For invoking power under Order 39 Rule 2-A, the following three conditions must be satisfied, namely:- (i) there should be an order of injunction (ii) other party has knowledge about the injunction order and (iii) the said injunction order is violated or disobeyed.
THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Appeal From Order No. 344 of 2013
Decided On: 31.07.2018
Ashraf Ahmad Vs. A.S. Bhartari and Ors.
Hon'ble Judges/Coram:
Manoj Kumar Tiwari, J.
Citation: AIR 2018 Uttarakhand 198
1. There is delay of 249 days in filing the restoration application. Learned counsel for the respondents do not oppose the delay condonation application. Cause shown in the delay Condonation application is sufficient, therefore the same is allowed and the delay in filing restoration application is allowed.
2. For the reasons stated in the restoration application, it is also allowed and appeal is restored to its original number. With the consent of parties, the appeal is heard and decided at admission stage itself.
3. This appeal has been filed under Order 43 Rule 1 (r) read with Section 104 C.P.C., against the order passed by learned Trial Court in exercise of powers under Order 39 Rule 2-A read with Section 151 C.P.C., whereby defendant No. 2 (appellant herein) was directed to remove the illegal encroachment made by him on the suit property within one month, failing which, he shall be liable for detention in civil prison for 15 days.
4. It transpires that the defendant no. 2 (appellant herein) was a tenant in a shop, which was part of an old building situated at Gandhi Road, Dehradun. There were as many as nine shops in the said building, which were occupied by different tenants. Nagar Nigam, Dehradun in exercise of powers under Section 308 of Municipal Corporation Act, 1959, passed an order on 22.11.2011 directing the owner of the said building to immediately demolish the building on the ground that it was posing threat to the passersby. Pursuant to the said order, the building was pulled down on 09.12.2011 by a joint team consisting of officials of Public Works Department, Nagar Nigam and Mussoorie Dehradun Development Authority.
5. On 09.12.2011 itself, defendant no. 2 (appellant herein) filed an appeal under Municipal Corporation Act, 1959, which was registered as Municipal Appeal No. 16 of 2011 in the court of Civil Judge (S.D) Dehradun and on the same date i.e. 09.12.2011, an interim order was passed in the said appeal whereby the demolition order passed by Nagar Nigam was stayed.
6. It is the contention of the plaintiff (respondent herein) that the order of demolition passed by Nagar Nigam was executed before stay order was passed in appellants Municipal Appeal No. 16 of 2011, whereas contention of the defendant no. 2 (appellant herein) is that only part of structure of his shop was demolished. Thus, there is no dispute that demolition had been carried out before the appellant could obtain stay order from the court concerned in Municipal Appeal No. 16 of 2011, and despite is only regarding extent of demolition.
7. Thereafter, on 20.12.2011, owner of the building (respondent no. 1) filed a suit seeking relief of perpetual prohibitory injunction against the tenants restraining them from interfering with his possession and also restraining them from encroaching upon the suit property, which according to him was open land after demolition of the building. Said suit was registered as O.S. No. 542 of 2011 and on 20.12.2011 itself, learned Trial Court i.e. Civil Judge (S.D) Dehradun granted temporary injunction in favour of respondent no. 1. English translation of the order of temporary injunction is as follows:
"Defendant nos. 1 to 12 are restrained from illegally interfering with and encroaching upon the suit property till the next date fixed in the suit."
8. On 23.12.2011, defendant no. 2 (appellant herein) filed his written statement alongwith his counter claim. In the counter claim, appellant sought relief of perpetual injunction against the plaintiff, restraining him from interfering with his possession over the property under his tenancy and further not to interfere in the repair work undertaken by him. Another relief which was sought by him was that he may not be evicted from the shop in question without following due process of law. In para-37 of the written statement defendant no. 2 (appellant herein), admitted that part of the shop under his tenancy has been demolished due to which size of the shop has been reduced.
9. On 12.01.2012, plaintiff (respondent no. 1 herein) moved one application purporting to be under Order 39 Rule 2-A read with section 151 C.P.C. with the allegation that the temporary injunction order dated 20.12.2011 passed by the Trial Court in O.S. No. 542 of 2011 has been disobeyed by Defendant No. 2 as he has raised construction over the suit property in the month of December, when Civil Courts were closed on account of winter vacation. In para-8 of the said application, it was stated that plaintiff upon returning to Dehradun on 04.01.2012 came to know that two walls have been constructed over his land in violation of the order of temporary injunction.
10. Defendant no. 2 filed objection to the aforesaid application of the plaintiff. In para-8 of his objection, Defendant no. 2 stated that he has neither raised any construction nor is trying to encroach upon the suit property. In para-35 of the objection, appellant stated that the demolition order passed by Nagar Nigam was stayed by the appellate court on 09.12.2011 and further that the portion of the shop which was damaged after grant of stay, was repaired before 20.12.2011 i.e. the date on which the O.S. No. 542 of 2011 was filed by owner of the building.
11. Learned Trial Court in order to ascertain the correct position obtaining on the spot, issued a Commission under Order 26 Rule 9 C.P.C. The Court Amin submitted his report dated 26.09.2012 which is enclosed as Annexure-11 to the affidavit filed in support of stay application. In the report, it has been stated that at first sight, semi demolished walls, debris and some newly constructed walls without roof and two shops (one with Pakka roof and another with new tin roof) are visible and at other place, there were small time shop keepers running their business under plastic sheets/tarpaulin. A site plan was also shown in the report submitted by Court Amin and below the site plan it was stated that there were only two shops which were having roof, one belonging to the defendant no. 2 and another belonging to Harish Chandra.
12. Learned Trial Court upon considering relevant aspects, including plaintiff's application and the objection submitted by defendant no. 2, came to the conclusion that Defendant No. 2 has raised construction after 20.12.2011, thus violated order of the Court. Accordingly it passed an order on 03.08.2013 whereby defendant nos. 1 to 4 were directed to remove the encroachment made by them, within one month from date of the order, failing which, they shall be liable for detention in civil prison for 15 days. This order has been challenged by Defendant No. 2 in this appeal.
13. Learned counsel for Defendant No. 2 (appellant herein) submits that Defendant No. 2 has filed counter claim and the very purpose of filing counter claim would be frustrated if the order impugned is executed. He further submits that the order impugned has been passed against the appellant only on the basis of newspaper report and photographs in the absence of any other credible evidence. He also submits that proceedings under Order 39 Rule 2-A are in the nature of contempt proceedings, in other words, they are quasi criminal in nature, therefore, the same degree of proof would be needed as is required in the case of criminal trial.
14. Per contra, Shri Siddhartha Singh, learned counsel for plaintiff (respondent no. 1 herein) submits that all the tenants were defendants in the suit and Defendant Nos. 6, 10 & 11 have categorically stated in their written statement that the entire building was pulled down and thereafter no one was in possession over any part of the building. He further submits that Nagar Nigam Dehradun made a complaint to MDDA on 20.12.2011, regarding the construction raised by Defendant No. 2. He submits that there is ample evidence on record to prove that temporary injunction order was violated by the appellant.
15. Heard learned counsel for the parties, and perused the material on record.
16. Learned counsel for respondent no. 1 has placed reliance upon Division Bench judgment of Allahabad High Court in the case of Israwati (Smt.) v. State of U.P. and others reported in 2009(3) ARC 625 in support of his contention that the inherent powers of the Court under Section 151 C.P.C are wide and are not subject to any limitation which can be used to set the wrong right and not allow the wrong done to be perpetuated. Paragraph Nos. 7 to 14 of the said judgment is extracted below:-
"7. The power of Section 151 CPC to pass order of injunction in the form of restoration of possession of the Code is not res integra now.
8. The inherent powers of the Court under Section 151 CPC are wide and are not subject to any limitations. Where in violation of a stay order or injunction against a party, something has been done in disobedience, it will be the duty of the Court as a policy to set the wrong right and not allow the perpetuation of the wrong dung.
9. The inherent power will not only be available is such a case, but it is bound to be exercised in that manner in the interests of justice.
10. Even apart from Section 151 CPC, we observe that as a matter of judicial policy, the Court should guard against itself being stultified in circumstances like this by holding that it is not powerless to undo a wrong done in disobedience of the Court's order. But in this case it is not necessary to go to that extent as we hold that the power is available under Section 151 CPC.
11. In the case of Meera Chauhan v. Harsh Bishnoi & Anr., reported in MANU/SC/8795/2006 : 2007 SCFBRC 129: 2007 (1) ARC 336: JT 2007 (1) SC 458, the Hon'ble Apex Court has held as under:
"15. On a bare perusal of Section 151 of the Code of Civil Procedure, it cannot be said to be in dispute that Section 151 confers wide powers on the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.
17. In Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, while dealing with the power of the Court to pass orders for the ends of justice or to prevent the abuse of the process of the Court, the Hon'ble Supreme Court held that the courts have inherent jurisdiction to issue temporary order of injunction in the circumstances which are not covered under the provisions of Order 39 of the Code of Civil Procedure.
18. At the same time, it is also well settled that when parties violate order of injunction or stay order or act in violation of the said order the Court can, by exercising its inherent power, put back the parties in the same position as they stood prior to issuance of the injunction order or give appropriate direction to the police authority to render aid to the aggrieved parties for the due and proper implementation of the orders passed in the suit and also order police protection for implementation of such order.
19. It is also well settled that when in the event of utter violation of the injunction order, the party forcibly dispossesses the other, the Court can order restoration of possession to the party wronged."
12. Further in the case of Manohar v. Hira Lal, reported in MANU/SC/0056/1961 : AIR 1962 SC 527, the Hon'ble Supreme Court has held:
"While dealing with the power of the Court to pass orders in the ends of justice or to prevent the abuse of process of the Court, the Court has got inherent powers to pass an order under Section 151 CPC which confers wide power of the Court to make such orders as they may be necessary for the ends of justice, or prevent the abuse of the process of the Court."
13. Further in the case of Ram Chand & Sons Sugar Mills (P) Ltd. v. Kanhayalal Bhargava, reported in (2004) 11 SC 177 the Hon'ble Supreme Court has held:
" The inherent power of a Court is in addition to and complementary to the power expressly conferred under the Code. But that power will not be exercised if its exercise is inconsistent with, or comes into conflict with, any of the powers expressly or by necessary implication conferred by the other provisions of the Code. If there are express provisions exhaustively covering a particular topic, they give rise to a necessary implication that no power shall be exercised in respect of the said topic otherwise than in the manner prescribed by the said provisions. Whatever limitations are imposed by constructions on the provisions of the Section 151 of the Code, they do not control the undoubted power of the Court conferred under Section 151 of the Code to make a suitable order to prevent the abuse of the process of the Court."
14. As discussed above, the Court has inherent power under Section 151 CPC to prevent the abuse of process of the Court by any of the parties, In these circumstances, once the petitioner had already filed an application under Section 151 and the same is still pending and the matter is sub-judice, therefore, we are not inclined to interfere in the matter."
17. Learned counsel for respondent no. 1 has placed reliance upon yet another judgment of Allahabad High Court in the case of Satya Prakash and another v. Ist Additional District Judge, Etah and others reported in MANU/UP/0252/2002 : 2002 (1) ARC 450. Para-31 of the said judgment is extracted below:-
"31. Coming to the applicability of second point of determination formulated to the facts and circumstances of the present case, it is evident from material available on record that the contesting respondents have no respect for rule of law. Even after full knowledge of interim injunction by Advocate Commissioner, the contesting respondents demolished the disputed walls and opened new door and window. In the present case, final argument was indisputably heard on 26.8.2000 and it is inferable that 2.9.2000 was date fixed for pronouncement of judgment, but by overwriting, date of pronouncement was changed which is apparent from perusal of certified Photostat copy of the order sheet, Annexure-11 to the writ petition, which is indisputably prepared by mechanical process. Judicial restraint does not permit me to elaborate except making observation to the effect that straying normal standard of maintaining order sheet dated 26.8.2000, in the case on hand is giving room for aberration leading to erosion of public confidence. Be that as it may, the contesting respondents cannot be allowed to reap the fruits of their high handedness in demolishing the disputed wall and opening of door and window and also a new passage on the side of the petitioners in hurried and clandestine manner. I am of the view that if the contesting respondents are given benefit of their wrongful act, it would tantamount to travesty of justice and fair play. In the given facts and circumstances of the case, it is held that it would be just and fair in the interest of justice to direct the contesting respondents to undo the wrong done to the petitioners by demolishing the construction made during the pendency of litigation and both the parties deserve to be relegated on the position of status quo ante on the date of passing of temporary injunction by trial court on 18.2.1999 pending litigation. The defendant 1st set arrayed as respondent No. 3 in the present petition cannot be permitted to ridicule the temporary injunction granted by trial court on 18.2.1999. Annexure-9 to the writ petition in the facts and circumstances of given case discussed hereinabove."
18. For invoking power under Order 39 Rule 2-A, the following three conditions must be satisfied, namely:- (i) there should be an order of injunction (ii) other party has knowledge about the injunction order and (iii) the said injunction order is violated or disobeyed.
19. In the present case there is no dispute that learned Trial Court granted injunction against Defendant Nos. 1 to 12 in Original Suit No. 542 of 2011 on 20.12.2011. Since, Defendant No. 2 (appellant herein) filed written statement with counter claim in the said suit on 23.12.2011, therefore, he cannot contend that he had no knowledge about the injunction order and knowledge can be imputed to him on 23.12.2011, if not on 20.12.2011.
20. Since, the allegation made by plaintiff (respondent herein) is that Defendant No. 2 had raised construction in violation of the temporary injunction granted on 20.12.2011, therefore, enquiry into following two aspects becomes necessary namely (a) whether Defendant No. 2 did raise any construction over the suit property (b) If yes, whether such construction was raised in violation of the order of temporary injunction with full knowledge.
21. It is the contention of the Defendant No. 2 (appellant herein) that he repaired the shop before passing of order of temporary injunction while plaintiff alleges that Defendant No. 2 raised construction after passing of order of temporary injunction. Since proceedings under Order 39 Rule 2-A are akin to contempt proceedings and therefore are quasi criminal in nature, therefore, higher degree of proof would be needed for holding Defendant No. 2 (appellant herein), guilty of violating order of temporary injunction.
22. In the impugned order, learned Trial Court has arrived at the conclusion that Defendant No. 2 (appellant herein) is guilty of violating the order of temporary injunction. However, the said finding is bereft of any reasoning and there is no discussion regarding the material, based on which learned Trial Court reached to this conclusion. Since, higher degree of proof is required for punishing a person for causing disobedience or breach of injunction, therefore, Defendant No. 2 (appellant herein) cannot be held guilty on preponderance of evidence. There is no discussion as to how learned Trial Court came to the conclusion that appellant raised the construction after passing of the order of temporary injunction.
23. A perusal of the order dated 03.08.2013 impugned in this appeal reveals that learned Trial Court has held that Defendant Nos. 1 to 4 have violated the order of temporary injunction by raising construction over the suit property. Since, the proceedings are quasi criminal in nature, therefore, higher degree of proof would be needed for holding someone guilty of violating order of the Court. A perusal of the impugned order reveals that no credible evidence has been considered and discussed by learned Trial Court for recording the finding that Defendant No. 2 (appellant herein) raised construction after 20.12.2011, when order of temporary injunction was passed. A perusal of the impugned order further shows that learned Trial Court has abruptly come to the conclusion that the appellant violated the temporary injunction order despite having knowledge about the same "and no reasoning has been given in support of said conclusion".
24. In such view of the matter, since, this most vital aspect of the matter has not been properly dealt with in the impugned order, therefore, the impugned order dated 03.08.2013 cannot be sustained in the eyes of law and the same is therefore set aside.
25. The appeal from order is allowed and the matter is remitted back to learned Trial Court to decide plaintiff's application under Order 39 Rule 2-A read with Section 151 C.P.C. afresh, in accordance with law.
No comments:
Post a Comment