V.S. Aypappan vs Fr. Thomas, Viruthiyil

S. Padmanabhan, J.—Plaintiff is the appellant and revision petitioner. Apprehending unauthorised construction of a road through his property by the respondents he sued them for injunction. In violation of the order of injunction issued by court, it is alleged that, the respondents, with help of others also, cut open a road through his land. By amendment he sought mandatory injunction also. Respondents said that the road was already there. Any how they denied their liability and pleaded that others are responsible for the acts of widening. Trial court decreed the suit both for mandatory and prohibitory injunctions and allowed the petition under Order 39 Rule 2A also though no attachment or imprisonment was ordered. The property was ordered to be restored to its original position. The C. M. Appeal against the order was allowed in full and appeal against the decree was allowed in part by vacating the order for restoration. Hence the second appeal and revision. Normally in second appeal I would not have thought of interfering with the appellate decree and the order. But in this case the injustice resulted is such that interference is found inevitable for doing justice. The evidence consist of the testimonies of PWs.1 to 5 and Dws. 1 to 10 as well as Exts. C1 to C4 reports and plans submitted by Pw.5, and Advocate Commissioner. PW.1 is the plaintiff and Dws,1 to 5 are the defendants. PWs.2 to 4 are the independent neighbours who heard and saw the instigation by the first defendant and actual commissions by defendants 2 to 5 and others. Pw.5 visited the property on the date of suit namely 28-11-1978 and thereafter on three more occasions. On the first day there was no road through the plaint property and fences on the three sides were found in tact. When he visited a second time the road was found cut open and fence destroyed. Both the trial court and appellate court found on evidence that in violation of the order of injunction the road was cut open after suit and after injunction order was taken for service. That finding is not under challenge.

First defendant is a Catholic priest in the locality having several years service there. The case of the appellant is that the road was cut open under the leadership of the defendants, particularly first defendant, and the other defendants as well as others physically joined in the acts. It is said that the acts were done with the knowledge of the injunction order which was taken to them but not accepted. It is the case of the appellant that first defendant is habitually getting himself involved in giving leadership for controversial construction of roads in violation of orders of injunction from courts. In this case he is said to have given such leadership by his presence and announcement over loud speaker instigating and inciting others to violate the order of injunction saying that he is not concerned with the orders of injunction issued by courts. Pws. 2 to 4 have spoken to these facts and they have also stated that defendants 2 to 5 and others cut open the road and destroyed the fence. After considering the entire facts and circumstances which include Exts, C1 to C 4 and the testimony of Pw. 5 as well as the admissions made by the first defendant as Dw. 1 and his demeanour as well as the evidence of a process server examined as Dw. 9 the trial court believed Pws. 1. to 4 and found that the road was cut open in violation of the order of injunction. Some of the defendants admitted their involvement as representatives of the people and public workers, though they denied violation of injunction and said that what was involved was only widening an existing road. So also the fact of a new road being cut open after the suit and injunction was found by both the courts.

In this background, particularly in the setting that the case depends mainly on oral evidence supported by the local inspections made by the Commissioner, the approach made by the appellate judge will have to be viewed. When the question for consideration for the appellate court is undoubtedly one of fact, the decision of which depends upon the appreciation of the oral evidence, the appellate court has to bear in mind that it has not the advantage which the trial judge had in having the witnesses before him in action and observing their demeanours and the manner in which they are deposing in court. That does not mean that when an appeal lies on facts, the appellate judge is not competent to reverse a finding of fact. The rule is-and it is nothing more than a rule of practice, prudence and caution-that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges on the credibility: of witnesses, then unless there is some Special feature about the evidence of a particular witness which has escaped the trial judge''s notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate court should not interfere with the finding of the trial judge on a question of fact. The appellate court is wrong in thinking that it would detract from the value to be attached to a trial judge''s finding of fact if the judge does not expressly base his conclusion upon the impressions he gathers from the demeanour of witnesses. The duty of the appellate court in such cases is to see whether the evidence taken as a whole can reasonably justify the conclusion which the trial court arrived at or whether there is an element of improbability arising from the proved circumstances which, in the opinion of the court, outweighs such finding Sarju Pershad Vs. Raja Jwaleshwari Pratap Narain Singh and Others, .

Dw. 9 is a process server who is an impartial witness. He said that first defendant is known in the locality as which indicates one who is associated with pathways. That is not disputed. Trial court found that as Dw. 1 first defendant was not giving straight answers to any question. That is correct also. As to who cut open the pathway he deviated in the box from what he said in the written statement. He admitted his involvement in giving leadership for road construction for the past several years. His connection with Panchayat and P. W. D. Officers in that respect as a social worker was conceded by him. He admitted having seen several paper reports on different occasions mentioning his association in several road constructions. He agreed that he is in the habit of collecting money and paddy from people for road makings. He also admitted that defendants 2 to 4 were his co-defendants at least in two cases connected with road constructions. Pws. 2 to 4 are impartial neighbours who do not have any ill-will towards him or interest in the appellant. They have clearly spoken not only to the overt acts, but also to the announcement, exhortation, instigation and incitement of the appellant to others over mike. The expression of his lack of respect towards the court was also spoken to by them. In these backgrounds when the trial court believed them the appellate court should have interfered only for valid reasons especially when the appellant had also no reason to falsely implicate the respondent.

I was not able to appreciate to any extent the way in which the appellate judge interfered with the reasoned findings of the trial court which are fully supported by probabilities also. Reasons assigned for interference are far from convincing. They are (1) If actually first defendant violated the injunction order and made open instigation there is no reason why he became chicken hearted to deny it in court. (2) Pws 2 to 4 admitted involvement of other persons but they could name only the defendants. (3) Pws. 2 to 4 are chance witnesses who are residing away. (4) Brother of the appellant who gave information to him was not examined. (5) In the affidavit filed by the appellant in support of his application he did not mention the names of Pws. 2 to 4 as eye witnesses. (6) knowing the consequences of violation of the order of injunction, defendants would not have dared to do so. (7) DWs. 6, 7 and 8 who have better competency than PWs.2 to 4 denied the involvement of defendants 1 to 5. (8) Injunction order is not proved to have been served. (9) Injunction was only against cutting open the road and not against instigation and (10) without impleading the other tortfeasors and locating their identity the defendant cannot be Id liable.

It is really bad reasoning to hold that the denial in court by a criminal or tortfeasor is a valid ground to reject the evidence regarding the courage with which the crime or tort was committed without fear of consequences. If such a reasoning is allowed to stand no crime or tort could be successfully proved. It is only common knowledge that the courage shown at the time of action fearless of consequences may not be shown in court where an admission is sure to meet with the penal consequences. Pws, 2 to 4 are disinterested neighbours against whom even the District Judge was not able to assign any reason for false implication. The only ground that they are chance witnesses in whose evidence some small discrepancies are there is no reason to discredit them in view of the broad probabilities. They reside within a distance of one or two furlongs and they gave plausible reasons for their presence. When an incident takes place in such a location the neighbours and pedestrians could only be the probable witnesses. Rejection of their evidence giving preference to the partisan witnesses Dws. 6 to 8 who are also beneficiaries of the road was not proper exercise of judicial discretion. In India in such a situation to reject a person as chance witness is not conducive to justice. Inability to identify all the tortfeasors from a crowd is no reason to reject the identification of the defendants Which is otherwise acceptable. We are not dealing with a crime where the first informant in an important witness depending on facts. So also the affidavit filed in a civil court, unlike the first information statement in a criminal case, cannot be rejected for the reason that eye witnesses are not mentioned therein. It is realty childish to reject the otherwise acceptable evidence for the reason that nobody will Commit a tort fearing consequences. Even though the injunction order was not personally served, the evidence is that it was taken to them and refused. The evidence further shows that the actions were with full knowledge of the injunction order after refusing to accept it.

The District Judge made a Wrong approach to the legal question also. His view that instigation, incitement, exhortation or, aid will not be violative of the injunction order is not sound or order. So also it is not correct to say that some of the tortfeasors alone cannot be proceeded Without others also. If a number of persons jointly participate in the commission of a tort, each is responsible jointly with each and all of the others, and also severally, for the whole amount of damages caused by the tort, irrespective of the extent of their participation. The person injured can sue any of them separately for the full amount of the loss; or he can sue all of them jointly in the same action. Even in the latter case the judgment obtained against all could be executed in full against any of them. Therefore, there is no meaning in saying that all the tortfeasors were not identified and joined as defendants. Joint tortfeasors are jointly and severally liable. Suit against some of them also will therefore lie. They are persons having their respective shares in the commission of the tort done in furtherance of common design. Vicarious liability is also there. All persons who aid or counsel or director join in the commission of a tort are also joint tortfeasors. There is no meaning in saying that a person who is only responsible for instigation or incitement or exhortation or aiding is not violating the injunction order. The wrong understanding of the legal position has also very much influenced the decision of the District Judge. That has created a substantial question of law because it resulted in wrong findings on issues which are of serious importance to the parties. Interference in appeal was therefore not to any extent justified. It is true that even though Order 39 Rule 2A and Order 21 Rule 32 have a punitive aspect, as held in The State of Bihar Vs. Rani Sonabati Kumari, and other decisions, as is evident from contemner being liable to be detained in civil prison for the contumacious violation of the injunction, the provisions are in substance designed to effect enforcement of or to execute the order and are not intended as penalty. But the fact remains that calculated and intentional violation of injunction issued by court is a matter affecting the dignity and authority of court which issued it and will have to be dealt with seriously. The time limit of detention for three months under Order 39 Rule 2A is not there in order 21 Rule 32 only because the former is comparatively punitive while the latter relates only to execution of an injunction decree where detention by court could be had indefinitely subject to its discretion till the decree is obeyed. Though the trial court did not exercise the discretion properly to uphold the prestige and dignity of court, I do not wish to interfere. Apart from directing restoration of the property to its original position and warning the first defendant for his highhandedness the trial court did not do anything more. Though the warning was also contended to be not warranted, I do not agree. Being a Priest holding a high position in Society the first defendant ought to have refrained from such illegal activities.,. He ought to have realised that the ultimate end of achieving a road for himself and others will not justify the illegal means adopted for that purpose by making inroads into the proprietary rights and that too at the risk of violating order''s of competent courts. He ought to have at least respected his position as a priest and refrained from wordly temptations. Though I am of opinion that himself and other defendants deserved a serious treatment, I do not propose to do anything more than restoring what the trial court did under the expectation that instances will not be repeated.

The second appeal and revision are allowed with costs throughout from the respondents. The decree and order of the appellate court are set aside and those of the trial court restored.