{"id":15327,"date":"1979-03-27T00:00:00","date_gmt":"1979-03-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sudhir-namasudra-and-ors-vs-purnendu-kumar-das-on-27-march-1979"},"modified":"2019-02-16T07:55:45","modified_gmt":"2019-02-16T02:25:45","slug":"sudhir-namasudra-and-ors-vs-purnendu-kumar-das-on-27-march-1979","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sudhir-namasudra-and-ors-vs-purnendu-kumar-das-on-27-march-1979","title":{"rendered":"Sudhir Namasudra And Ors. vs Purnendu Kumar Das on 27 March, 1979"},"content":{"rendered":"
Gauhati High Court<\/div>\n
Sudhir Namasudra And Ors. vs Purnendu Kumar Das on 27 March, 1979<\/div>\n
Author: K Lahiri<\/div>\n
Bench: K Lahiri<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
 K. Lahiri, J.<\/p>\n
 1. The moot questions raised in the civil revision are:–\n<\/p>\n
 (A) What is the limit or extent of the jurisdiction of an appellate Court hearing an appeal under Order 43 Rule 1 (r) of the C. P. C.? Whether the appellate Court is competent to interfere with an order passed by the trial Court holding that there was no violation of an order of injunction merely because it arrives at a different conclusion on the same set of facts but without arriving at the conclusion that the findings arrived at by the trial Court were unreasonable, perverse or violative of any known principles of civil jurisprudence?\n<\/p>\n
 (B) Whether the judgment of the appellate Court can be sustained when the conclusion arrived at by the trial Court was grounded on several reasons and the appellate Court merely finds one of such grounds to be unreasonable and reverses the judgment and order of the trial Court?\n<\/p>\n
 (C) Whether a person not injuncted against by a civil court under Order 39 Rule 1 of the Code can be penalised for violation of an order of injunction?\n<\/p>\n
 2.   The present    petitioners were    not parties in title suit No. 26 of 1970 instituted by the opposite party in which an order   of   injunction   had   been   passed against    the    defendant    Aswini      (since dead). Late Aswini was   injuncted not to enter into the suit land.   There  was no order rendered    by   the   learned   Addl. Subordinate    Judge injuncting his    servants,  agents, workmen or     relations in the    manner set out in form No.    8    of Schedule  1, Appendix ‘F’ of    the    C. P.    C. The forms given in the    Appendix    are statutory forms  as enjoined  under Order  48 Rule 3 read with    Section 121 of the C.    P. C. However,   the forms are subject to alteration by the High Court under Section  121 of the C. P. C. Form    ‘P-18’ has been prescribed by Gauhati High Court in Civil Rules and Orders Vol.  II    page    278.    It clearly shows that a Court being satisfied can injunct a defendant    and also other persons like agents,     servants,  relations etc.   of the party.   The   indubitable position in    the present    case is that there was no    order of injunction against    the petitioners.     Violation of an    injunction is punishable   under   the Code itself. The nature of the proceeding and    quality of evidence which are    required to be proved and    established may not be of the standard of    criminal    proceedings.  Undoubtedly the proceedings are    punitive in nature.  It is an established law that allegations like    fraud,    undue influence establishment of violation of order of injunction being punitive    proceedings require stricter proof than civil  actions.\n<\/p>\n
 3. Be that as it may, in the instant case we are concerned with the question, as to whether persons not injuncted by an order of the court can be punished for violating a restrictive injunction. An injunction is a judicial process whereby a party is ordered to refrain from doing or to do a particular act or thing. It is well known, that the former is called ‘restrictive injunction,’ and the latter a ‘mandatory injunction.’ An injunction is an order of the Court. An interlocutory or interim injunction is to preserve matters ‘in situ’ until the case can be tried. In my opinion there cannot be a violation of an order of injunction by a person unless he is pointedly Injuncted not to do or to do certain things by a Court of law. In the instant case I have perused the order of injunction issued by the learned Addl. Subordinate Judge and find that the order did not contain any direction to the petitioners not to enter into the suit land.\n<\/p>\n
 As such, assuming, they had been in the land they are not liable for violation of the injunction.\n<\/p>\n
 4. In my opinion, when an appellate Court hears an appeal under Order 43 Rule 1 (r) it is an ordinary rule that findings arrived at by the trial court on appraisal of evidence recorded by him on noting the demeanour of the witnesses ought not to be disturbed unless the findings arrived at are such that it amounted to abuse of the process of the Court or caused injustice. The trial court has held that (1) the witnesses for the plaintiff were discrepant on all material particulars; (2) there was material variation of the case presented by the plaintiff in his application for violation of order of injunction and the case put forward in Court; (3) although on the own admission of the plaintiff there were independent and disinterested witnesses who had witnessed the alleged violation and whose names clearly appeared in the application of the plaintiff, they were not examined in court without assigning any reason. As such it has drawn an adverse inference against the plaintiff and disbelieved his allegation as to the alleged violation of the injunction by the petitioners and late Aswini.\n<\/p>\n
 5. The appellate Court below reversed the well reasoned order of the learned Addl. Subordinate Judge merely on the ground that in its own estimation the discrepancies were not material. The learned Judge did not arrive at the conclusion that the findings arrived at by the learned Addl. Subordinate Judge were not such that a reasonable person instructed in law could not have arrived at that conclusion. The learned Judge in appeal has merely touched the fringes of the discrepancies and did not take note of the material discrepancies found by the learned Addl. Subordinate Judge. I find that the learned Addl. Subordinate Judge has very rightly held the discrepancies to be material and the proved discrepancies or variations created grave doubt and established by preponderance of probability the case of the petitioners. That apart, the learned Judge reversed the finding of the learned Addl. Subordinate Judge without setting out his finding why the plaintiff did not examine the independent witnesses who were said to have been present at the time of the alleged breach of injunction. The learned appellate Court has not considered the material variation between the case presented    by    the      plaintiff    in      his application      and      the    case    put    forward by him    and    his    witnesses   during trial.  Under these circumstances the learned Judge was not    justified in setting aside the    order of the trial Court when the latter on consideration    of    all admissible       materials    reached  a    well reasoned  conclusion.  The learned    Addl. Subordinate Judge set out three reasons for rejecting the case of violation of injunction    against    the       petitioners    and Aswini.  The learned appellate Court merely  touched  the  fringes of one  point  and found it to be otherwise but could    not come to the    conclusion    that    the   two other findings were    unsupportable.    As such the appellate judgment    cannot    be sustained. The law as to reversal    by    a Court of apoeal of an order    made    by Judge below is well established. The appellate Court is competent to set    aside the    order    appealed    against    when    it reaches a clear conclusion that there has been wrongful exercise of power by the trial Court and  that no weight    or    no sufficient weight, has been given to relevant consideration.  Then the reversal of the order on appeal    may    be    justified. The Court of appeal should not interfere with  an  order  of  the  trial  Judge  acting within his jurisdiction until the appellate Court  is  clearly satisfied that  the    trial Court was wrong.  If three grounds are set out for arriving at    the    conclusion, the appellate Court shall be justified in reversing the conclusion reached    by    a trial Judge only on reversal of the three grounds but not otherwise. The Court of appeal cannot pick up only one point and after holding that    the    said   ground    is wrong cannot set aside the entire judgment  and  order of the  trial  Court  until it    finds the other    grounds to    be    unsupportable.  There is no doubt that the appellate Court is the    Court of    appeal on the question of fact as well    of    law but the judgment of the appellate Court would be incomplete if it does not meet all the points on the basis of which conclusion was arrived at by the trial Court and reverses the entire judgment    after reversing only one point.  In  the instant case the    appellate Court    has    reversed the finding on point No.  1;   but did    not touch the findings Nos, 2 and 3. The said findings have strong backing of evidence and  materials.  Under the  circumstances, I have no hesitation in holding that    the judgment of the appellate Court cannot be sustained. I have gone through the record and find that the findings Nos. 2 and 3 are based on materials on record.\n<\/p>\n
 As a result of the foregoing discussions I hold that the impugned appellate order cannot be sustained. Accordingly I reverse it and maintain the order of the trial Court.\n<\/p>\n
 6. In the result, I hold that the appellate Court has acted illegally and without jurisdiction in rendering the impugned order which has occasioned a failure of justice. I set aside the impugned order of the learned Addl. District Judge, Tripura in Misc. Appeal No. 3 of 1974. The petition is allowed. However, I make no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Gauhati High Court Sudhir Namasudra And Ors. vs Purnendu Kumar Das on 27 March, 1979 Author: K Lahiri Bench: K Lahiri ORDER K. Lahiri, J. 1. The moot questions raised in the civil revision are:– (A) What is the limit or extent of the jurisdiction of an appellate Court hearing an appeal under Order 43 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[15,8],"tags":[],"class_list":["post-15327","post","type-post","status-publish","format-standard","hentry","category-gauhati-high-court","category-high-court"],"yoast_head":"\nSudhir Namasudra And Ors. vs Purnendu Kumar Das on 27 March, 1979 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sudhir-namasudra-and-ors-vs-purnendu-kumar-das-on-27-march-1979\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sudhir Namasudra And Ors. vs Purnendu Kumar Das on 27 March, 1979 - 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