Rameshchandra Mohanlal vs Chandaben

Ravi R.Tripathi, J.—The appellant-original plaintiff is before thisCourt being aggrieved of an order dated 08.04.2003 inMisc. Application (restoration) No.868 of 2000. Thoughprima facie, the order is in favour of the plaintiff asit grants the relief but then in part. This is a casewherein a stricter view is warranted, more particularlyin light of the fact that despite order dated 08.04.2003whereby the learned Judge of the City Civil Court,Ahmedabad was pleased to sentence opponents no.5/2,Vishnukumar Prabhudas Gupta; 5/3, Rohitkumar PrabhudasGupta; 5/4, Rajkumar Prabhudas Gupta; 5/5, DharmendraPrabhudas Gupta; and 5/6, Manoj Prabhudas Gupta withcivil imprisonment for three months for their wilfuldisobedience and breach of injunction order.

It is stated at the Bar that against this orderopponents had approached this Court by filing Appeal FromOrder No.162 of 2003 which was dismissed on 10.07.2003.The opponents have undergone the sentence of civilimprisonment, that is the precise reason for which astricter view is required to be taken in this matter.The learned Judge in his elaborate and well consideredjudgement has recorded in no uncertain terms that theopponents have taken a very adamant stand. It isrecorded in para 9 of the order as under:

"The opponents no.5/1 to 5/3 and 5/5 and 5/6 have filed their affidavit at Exh.72 and in this affidavit they have stated on oath that the entire litigation is lookafter (sic.) and conducted and handled by our brother Rajendra Prabhudas Gupta and they had not taken active part in the construction. .. .."

2.1 Thus, it is clear from the aforesaid statementthat even according to the deponents construction is putup, but then they have not taken active part in theconstruction and hence they are not responsible for thesame. It is their brother, Rajendra Prabhudas Gupta, whowas looking after and conducting and handling the entirelitigation and therefore, it is he who is responsible for the construction.

2.2 It is further stated in the affidavit (Exhibit72) that they have made construction in the property witha view that the property may not be trespassed or takenpossession of by anti social elements.

Thus, the fact of putting up construction is admitted.At this juncture, to hear Mr.Gupta, the learned advocateappearing for the opponents herein that, ''no constructionput up and that this can be ascertained by this Court bycomparing the two Panchnamas drawn by the Commissionerappointed by the trial court'' is not worth entertaining.

2.3 It is also stated in the affidavit (Exhibit 72)that,

".. .. They sincerely apologise to the Court for having acquiesced in further construction of the building after the Honourable Supreme Court passed the order of stopping construction of the property in question."

From the aforesaid statement contained in the affidavit(Exhibit 72) no doubt, remains in the mind of this Courtthat the opponents have acted in an irresponsible manner,high-handedly, showing utter disregard for the law andthe Court.They preferred to undergo the civilimprisonment than to remove construction put up by themin breach of order of injunction.

Mr.Gupta, the learned advocate appearing for theopponents raised all possible, technical objections tothe maintainability of this Appeal From Order besides thechallenge to the legality and validity of the orderpassed by the learned Judge. In view of the fact thatthe Appeal From Order which was filed by these veryopponents is dismissed by this Court on 10.07.2003, whatwas expected of from a law abiding citizen was to submitto the Court, more so when two courts have concurrentlyheld that violating the order of the Court, constructionis put up. They should have asked for time to remove thesame. The opponents preferred to undergo the civilimprisonment--- a lighter option in their view.

Normally, civil imprisonment is awarded only insuch cases where the other alternative like the one whichis available in this case, of removing of objectionableconstruction is not available. In the present case, fromthe fact of opponents preferring to undergo civilimprisonment than to removing the construction shows the''mental set up'' of the opponents. Then, in such cases inthe considered opinion of this Court removal of theobjectionable construction is must, to restore therespect to the orders of the Court. Not ordering removalof the objectionable construction will send wrong signalsto the society at large and is likely to add a tendencyof disobeying the orders of the Court and to prefer toundergo civil imprisonment for which maximum period is ofthree months. Putting up a construction in breach of anorder of injunction is a continuous wrong and remedy forsuch wrong is removal of the construction. The defaultercannot be allowed to enjoy such construction. If this isallowed then it may lead to a very dangerous situation.To avoid that the Court is required to order removal ofobjectionable construction. This Court, after givinganxious though to the matter has come to the conclusionthat ordering of removal of construction is warranted inthe facts and circumstances of the case to restore therespect to the orders of the Court.

Therefore, this Appeal From Order is allowed andthe prayer in terms of para 4(B) is granted. The trialcourt shall ensure the compliance of this order andreport the same to this Court within eight weeks from thereceipt of the writ of this Court.

Mr.Gupta, the learned advocate appearing for theopponents submitted that this Court may direct thelearned Judge to determine the construction which isalleged to have been put up by committing breach ofinjunction order. This request cannot be entertained for the simple reason that the opponents themselves haveadmitted in affidavit at Exhibit 72, referred to in para9 of the order.

In view of the order passed in the Appeal FromOrder, no orders on the Civil Application. The CivilApplication is disposed of accordingly.