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Judgment
M. Venugopal, J.—The Civil Revision Petitioners/Petitioners/Plaintiffs 1, 2, 4 and 5 have filed the present Civil Revision Petition before this
Court as against the order dated 23.06.2004 in E.P. No. 136 of 2002 in O.S. No. 501 of 1997 passed by the learned District Munsif, Nagercoil.
The trial Court while passing the orders in E.P. No. 136 of 2002 in O.S. No. 501 of 1997 on 23.06.2004, has among other things observed
that ''there is no document to categorically establish the prevailing physical features of the suit property at the time of passing of the decree and also
that the independent witnesses have not been examined to prove that the constructions have been made after the decree and furthermore, the fact
that out of the two Respondents, one has not violated the decree, has been accepted and therefore, it is to be construed that the Petitioners have
not established beyond reasonable doubt that the Respondents therein have violated the decree and resultantly, dismissed the application without
costs.
Being dissatisfied wit the order dated 23.06.2004 in E.P. No. 136 of 2002 in O.S. No. 501 of 1997 passed by the learned District Munsif,
Nagercoil, the revision Petitioners have projected the Civil Revision Petition before this Court as aggrieved persons.
The learned Counsel for the Petitioners/Plaintiffs submits that the order of the Executing Court in E.P. No. 136 of 2002 in O.S. No. 501 of
1997 dated 23.06.2004, is an illegal and unjust one, besides being contrary to law.
It is the contention of the learned Counsel for the Petitioners/Plaintiffs that the Executing Court ought to have given a finding that the
Respondents 1 and 2 (Respondents in E.P), have committed an act of contempt of Court and in short, the Executing Court has failed to note down
the admissions made by the Respondents and therefore, prays for allowing the Civil Revision Petition in the interest of justice.
Per contra, the learned Counsel for the Respondents 1 and 2 supporting the order of the Executing Court in dismissing E.P. No. 136 of 2002 in
O.S. No. 501 of 1997 dated 23.06.2004, submits that the revision Petitioners/ Petitioners/Plaintiffs have not established to the satisfaction of the
Executing Court that the Respondents have committed an act of contempt of Court.
In E.P. No. 136 of 2002 in O.S. No. 501 of 1997, the Petitioners have stated in column No. 9 under the caption ''Decree'' that in O.S. No.
501 of 1997 on 13.03.2002, the trial Court has granted the relief of permanent injunction restraining the Defendants and the agents not to change
the physical features of the suit property by constructing any type of constructions unlawfully. However, the trial Court has dismissed the relief as
regards the recovery of the possession of the property. Although the mortgage amount has been paid as per Ex.A.1, document. The prayer in the
E.P. No. 136 of 2002 in O.S. No. 501 of 1997 is for an issuance of an order by the Executing Court to demolish the new constructions made in
the schedule property in violation of the decree and to restore the schedule property to its original position and hand over the excess area to the
Plaintiffs. Further, an order is also prayed to detain the Respondents in civil prison for a term not exceeding six months, etc.
Before the Executing Court, the Respondents 1 and 2 in their counter affidavit have inter alia averred that the contempt of Court petition is not
maintainable in law and that the second Respondent has not given any undertaking in the Vadaseri Police Station and if at all any signature or
undertaking has been obtained by the Vadaseri Police Station, the same is against the Evidence Act and it is void.
Also, it is false to state that the Respondents have encroached 10 cents of Plaintiffs'' adjacent lands and if at all, any encroachment is made
outside the mortgage deed of 16 cents, the remedy open to the Civil Revision Petitioners/Petitioners/Plaintiffs is to file a separate suit and not to file
a contempt application/petition.
Added further, it is the plea of the Respondents that there is no question of demolishing of the Respondents/ Defendants'' constructions which
are prior to the suit.
It is the evidence of P.W.1 (second revision Petitioner) that the first revision Petitioner is a Trust and that the Petitioners 3 and 4 are the
trustees of the first Petitioner Trust and in the main suit in O.S. No. 501 of 1997, a decree has been passed that no construction shall be raised in
the suit property and in violation of the decree, the Respondent has constructed a compound wall on three sides at 11 feet height and also has
constructed a latrine and bath room and moreover, in the northern wall, newly has constructed a gate and he has started his construction on
27.07.2002. Further, he has given a police complaint and at the level of basement, the police warned the Respondent to stop the construction, but
violating the same, the Respondent has constructed the construction and has commenced the construction on 03.06.2002 and therefore, again they
have given a complaint before the police for which a receipt has been issued on 08.06.2002 and further, additionally, the Respondent has
encroached more than 1 1/2 cents and has constructed the construction and that the Advocate Commissioner has been appointed and has given
his report and plan which are Exs.C.1 and C.2 and the photographs (14 Nos. ) are marked as Ex.C.3.
Continuing further, it is the evidence of P.W.1 (second revision Petitioner) that it is not true to state that the constructions have been in
existence already. It is the evidence of P.W.1 (in cross-examination) that it is correct to state that he has not filed any photographs to show the
status of the physical features of the property before filing of the suit and also that has not been mentioned in the Commissioner''s report.
Moreover, it is the evidence of P.W.1 (in cross-examination) that no one has witnessed the building of the construction and he cannot say that how
many persons have violated the Court order and that the Respondents have constructed the construction by employing the persons and at the time
of construction, Baby and Balammal were not there and that he has not added Baby and Balammal for violating the Court order and even in the
complaint, he has not mentioned the name of Baby.
It is the evidence of R.W.1 (second Respondent) that the first Respondent is his wife and that the mortgage has not been given to him as per
the boundary mentioned in the decree and after the decree, he has not changed the physical features of the suit property and it is not true to state
that he has encroached the additional portion and at the time of the visit of the Commissioner, no construction has been made and at the time when
the construction has been made by them, the Commissioner appointed by the Court has not taken any action.
R.W.1, (in cross-examination) has specifically stated that in the year 1997, after filing of the suit, since he made an Endeavour to put up
construction, prohibiting the same, a permanent injunction has been obtained and the same remained till the disposal of the suit.
Added further, it is the evidence of R.W.1 that he does not know at what point of time, Eswaradoss has constructed the wall on the northern
side and further he does not know when he died and for the second time, the police have come and taken him and in the police station, he has
given in writing to the police station.
In Ex.C.1, the Commissioner''s report, it is under the caption ''Point No. 1'', the Commissioner has stated as follows:
I have measured the plaint schedule property with the assistance of surveyor and prepared a plan which is enclosed with this report. New
compound wall was constructed with hollow bricks on the northern side, eastern side and southern side of the plaint schedule property. On the
northern side and south western corner, new gates were affixed. On the south eastern corner of the plaint schedule property a toilet was
constructed with burnt bricks. A small room (3'' 6"" X 3'' 6"") was constructed near the newly constructed toilet.
There is a room bearing door No. 8/43B situated on the northern side of the plaint schedule property. A cement flooring was recently made in
front of the above said room. The age of the new construction is about 6 months. The new constructions were marked in the plan with red ink.
Also, under the head ''Point No. 2'', the Commissioner has noted the following:
Along with the above said new construction there were two rooms with thatched roof situated on the northern side of the plaint schedule property.
Door Number was given to one room as 8/43B and Jesus Statue was installed inside the room. On the western side there is a thatched shed
situated. Another thatched shed is situated in the middle portion of the plaint schedule property. There is a well on the southern side of the plaint
schedule property. There are 13 big coconut trees and 6 small coconut trees and one neem tree and mango tree in the plaint schedule property.
The second Respondent/second Defendant in his evidence (in chief examination) has categorically deposed that at the time of putting up
construction by them, no action has been taken before the Court as to the appointment of an Advocate Commissioner and the wall shown in the
photograph has not been cemented and it is like that ever since his uncle''s period. Also, it is the evidence of R.W.1 (second Defendant) in his
cross-examination that it is correct to state that a temporary injunction has been granted when he made an Endeavour to put up the construction
and the said temporary injunction has remained through out the disposal of the suit.
At this juncture, it is relevant for this Court to make a significant mention that in Ex.C.1, the Commissioner''s report, it is clearly mentioned that
''... New compound wall was constructed with hollow bricks on the northern side, eastern side and southern side of the plaint schedule property.
On the northern side and south western corner, new gates were affixed. On the south eastern corner of the plaint schedule property a toilet was
constructed with burnt bricks. A small room (3'' 6"" X 3'' 6"") was constructed near the newly constructed toilet.'' Also, in the said report, it is
mentioned that ''... A cement flooring was recently made in front of the above said room. The age of the new construction is about 6 months. The
new constructions were marked in the plan with red ink.''
The learned Counsel for the Respondents 1 and 2 contends that the contempt jurisdiction must be sparingly exercised with caution and the
burden of proof is on the individual who alleges contempt and the standard of proof required is that of a criminal proceeding and to lend support to
that contention, places reliance on the decision of the Honorable Supreme Court in Mrityunjoy Das and Another Vs. Sayed Hasibur Rahaman and
Others, .
In E.P. No. 136 of 2002 in O.S. No. 501 of 1997, the relief is sought for against the Respondents namely the Defendants 2 and 3. Ex.A.4,
police complaint given by the second Petitioner as against the second Respondent/third Defendant, but Ex.A.4 does not refer to the first
Respondent/first Defendant namely Baby.
This Court worth recalls the decision in Vijay Kumar Pandey Union of India reported in AIR 2008 NOC 1943 (All), wherein it is observed
that ''the person aggrieved by disobedience of decree for permanent prohibitory injunction, can take recourse of Order XXI, Rule 32 of the Code
of Civil Procedure.''
Also, in the decision in Legal Representatives of Maga Ram and Another Vs. Kana Ram and Others, , it is held that ''for execution of decree
of mandatory and prohibitory injunction, judgment debtor need not be given any opportunity of hearing prior to removal.''
Moreover, a report of the Commissioner is a part of record. It cannot be overlooked or rejected merely because of the fact that the
Commissioner has not been examined. Also, the report of the Commissioner can only be an aid to a Court of law in arriving at its findings. The
Commissioner''s report can be proved on evidence. Whether the Commissioner is examined or not, his report forms part and parcel of the record
and a Court of law is bound to consider the same. The parties are bound by the report of a Commissioner which is not influenced by extraneous
considerations.
At this stage, on going through the order of the Executing Court in E.P. No. 136 of 2002 in O.S. No. 501 of 1997, it is clear that the
Executing Court has observed that ''at the time of decree being passed, there is no proof to show as to the existence of the physical features of the
suit property and moreover, no independent witnesses have been examined to show that the constructions have been made after passing of the
decree and also that out of the two Respondents, one has not violated the decree, etc. and therefore, the averment that the Respondents have
violated the decree, has not been established beyond reasonable doubt, etc.''
Ex.A.4, the complaint against the second Respondent/third Defendant, is dated 03.11.2002. However, in the main suit in O.S. No. 501 of
1997, the trial Court has granted the relief of decree of permanent injunction on 13.03.2002. Since the Advocate Commissioner, Thiru. N.
Kanakaraj, has given his report in Point Nos. 1 and 2 about the new compound wall, affixing of two gates, construction of new toilets, putting up
of cement recent flooring in a room bearing door No. 8/43B situated on the northern side of the plaint schedule property, this Court is of the
considered view that the Commissioner''s report will have to be proved in the manner known to law by examining the Advocate Commissioner and
also by providing an opportunity to the other side to cross-examine the Advocate Commissioner (because of the simple fact that the Advocate
Commissioner has not been examined before the Executing Court). Also, no independent witnesses have been examined to prove the purported
constructions made by the Respondents before the Executing Court.
Therefore, this Court opines that an opportunity will have to be given to the revision Petitioners/ Petitioners/Plaintiffs 1, 2, 4 and 5 to examine
the independent witnesses other than P.W.1 to prove the case of the Petitioners/Plaintiffs in the manner known to law.
Obviously, the Executing Court has not taken into account the evidence of R.W.1 (third Defendant) to the effect that at the time when the
construction has been made, no attempt has been made before the Court to appoint an Advocate Commissioner, etc. In short, the Executing Court
has not discussed about the pros and cons of the Commissioner''s report in its order in E.P. No. 136 of 2002.
Suffice it for this Court to point out that the Executing Court has not appreciated the evidence of R.W.1 in E.P. No. 136 of 2002 in O.S. No.
501 of 1997 in a proper perspective coupled with the report of the Advocate Commissioner.
As such, this Court is of the considered opinion that the entire gamut of the subject matter requires fresh determination in threadbare by the
Executing Court. Therefore, this Court, to prevent an aberration of justice and to promote the substantial cause of justice, allows this Civil Revision
Petition by setting aside the order of the Executing Court in E.P. No. 136 of 2002 in O.S. No. 501 of 1997 without going into the merits of the
matter and remands the entire gamut of the subject matter between the parties to the Executing Court for fresh determination in accordance with
law. Further, liberty is granted to both the parties to let in further oral and documentary evidence by examining the additional witnesses or
independent witnesses including the Advocate Commissioner who submitted his report, Ex.C.1 and to mark documents in the manner known to
law. In any event, the Executing Court is directed to dispose of the E.P. No. 136 of 2002 in O.S. No. 501 of 1997 after restoring the matter to
file, within a period of three months from the date of receipt of a copy of this order and report compliance to this Court without fail.