IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Shri Vinit Tibrewala Son of Late Radheshyam tibrewala Main Road, Tezpur Town PO Tezpur Mouza-Mahabhairab Dist-Sonitput, Assam CRP No. 369 / 2010. Petitioner/plaintiff -Versus- 1.Sri Bidya Kanta Upadhyaya S/O Late Gangacharan @ Ganraram Upadhaya 2.Sri Sri Baidyanath Upadhyaya S/O Late Gangacharan @ Ganraram Upadhaya Both residents of Village Koliabor Chulung (Police Outpost Uluwani) Dist-Nagaon, Assam..Opposite parties / Defendants PRESENT HON BLE MR. JUSTICE N. CHAUDHURY For the Petitioner For the Respondents : Mr.P Mahanta, Advocate : Mr. P Sundi, Advocate Date of hearing Date of Judgment : 10.05.2016 CRP No.369 of 2010 Page 1 of 9
JUDGMENT AND ORDER(ORAL) 1. Heard Mr. P Mahanta, learned counsel for the petitioner and Mr. P Sundi, learned counsel for the opposite parties. 2. In this application under section 115 of the Code of Civil Procedure, the order passed by the learned Civil Judge, Sonitpur in Misc. Appeal No. 1 of 2010 under Order XXXIX Rule 2-A of the Code of Civil Procedure has been called in question. 3. The present petitioner as plaintiff instituted Title Suit No. 46 of 2006 in the court of learned Munsiff No.1 at Tezpur praying for his declaration of right, title and confirmation of possession along with other prayers. In the said suit he also filed an application under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure praying for injunction and the learned trial court passed an order on 25.9.2006 directing the parties to maintain status-quo with respect to the suit property. It is the case of the opposite parties here that prior to institution of the suit there was a proceeding under Section 145 Cr.P.C. before Executive Magistrate at Tezpur wherein an order of attachment has been passed. The said order CRP No.369 of 2010 Page 2 of 9
of attachment was subsequently vacated. The opposite parties thereafter preferred a revision petition before the High Court and thereupon the order passed by the learned Executive Magistrate was stayed. It is the case of the opposite parties that after interim order was passed by the court, the attachment order passed by the Executive Magistrate stood automatically renewed and so the plaintiff /present petitioner ought not to have disturbed the status quo of the suit land but he did so with effect from 4.7.2007 by making construction on the suit land. Under such circumstances, he became guilty under order XXXIX Rule 2 A of the CPC and became liable for punishment. 4. Appearing in the case, the present petitioner filed objection denying the allegation of breach of injunction and stated that the suit itself had been dismissed for default on 1.8.2007 and so there was no question of any violation of status quo order. The present petitioner denied the allegation leveled and claimed to be tried. 5. Upon such rival contentions of the parties, the learned court permitted the opposite parties herein to lead evidence on the allegation of breach of injunction in Misc. (J) Case No. 78 of 2007. The opposite party examined himself as sole witness and exhibited as many as five documents. All these exhibits are the various orders passed in proceeding CRP No.369 of 2010 Page 3 of 9
under Section 145 Cr.P.C. before the Executive Magistrate and one stay order in Criminal Petition by the High Court arising out of the vacation of attachment order. The Opposite parties did not make any endeavour to exhibit or prove any injunction order passed by the learned trial court on 25.9.2006 or on any other date and thus in the absence of any document establishing continuance of injunction over the suit land in the form of status quo or otherwise, there was no material whatsoever on record to show that there was an order of status quo by a competent civil court and that the plaintiff had violated the same. The learned Munsiff having noticed such cryptic evidence of the opposite party herein rejected the Misc. (J) Case No.78 of 2007 holding that there was no violation of any injunction.. The photographs brought on record as material exhibits No. 1 and 2 dated 20.7.2007 could not be established as photographs of the suit property with respect to which status quo order is said to have been passed holding that in the present era of advancement of science and technology, there is every chance to enter a different data in a camera than a date on which a photograph was taken and as such there is always a suspicion on the date of photograph taken in the present age which can be put as per the wish of the operator. In view of the fact that the opposite party herein could not prove beyond reasonable doubt that there was a breach of injunction, the learned Munsiff dismissed the Misc. (J) Case No. 78 of 2007 by judgment and order dated 4.1.2010. CRP No.369 of 2010 Page 4 of 9
5. Aggrieved, the opposite parties herein as appellant instituted Misc. Appeal No. 1 of 2010 in the court of learned Civil Judge, Sonitpur. The learned judge by impugned judgment and order dated 13.8.2010 held the present petitioner guilty and without directing for his detention in civil prison asked him to demolish the construction already made within a period of one month from the date of the order. The Petitioner who is plaintiff in the main Title Suit has preferred this revision petition against the aforesaid order of the learned first appellate court. 6. Mr. P Mahanta, learned counsel for the petitioner would argue that an application under Order XXXIX Rule 2-A of the Code of Civil Procedure is a quasi criminal proceeding and it has to be proved beyond reasonable doubt that there was a violation of the order of injunction passed by a competent civil court. Here in the present case even the alleged injunction order has not been brought on record by the opposite parties and so there is no question of breach of any term of injunction order. He would further argue that unless and until the opposite party had proved beyond reasonable doubt that the injunction order passed earlier was breached during the period when the suit was in force, in that event question of violation cannot arise. The suit was dismissed for default on 1.8.2007 and the interim order, if any, came to an end thereby. There is CRP No.369 of 2010 Page 5 of 9
no averment anywhere in the application filed under Order XXXIX Rule 2- A CPC that the earlier injunction was subsequently restored. Restoration of a suit dismissed for default and restoration of an injunction order are two different things. Unless there is a specific order restoring the interim order passed in a suit which had been dismissed for default earlier, restoration of the interim order cannot be automatically inferred. With these arguments, Mr. Mahanta submits that the order passed by the learned first appellate court is vitiated by jurisdictional error and accordingly it is liable to be set aside and quashed. 7. Per Contra, Mr. P. Sundi, learned counsel for the opposite party would argue that the present petitioners are the plaintiff of the suit. They themselves obtained the interim order of status quo in an application filed under Order XXXIX Rule 1 and 2 of the CPC. Knowing that there was a status quo order they violated the same taking opportunity of vacation of attachment order by the learned executive Magistrate in 145 Cr.P.C. proceeding and so the learned first appellate court has not committed error in holding the present petitioner guilty under Order XXXIX Rule 2 A of the CPC. The learned counsel, Mr. P. Sundi, however, could not give any convincing reply when a pointed question was asked to him as to whether the original injunction order and or the subsequent restoration order after the suit had been dismissed for default was brought on record CRP No.369 of 2010 Page 6 of 9
by adducing appropriate evidence. Fact remains that neither the initial injunction order dated 25.9.2006 nor the subsequent restoration order, if there be any, was in front of the learned courts below at the time the application under Order XXXIX Rule 2-A CPC was considered. 8. Having heard the learned counsel for the parties and having considered the arguments made by them and on perusal of the rival pleadings and the sole deposition of PW-1, it appears that in the whole application filed under Order XXXIX Rule 2-A CPC, the opposite parties relied basically on the orders passed by Executive Magistrate in a proceeding under Section 145 Cr.P.C. Apart from making a passing remark in paragraph-1 of the application that there was an order of status quo by the learned trial court upon presentation of plaint and the injunction petition, no other averment has been made in the petition to show that as on the dates some construction was allegedly made by the present petitioner, there was an injunction in force and such construction was in breach of the terms of such injunction. Not only in the body of the application but also in course of evidence, the opposite party remained engaged in proving the documents of proceeding under Section 145 Cr.P.C. No other document has been introduced in evidence. Exhibits. 1 to 5 are documents of proceedings under Section 145 Cr.P.C. The opposite party being the petitioner in Misc. Case No.78 of 2007 was duty CRP No.369 of 2010 Page 7 of 9
bound to prove that there was an injunction order in force as on the date plaintiff had allegedly made construction over the suit land. Particularly, when plaintiff as pleaded and suggested in course of cross examination of sole PW that the suit had been dismissed for default on 1.8.2007 burden heavily fell on the opposite party herein to prove that as on the date of alleged construction by the plaintiff, there was an injunction order in force. The opposite parties were duty bound to bring on record at least a certified copy of the alleged injunction order, if there be any. The same was not done. If the suit was dismissed for default in that event injunction order even if was in existence in any point of time came to an end thereby. Unless and until such injunction order is restored by a specific order of the court, mere restoration of the suit would not result in restoration of injunction order. The learned trial court after perusing the evidence on record arrived at the finding that when alleged construction was made, there was no injunction order in force as admittedly the suit had been dismissed for default. This finding of the learned trial court did not receive any consideration whatsoever by the learned first appellate court. The learned first appellate court has failed to notice that neither the injunction order nor any evidence have been led to show that there was at all injunction order as on the alleged date of violation and in the absence of that the learned first appellate court committed jurisdictional error in arriving at the finding that there was a breach of injunction in CRP No.369 of 2010 Page 8 of 9
terms of the provisions order XXXIX Rule 2-A of the Code of Civil Procedure. Such finding of the learned first court, therefore, is perverse and cannot be sustained. 9. Accordingly, the revision petition is allowed. 10. The impugned first appellate judgment dated 13.8.2010 is hereby set aside. 11. No order as to cost. Nivedita JUDGE CRP No.369 of 2010 Page 9 of 9