2006, was dismissed by the Trial Court on 29.04.2016; and the regular appeal, being R.A. No.52 of 2016,

as filed by the plaintiffs, was also dismissed by the Appellate Court on 19. 04.2017. Learned counsel has filed I.A. No. 1 of 2018 in this appeal seeking

permission to produce the copies of aforesaid judgment and decree dated 29.04.2016 and 19.04.2017. Learned counsel for the defendants-petitioners

has argued that in view of the categorical finding in the main suit that the petitioners have not caused any damage to the property in question, the

impugned orders deserve to be set aside and the proceedings under Order XXXIX Rule 2-A CPC deserve to be dropped. In support, learned counsel

has referred to and relied upon the decision of the Supreme Court in the case of Kanwar Singh Saini v. High Court of Delhi : (2012) 4 SCC 307 and

that of Punjab and Haryana High Court in the case of Kirpal Singh & Others v. Satish Kumar Sabharwal and Others : (2007) 147 PLR 209.

Learned counsel for the respondents, seeking to support the orders impugned, has submitted that it had been a clear case of avoidance to accept

the Court processes by the petitioners and then, of disobedience of temporary injunction; and hence, the subordinate Courts have not committed any

illegality in passing the orders impugned.

For being relevant and having direct bearing on the subject-matter of these petitions relating to supplemental proceedings in the main suit, the

aforesaid judgment and decree dated 29.04.2016 in the suit (O.S. No. 54 of 2006) and dated 19.04.2017 in the regular appeal (R.A. No.52 of 2016)

have been taken on record.

Having given thoughtful consideration to the rival submissions and having examined the record, this Court is clearly of the view that the orders

impugned cannot be sustained and deserve to be set aside.

The supplemental proceedings on I.A. No. II under Order XXXIX Rule 2-A CPC, leading to the impugned order dated

07.2008 that was confirmed in appeal on 04.02.2015, had taken place in the suit for perpetual injunction (O.S. No.54 of 2006). Indisputably, the said

suit had gone to trial and was ultimately dismissed by the Trial Court by the judgment and decree dated 29.04.2016; and the appeal filed by the

plaintiffs (R.A. No.52 of 2016) was also dismissed on 19.04.2017.

In the main suit, the Trial Court had framed the following issues for determination of the matters in controversy:

“1. Whether plaintiffs prove that they are in actual possession and enjoyment of suit property including AB wall as shown hand sketch map of

plaint?

Whether plaintiffs prove that they are owners of property bearings CTS No.580/2 measuring 125 sq.yards and AB wall is constructed by their

ancestors and to safeguard the privacy of tenants two doors and windows were closed by their ancestors?

Whether plaintiffs prove that defendants opened two doors and widow in AB wall and started damage to latrines and open wall by trespassing the

suit property and throw raw materials in the open space and open well and causing nuisance to the privacy of tenants?

Whether defendants prove that plaintiffs have house property bearing CTS NO.580/2 to defendant NO.3 under oral gift deed dtd:

08.1997 defendant No.3 taken possession and family settlement, defendant No.1 and 2 are in possession of said property as per oral gift deed

executed by defendant No.3?

Whether defendants prove that AB wall is an independent wall and they are using windows and doors in the said wall since 07.08.1997 for air and

light?

Is there cause of action?

Whether plaintiffs are entitled to the relief as prayed in the plaint?

What order or decree?â€​

It is noticed that the Trial Court dismissed the suit while answering issue Nos.1, 4 and 6 in the affirmative and issue Nos.2, 3, 5 and 7 in the

negative. In the appeal preferred by the plaintiffs (R.A. No.52 of 2016), the Appellate Court framed the following points for determination:

Whether the plaintiffs have established that defendants are causing illegal interference and obstruction in use and enjoyment of the suit property

bearing CTS. No.580/1B/5 situated at ward No.IV, Vijayapura?

Whether, the trial court is justified in giving its findings on the ownership of the defendants over the property bearing CTS. No.580/2 and oral gift,

while considering issues No.2 to 5?

Whether there are any reasons or grounds made out by the plaintiffs to interfere with the judgment and decree of the trial Court?

Whether application filed by the defendants under Order 41 rule 27 deserves to be allowed?

What order?

The Appellate Court, while answering the relevant points 1 to 4 aforesaid in the negative, dismissed the appeal but then, the findings of the Trial

Court on issue Nos.2 and 4, to the effect that the defendants were owners of property bearing CTS No.580/2 and had proved the oral gift, were set

aside with the observations that such findings were entirely unwarranted; and the parties were, in fact, contesting a comprehensive suit for title

(O.S.No.385 of 2005) pertaining to the property bearing CTS No.580/2 which was, at the relevant time, pending before this Court in regular second

appeal, after the decision of R.A.

No.52 of 2012. The material findings of the Appellate Court, as occurring in paragraphs 22 to 24 of the judgment dated 19.04.2017, deserve to be

taken note of as under:

“22. Admittedly plaintiffs are not residing in either suit property bearing CTS. No.580/1B/5 or the adjoining house properties bearing

CTS.No.580/1B/1 to CTS.No.580/1B/4. The ownership and possession of the plaintiffs over the suit property bearing CTS.No.580/1B/5 is not in

dispute. Plaintiffs have not examined any independent witnesses to establish the alleged illegal interference and obstruction by the defendants.

According to the plaintiffs the defendants are causing illegal interference to the tenants who are residing in CTS.No.580/1B/1 to CTS.No.580/1B/4

while using the borewell or well, latrine, staircase, shed pump set etc. Non examination of any independent witness particularly any one of the tenant

of the plaintiffs leads to draw an adverse inference. Only on the basis of the oral evidence of PW-1 it cannot be held that the interference if any by

the defendants was either illegal or with an intention to harass the tenants of the plaintiffs.

Even according to the case of the plaintiffs in the suit ‘AB’ wall since beginning there were two doors and one window. No doubt that,

Ex.P.11 certified copy of photograph shows the closed doors and windows existing in the suit ‘AB’ wall. But, in the subsequent photographs it

can be seen that the said doors and window are opened. Since, the plaintiffs have admitted the possession of the defendants over CTS. No.580/2,

therefore, they need said window and two doors in the said wall for ventilation i.e. air and light. Even the photographs produced by the plaintiffs shows

that there is a projection of slap for about 2-3 feet over the suit ‘AB’ wall towards the suit open space. If the said ‘AB’ wall was

common wall or exclusive wall of the plaintiffs, then there was no need of leaving the said projection over the said ‘AB’ wall. The said

projection existing on suit ‘AB’ wall further indicates that the said window and doors were opened for ingress and egress to the back portion

and for air and light.

Mere use and enjoyment of the said doors and window by the defendants will not be treated as an illegal interference in use and enjoyment of the

suit property by the plaintiffs or by their tenants. Admittedly the dispute with regard to the ownership of CTS. No.580/2 is before the Hon’ble

High Court. It is needless to say that if the plaintiffs succeeds in the said appeal then they are entitled to take the possession of entire CTS.No.580/2.

If the plaintiffs fails to establish their ownership and Hon’ble High Court confirms the judgment and decree passed in R.A.No.60/2012, then the

defendants requires the said doors and window for ventilation or air and light. Under these facts and circumstances of this case, in my opinion, at the

first instance, plaintiffs have failed to establish the illegal interference and obstruction by the defendants. And secondly, in my opinion, plaintiffs have

failed to establish that defendants have no right to use the said doors and window. Under these facts and circumstances, I have answered point under

consideration in the negative.â€​

(underlining supplied for emphasis)

Of course, the Appellate Court found unjustified the finding of the Trial Court in relation to issue Nos.2 and 4 and annulled the same while leaving

such questions open for consideration in the other matter pending in second appeal. However, in view of the categorical finding aforesaid, the very

substratum of the case of the plaintiffs is knocked to the ground; and the very claim sought to be made by the plaintiffs in relation to the alleged acts

and actions of the defendants-petitioners stands rejected.

As observed by the Hon'ble Supreme Court in Kanwar Singh Saini (supra), the application under Order XXXIX Rule 2-A CPC lies only where

disobedience/breach of an injunction granted or order complained of was the one granted by the Court under Order XXXIX Rules 1 and 2 CPC;

which is naturally to enure during the pendency of the suit; and once a suit is decreed, the interim order merges into the final order. In the case of

Kirpal Singh (supra), the Punjab and Haryana High Court, with reference to its earlier decision, held that neither initiation nor continuation of the

proceedings under Order XXXIX Rule 2-A CPC would be competent after the injunction has been vacated by virtue of the dismissal of the suit.

In the present case, as noticed, the suit has not only been dismissed, but in fact a specific finding is returned against the plaintiff as regards

‘AB’ wall and the openings thereof. In the given circumstances, there appears no reason that the petitioners be ordered to be penalised by way

of detention in civil prison for the alleged disobedience of the ex parte temporary injunction that is no longer subsisting and that, in fact, does not even

stand in conformity with the final findings in the main suit.

Apart from the above and even on the merits of case, this Court is clearly of the view that in the impugned orders dated 3. 07.2008 and

04.02.2015, the subordinate Courts have proceeded on entirely irrelevant considerations and have failed to examine the real questions in controversy.

After a lengthy discussion about the questions relating to the postal endorsement as ‘not claimed,’ and after holding that the service could be

taken as sufficient on such endorsement, the subordinate Courts have apparently assumed that there had been disobedience by the petitioners. The

finding as regards disobedience by the petitioners is not based on the requisite analysis and assessment of the evidence on record and the orders

impugned, as regards the question of disobedience of temporary injunction, had only been assumptive orders without cogent and convincing reasons.

The subordinate Courts do not appear justified even in observing that the service of notices on the defendants-petitioners be taken as sufficient only

for the endorsement of 'not claimed' without cogent evidence that the intimation for claiming such postal article was indeed given to them. Moreover,

merely on the basis of certain photographs whose dates had been in doubt, a conclusion regarding disobedience of injunction could not have been

reached.

In view of the above, even on the merits, this Court is clearly of the view that no case for detention of the petitioners in civil prison was made out

and the application under Order XXXIX Rule 2-A CPC was required to be dismissed.

The cumulative effect of the discussion foregoing is that the impugned orders cannot be sustained and the application filed by the plaintiffs-

respondents under Order XXXIX Rule 2-A CPC deserves to be dismissed.

Accordingly and in view of the above, these writ petitions are allowed; the impugned orders dated 03.07.2008 and

02.2015 are set aside; and the application-I.A. No.II in O.S. No.54 of 2006 in the Court of the III Additional Civil Judge (Junior Division),

Vijayapura, stands dismissed. I.A.No.1 of 2018 in these petitions also stands disposed of.

No costs.