Kedarnath Gupta vs Ram Bali Gupta and Another

Dhirendra Mishra, J.—The applicant/Defendant has preferred this civil revision against the order dated 11-02-1998 passed in M.A. No. 40/96 by the learned II Additional District Judge. Ambikapur and by which the appeal preferred by the non-applicants/Plaintiffs against the order dated 15-09-1995 passed in M.J.C. (Civil) No. 07/93 by the learned III Civil Judge Class-II, Ambikapur has been allowed and the applicant/Defendant has been directed to be detained in civil prison for a period of two months for willful violation of the order of temporary injunction in favour of the non-applicants/Plaintiffs and against the applicant/Defendant by the trial Court. (Parties hereinafter shall be referred to as per their description before the trial Court.)

Learned Counsel for the applicant has impugned the above order on the following grounds;

(a) That the status of the applicant in proceedings under Order 39 Rule 2A of the CPC is that of an informant who has informed the Court in respect of disobedience of the order of injunction. Once intimation of such disobedience is given and the original Court after considering the allegation rejects the application by recording a finding that no case of breach of injunction is made out, the Appellant has no vested right to prefer an appeal against such order as imposition of penalty for breach of injunction is a matter between the Court and the party against whom the allegation of breach of injunction is made.

(b) That the scope of interference by the appellate Court exercising jurisdiction under Order 43 Rule 1(r) of the CPC is very limited and it is not open to reverse the finding by which the contemnor has been discharged from the allegation of breach of injunction by the trial Court after due appreciation of evidence and it is not open to the appellate Court to re-appreciate the evidence and substitute the findings by his own.

Brief facts necessary for adjudication of this civil revision are that the suit for declaration and permanent injunction was filed by the Plaintiffs. The Plaintiffs also moved an application for temporary injunction for restraining the Defendant from undertaking any construction over the suit land which was allowed vide order dated 31-10-1988. However, the Defendant commenced the construction of wall over the existing wall, whereupon another application for temporary injunction was moved by the Plaintiff in the year 1992 and learned trial Court passed an order dated 28-09-1992 restraining the Defendant from constructing any wall on or over the wall situated over Khasra No. 1390 until finalization of the suit. The Plaintiffs again moved an application dated 21-07-1993 with the allegation that the Defendant is undertaking construction in breach of order of temporary injunction passed against him. After service of notice the Defendant denied that he was undertaking any construction over Khasra No. 1390 as alleged. It was further submitted that the construction is being carried out over Khasra No. 1388, are 0.07 acres belonging to his wife namely Chandramani Devi and the construction has been completed before passing of order of temporary injunction dated 28-09-1992. The Plaintiff-Krishna Kumar Gupta in support of its case, examined K.R. Singh (P.W. 1), Ram Bali Gupta (P.W. 2) and himself. He also filed the map of the disputed land Ex. P/1, injunction order dated 28-091992 Ex. P/2, the copy of the summons issued by the Court Ex. P/3 and P/4, the certified copies of the application dated 20-07-1992 and 21-09-1992 Ex. P/5 and P/6, the application addressed to the police Ex. P/7 the order-sheets of the civil suit Ex. P/8 and certified copy of the Gujarat State Settlement Ex. P/9 whereas the applicant/Defendant examined himself and filed the map of Ex. D/1 and certified copy of the map as Ex. D/2 as documentary evidence.

Learned Civil Judge rejected the application by recording a finding that it is not proved that the Defendant has constructed any wall or roof in violation of the order of temporary injunction dated 28-09-1992. However, from perusal of the document of Ex. P/1 it is not clear as to which competent authority has prepared the same or the Plaintiffs have themselves made it and in the above map Khasra No. 1390 is not mentioned, therefore no inference can be drawn that the part shown in black in the said map pertains to Khasra No. 1390 or not. It has also been observed that the Plaintiff No. 1 (P.W. 2) Ram Bali Gupta has admitted in his cross-examination that no demarcation was done to ascertain that the disputed wall is constructed over Khasra No. 1390 and even the commissioner who conducted local enquiry did not conduct any investigation to ascertain as to on which Khasra No. the disputed wall exists. Even from perusal of the map attached with the application of Ex. P/5 the Plaintiffs have shown the disputed wall on the eastern part of Khasra No. 1390 and temporary injunction with respect to the above wall has been sought whereas from perusal of the map filed in the suit No. 16-A/88 this wall has not been marked by black colour and therefore, it is not proved that the part shown by black colour in the map of the Ex. P/1 is part of Khasra No. 1390 and the oral evidence of P.W. 1 to the effect that after passing of the order of temporary injunction the Defendant started construction from 28-06-1993, has been disbelieved. The report of the commissioner has been disbelieved on the ground that though the commissioner has given the report that the construction present over the wall is new construction over the old construction, however, it has not been reported as to how old new construction was and therefore, it has been held that it is not proved that any construction was made over the old wall after 28-09-1992.

However, the learned II Additional District Judge, Ambikapur by the impugned order allowed the appeal preferred by the Plaintiffs by recording a finding that the local investigation, conducted by the commissioner appointed by the Court in the presence of both the parties, cannot be rejected solely on the ground that he did not make any enquiry regarding Khasra No. over which the wall in question is situated as it was not possible for the commissioner to conduct demarcation to ascertain as to on which Khasra No. the wall is situate and therefore, the Court below committed a mistake by rejecting the commissioner''s report. Thus from the report of the commissioner and from the evidence available on record it is established that the construction was undertaken in breach of order of temporary injunction and accordingly, the Defendant was held guilty and sentenced to undergo civil imprisonment for two months by the impugned order.

Learned Counsel for the applicant/Defendant submits that the Court below has exceeded its jurisdiction by re-appreciating the evidence available on record and by giving undue weightage to the report of the commissioner solely on the ground that the report was prepared in the presence of both the parties, ignoring the cogent reasoning given by the trial Court wherein the application has been rejected after considering the pleadings, documents available on record and the material evidence adduced by the respective parties with a finding that the Plaintiffs had failed to establish that the wall in question was in fact constructed over the eastern part of Khasra No. 1390 and the construction was undertaken after passing of the order of temporary injunction.

Relying upon the judgment in the matter of Smt. Ganga Bai Vs. Vijay Kumar and Others, it is argued by learned Counsel for the applicant/Defendant that the appeal preferred by the Plaintiffs was incompetent and not maintainable.

However, the above citation is of no help to the applicant/Defendant as Order 43 Rule 1(r) of the CPC provides for appeals from orders passed under Order 39 Rule 2A of the CPC by the trial Court and in this respect the judgment in the matter of Inda Bewa and Another Vs. Bharmananda Choudhury, is relevant wherein it is held that the order passed under Order 39 Rule 2A of the CPC is appealable whether it is one inflicting punishment or refusing to take action.

Once it is held that appeal lies under Order 43 Rule 1(r) of the CPC against the rejection of application under Order 39 Rule 2A of the Code of Civil Procedure, then the further argument of the Defendant that the matter of contempt is a matter between the Court and the contemner and the status of the applicant is only that of an informant and where his application is rejected, he cannot question the same by filing appeal, has no substance.

The another question raised by learned Counsel for the applicant/Defendant is what is the scope of interference by the appellate Court while exercising appellate jurisdiction under Order 43 Rule 1(r) of the CPC ? It is argued that the learned trial Court after considering the documents filed by the respective parties and after analyzing the oral testimony, has arrived at the conclusion that the non-applicants/Plaintiffs have failed to establish that the Defendant had undertaken any construction over the wall in question in breach of order of temporary injunction and further held that the finding of the commissioner that portion of the wall is a new construction does not mention the period when the same was constructed and in the absence of the report that the new construction in question was made after passing of the order of temporary injunction, the applicant/Defendant cannot be held guilty of breach of order of temporary injunction.

On the other hand, learned Counsel for the non-applicants/Plaintiffs submits that initially the Defendants were restrained from undertaking any construction over Khasra Nos. 1389 and 1390. However, during subsistence of the order of temporary injunction, the Defendant started construction of wall over the existing wall as shown in the map whereupon another application for temporary injunction was moved on 21-07-1992. However, as the Defendant continued construction, another application for temporary injunction was filed on 16-09-1992 and after hearing the parties, the learned trial Court allowed the above applications and restrained the Defendant from undertaking any construction over Khasra No. 1390. Initially the Defendant stopped construction, however, he commenced construction subsequent to 28-06-1992 whereupon application for breach of injunction was filed on 21-07-1992 but the notice of the proceedings could not be served as the Defendant and his counsel avoided service and in the meanwhile the Defendant continued construction. After service of notice, the trial Court issued commission for local enquiry with the consent of the parties and the commissioner inspected the spot in the presence of the parties and their advocates on 30-03-1994. The commissioner submitted its report on 08-04-1994. The Defendant preferred an objection against the report of the commissioner on 14-06-1994 on the ground of the identity of the spot. The objection so raised was dismissed by the trial Court on 22-07-1994. Against the order of dismissal of the above objection the Defendant did not prefer any appeal or revision and as such the report of the commissioner was final and binding upon the parties and the same is admissible in evidence. Therefore, the learned Additional District Judge has rightly held the Defendant guilty of breach of injunction by setting aside the order of the trial Court. In the aforesaid circumstances, no interference is called for in the impugned order.

He places his reliance on the judgment in the matter of Lekh Raj v. Muni Lal and Ors. AIR 2001 SCW 662 and submits that report of the local commissioner cannot be rejected on the ground that it does not indicate that the construction in question was existing over the disputed wall.

Further relying upon the judgment in the matter of B.L. Sreedhar and Ors. v. K.M. Munireddy (dead) and Ors. AIR 2002 SCW 5221 it is submitted that where the local commissioner appointed by the Court with the consent of the parties to ascertain the fact, gives his report after inspecting the spot in the presence of the parties and the objection preferred by one of the parties is rejected by the concerned Court, it attains finality. In that case, the parties were estopped from challenging the report of the commissioner on the ground that the identity of the spot has not been mentioned in the commissioner''s report.

I have heard learned Counsel for the respective parties.

It is not in dispute that there was an order of temporary injunction against the Defendant and during subsistence of the order of temporary injunction, the Plaintiffs filed yet another application for temporary injunction alleging that the Defendant is undertaking construction in violation of the order of temporary injunction and ultimately the subsequent applications are allowed and the Plaintiffs filed an application alleging breach of injunction against the Defendant and while conducting enquiry on the application for breach of temporary injunction order, the trial Court ordered local spot inspection with the consent of the parties. The commissioner appointed by the Court submitted his report and in the said report it is mentioned that new wall has been constructed over the old wall and after construction of the new wall a slab has been cast.

The learned Additional District Judge relying upon the commissioner''s report has held the applicant/Defendant guilty of breach of order of temporary injunction and imposed a penalty of two months civil imprisonment by the impugned order thus, this Court is of the opinion that the findings of the learned Additional District Judge, that the Defendant is guilty of breach of temporary injunction is in conformity with the material available on record.

Now the question is whether the Court below was justified in imposing punishment of civil imprisonment for two months for the alleged breach of injunction ? Taking into consideration that the civil suit between the parties, who are real brothers, is pending since 07-10-1988 and further considering the age of the Defendant, it would not be necessary to commit the Defendant to civil imprisonment and ends of justice will be served if the trial Court is directed to get the construction undertaken after passing of the order of temporary injunction removed and attach the property in question of the applicant.

Ordered accordingly.

Appeal rejected and Order modified.