Mishrilal Diwan and another vs Indubai and another

S.K. Pande, J.

This revision u/s 115, CPC is directed against the order dated 7-5-2003, passed by I ADJ, Hoshangabad in M.A. No. 2/02, affirming the order dated 6-11-2001, passed by II Civil Judge Class I, Hoshangabad in MJC No. 2/96.

Plaintiff/non-applicant Indubai instituted C.S. No. 82-A/98 (old No. 59-A/95) in Court of I Civil Judge, Class II, Hoshangabad wherein, on an application under Order 39, Rules 1, 2, Civil Procedure Code, vide order dated 9-10-1995 defendant/applicants were restrained from removing the crop from the suit land. On 22-1-1996, plaintiff/non-applicant filed an application under Order 39, Rule 2A, CPC (Annexure P-5) complaining that on 25-10-1995, defendant/applicants in spite of the ad interim injunction dated 9-10-1995 has removed the crop from the suit land. The defendant/applicants resisted the application stating inter alia that they had no knowledge of ad interim injunction dated 9-10-1995 passed ex parte on the application of plaintiff/non-applicant. The crop was sown by them, therefore, on 25-10-1995, they reaped it. Only on 3-11-1995, they came to know about the filing of C.S. No. 82-A/98 by their sister plaintiff/non-applicant Smt. Indubai.

The Civil Judge vide order dated 6-11-2001 held that the defendant/applicants removed the crop from the land in spite of ad interim injunction dated 9-10-1995. Accordingly ordered their detention in Civil Prison for a period of one month. Being aggrieved, the defendant/applicants filed M.A. No. 2/02 before the I, ADJ, Hoshangabad. The Court below affirming the order dated 6-11-2001, passed by II Civil Judge Class I, Hoshangabad in MJC No. 2/96, dismissed the appeal.

On an application under Order 39, Rules 1, 2, Civil Procedure Code, ex parte order dated 9-10-1995 (Exhibit P-1C) was passed by the Civil Judge directing the defendant/applicants not to remove the crop from the suit land Khasra No. 125/4 area 15 acres, village Mangwari. There is nothing in the order dated 9-10-1995 that the Court had sent the copy of application for injunction together with an affidavit, copy of plaint documents to the defendant/applicants as required under Order 39, Rule 3(a) of the Civil Procedure Code. Further there is nothing on record to show that the order of ad interim injunction dated 9-10-1995 has been served upon the defendant/applicants.

P.W.-1 Ravi Shankar Tiwari has stated that on 25-10-1995, he was informed by P.W.-2 Ashok Yadav that defendant/applicants are reaping the crop, on this information, he had been to the field and by showing certified copy of injunction asked the applicants not to reap the crop further. P.W.-1 Ravi Shankar Tiwari further stated that the defendant/applicants taken away the crop. This statement P.W.-1 Ravi Shankar Tiwari is supported by P.W.-2 Ashok Yadav, however, P.W.-3 Kanchedilal simply states that defendant/applicants were reaping the crop in spite of resistance by P.W.-1 Ravi Shankar Tiwari. There is nothing in the statement of P.W.-3 Kanchedilal that order of injunction was shown by P.W.-1 Ravi Shankar Tiwari to defendant/applicants. D.W.-1 Mishrilal has stated that the summons of the suit was received by him on 3-11-1995. The copy of any order said to have been passed by the Court was not enclosed therewith. D.W.-2 Omprakash has stated that for the last 3-4 years, he was cultivating the suit land on behalf of defendant/applicants. Smt. Indubai plaintiff/non-applicant never cultivated the suit land. Statement of D.W.-1 Mishrilal and D.W.-2 Omprakash are corroborated by the document (Exhibit N-5) Panchanama dated 27-6-1996. As per this, suit land Khasra No. 125/4 is one field and the crop was sown by defendant/applicant Mishrilal and Vinod Kumar.

From the aforesaid evidence on record in MJC No. 2/96, it is clear that the Courts below wrongly held that defendant/applicants had any knowledge of order of ad interim injunction dated 9-10-1995. P.W.-1 Ravi Shankar Tiwari is highly interested witness being the husband of plaintiff/non-applicant Smt. Indubai. His statement alone should not have been accepted that on 25-10-1995, he had shown the certified copy of the order dated 9-10-1995 to the defendant/applicants. In the absence of strict proof of service-knowledge of ex parte order dated 9-10-1995, passed by the Civil Judge, the defendant/applicants ought not to have been held guilty for its breach under Order 39, Rule 2A, Civil Procedure Code. The Courts below therefore erred in directing their detention in Civil Prison for a period of one month.

Consequently, revision succeeds. Order impugned passed by Courts below are set aside. Instead application under Order 39, Rule 2A stands dismissed. No order as to costs.