IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP No. 956 of 2005()
1. V.T.SAMUEL, AGED 63 YEARS,
... Petitioner
Vs
1. T.S.ABRAHAM, AGED 73 YEARS,
... Respondent
2. V.S.JOHN, AGED 74 YEARS,
For Petitioner :SRI.PHILIP M.VARUGHESE
For Respondent :SRI.LIJU.V.STEPHEN
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :28/06/2007
O R D E R
PIUS C. KURIAKOSE,J.
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C.R.P. No.956 of 2005
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Dated: 28th June, 2007
ORDER
The defendant counter petitioner in an application for initiation of
action under Order XXXIX Rule 2A for alleged violation of an order of
temporary injunction is aggrieved by the order of the learned Munsiff
finding that the petitioner is guilty of disobedience of injunction order
and directing his arrest and detention in civil prison and also
attachment and sale of his property for payment of compensation to
the respondent-plaintiff and also the judgment of the lower appellate
court confirming the order of the learned Munsiff. The suit O.S.No.456
of 2004 was filed by the 1st respondent arraying the petitioner and the
2nd respondent herein as defendants for a decree of permanent
prohibitory injunction restraining the defendants from trespassing
upon the plaint item No.2 pathway or from reducing the same into
their possession or from making obstructions to the user of the
pathway by the plaintiff or from committing any act of waste upon the
pathway. Along with the suit I.A.No.2030/04, an application for
temporary injunction was also filed on 13.11.2004 and on the same
day the learned Munsiff granted temporary injunction which was
prayed for in the lines of the decree sought for in the plaint. An
Advocate Commissioner was appointed ex parte on the same day on a
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separate application filed by the plaintiff. The Commissioner filed
report, mahazer and draft sketch on 2.12.2004. The allegation of the
first respondent in the application under Order XXXIX Rule 2A was that
the petitioner-1st defendant in blatant violation of the temporary
injunction order obstructed the pathway by depositing heaps of jungle
stones on the pathway from the western side to the eastern side and
by spreading glass pieces and throwing through out the pathway. The
further allegation is that the first respondent is throwing stones on the
plaintiff and his workers whenever they attempt to use the pathway
notwithstanding the subsistence of the order of temporary injunction.
The contention raised by the petitioner in the application was that the
application is not maintainable; that he has not violated the order of
injunction; that plaint item No.2 is not a pathway, it is in fact a place
set apart by the forefathers of the petitioner who are agriculturists in
between the boundaries of their properties for the purpose of storage
of granite stone pieces; the said area is even now being used for the
said purpose; no pathway as alleged is in existence; the plaintiff
inflicted bodily injury on the wife of the petitioner who is now admitted
for treatment in the Government Hospital, Pathanamthitta;
Pathanamthitta Police have registered a crime case in respect of that
offence; the application under Order XXXIX Rule 2A has been filed with
a view to see whether the plaintiff can escape from criminal
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prosecution. The learned Munsiff deputed the Advocate Commissioner
who had prepared Ext.C1 series for a further visit to the property. This
time the Commissioner conducted inspection with notice to both sides
and filed Exts.C2 report and C2(a) plan. The learned Munsiff
considering the rival contentions and evaluating the evidence
particularly the reports and plan submitted by the very same Advocate
Commissioner on the basis of two inspections and the circumstances
attending on the case allowed the petition under Order XXXIX Rule 2A
and the District Judge as already indicated found in appeal that there
is no warrant for interfering with the order of the learned Munsiff.
2. I have heard the submissions of Mr.Philip M.Varghese, learned
counsel for the petitioner and also those of Mr.Liju V.Stephen, counsel
for the 1st respondent-plaintiff.
3. Mr.Philip M.Varghese would submit that O.S.No.456/04 is not
the only suit between the parties in respect of the suit property. The
petitioner has filed another suit O.S.No.509/04 in which also an order
of temporary injunction was issued against the first respondent herein.
An Advocate Commissioner was appointed in O.S.No.509/04 also and
he has filed a report in that suit which would show that the case of the
1st respondent regarding the pathway in question and the allegation
that the order of temporary injunction in O.S.No.456/04 has been
violated is untrue. The petitioner actually filed I.A.No.967/05 for calling
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the Commissioner’s report in O.S.No.509/04 as an item of evidence in
the prosecution petition. But the learned Munsiff did not consider that
I.A. at all. It is relying on an ex parte commissioner’s report in
O.S.No.456/04 that the learned Munsiff has passed the impugned
order on the petition under Order XXXIX Rule 2A. No opportunity was
given to the petitioner for cross-examining the Commissioner who
prepared the two reports relied on by the learned Munsiff and the
learned District Judge. The prosecution petition has been allowed in a
very casual manner by the learned Munsiff without any enquiry. The
impugned orders affect the liberty of the petitioner and orders which
are so consequential as the impugned order should not have been
passed by the courts below without testing the truth of what the
Commissioner had reported and what the 1st respondent has stated in
the petition by subjecting both of them to cross-examination. Learned
counsel would place before me copies of the Commissioners report and
plan in O.S.No.509/04. Learned counsel would fortify his submissions
on the basis of various judgments of this court including the judgments
in Yohannan v. Mathai (1991(2) KLT Sh.Notes Case No.36, P.25),
Thampi v. Malathi (2005(4) KLT 575) (authored by myself) and that
of the Supreme Court in Vidhyadhar v. Manikrao [(1999) 3 S.C.C.
573].
4. Learned counsel for the respondent Mr.Liju V.Stephen would
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resist the submissions of Mr.Philip M.Varghese as forcefully as he
could. Placing strong reliance of the judgment of this court in Nanu
Ramachandran v. Raman Uthaman (1994(2) KLT Sh.Notes Case
No.44, P.33 he would submit that in order to entail liability in
connection with under Order XXXIX Rule 2A it is not necessary to
prove formal service of the order by official route and it will suffice if
the respondent had knowledge of the exact order aliunde. It is well
settled that the authority and dignity of courts is to be maintained and
if any party is allowed to belittle the same it will affect the rule of law
and the result will be anarchy. The learned counsel took me
extensively through the judgment of the Supreme Court in Delhi
Judicial Service Association, Tiz Hazari Court v. State of Gujarat
(AIR 1991 S.C. 2176) and submitted that contempt proceedings is sui
generis having peculiar features which are not found in criminal
proceedings. The charge of contempt is tried on summary process
without any fixed procedure as the court is free to evolve its own
procedure consistent with fair play and natural justice. In contempt
proceedings unlike the trial for a criminal offence no oral evidence is
ordinarily recorded and the usual practice is to give evidence by
affidavits. This court will be sending a wrong message to violators of
court orders if the impugned orders are interfered with.
5. Having considered the rival submissions addressed at
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the Bar, in the light of the principles emerging from the various
judicial precedence cited before me by the learned counsel, I am
inclined to accept the submissions of the learned counsel for the
petitioner that the trial court was not justified in allowing I.A.
2320/2004 and in directing arrest of the petitioner as well as
attachment of the petitioner’s property on the reason that the
petitioner has violated the order of injunction passed against him
and the further submission that the lower appellate court was not
justified in not considering the petitioner’s request for remand to
the trial court. It is seen that it was mainly relying on the ex parte
commissioner’s report in O.S.456/04 that the learned Munsiff has
passed the order which was impugned before the lower appellate
court. No opportunity had been given to the petitioner for cross-
examining the Commissioner who prepared the two reports, which
were relied on by the learned Munsiff and the learned District
Judge. The authority and the dignity of the Court is very important
and nobody should be allowed to belittle the same. But personal
liberty of citizens is also equally important. I feel that the petitioner
should have been given an opportunity to cross-examine the
Commissioner and show that what the commissioner had reported
was not correct. The submissions of Shri.Philip M.Varghese have
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the support of the judgment in Yohannan Vs. Mathai, reported in
1991(2) KLT SN Case No.36 P.25, and that of the Supreme Court in
Vidhyadhar Vs. Manikrao, reported in 1999 (3) SCC 573. To a
certain extent they have support of my own judgment in Thampi
Vs. Malathi, reported in 2005 (4) KLT 575.
6. Therefore, I set aside the order passed by the trial court
in I.A.No.2320/2004 and the judgment of the District Court in CMA
No.39/2005 and remand I.A.No.2320/2004 to the Munsiff Court,
Pathanamthitta. The learned Munsiff is directed to take decision
afresh in the prosecution petition after affording an opportunity to
the petitioner for substantiating his objections filed by him against
the Commissioner’s reports. Both the parties should be permitted
to adduce whatever further evidence they have at their command.
Fresh orders will be passed by the learned Munsiff at the earliest.
Transmit the records back to the court below forthwith.
(PIUS C.KURIAKOSE, JUDGE)
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