Darga Deri Alias Vindhyachal Devi v. District Judge, Ballia
1993-02-09
SUDHIR NARAIN
body1993
DigiLaw.ai
Judgment Sudhir Narain, J. 1. The present writ petition has been directed against the order dated 4th May 1989, passed by the District Judge, Ballia. 2. The facts in brief are that the petitioner filed suit no. 660/87 for injunction restraining the defendant, the respondent no. 2 from demolishing the wall of her house shown by digits 1-2-3-4 in the site plan given at the foot of the plains and from dispossessing her from the house in dispute or from interfering with her peaceful possession over it, in any manner whatsoever. Her case was that her father Algoo Misra allas Laxmi Narain had executed a will on 26-4-1959 bequeathing his properties in her favour. Subsequently, he executed a registered gift deed on 10-1-1960 in her favour and his grandson, regarding the house in question. The defendant's house was situate towards north to her disputed house. He was an employee in Police Department and with the help of some unsocial elements he was threatening to enter into possession over the disputed house by force. The suit was filed on 11-12-1987 and on the same date the plaintiff filed application for temporary injuaction for restraining the defendant from demolishing the disputed wall shown by digits 3-4 in the plaint-map. The application was allowed by the trial court and temporary injunction was granted restraining the defendant from making constructions till 3-2-1988. An Amin of the court was directed to prepare the map and submit report The amin Prepared report and map its which disputed wall was shown in existence, he defendant on 3-2-1988 filed objection (14-C 2) against the injunction application and he also filed written statement. In the objection he denied the existence of the wall shown by digits 3-4 in the foot of the plaint map. He also filed written statement and denied the plaint allegations stating that the house belonged to one Ram Sunder Misra and after his death his widow Smt. Ram Dulari came into possession She Executed a registered will in his favour on 10-11-1981. After her death, the defendant became owner of the house on the basis of the will. On 24-2-1988, he filed objection (26/2) against the report, of the Amin and it was stated that he wrongly had shown the existence of the wall.
After her death, the defendant became owner of the house on the basis of the will. On 24-2-1988, he filed objection (26/2) against the report, of the Amin and it was stated that he wrongly had shown the existence of the wall. On 9-3-1988 the plaintiff sought amendment in the relief clause of the plaint praying that the wall in existence or any other wall be not demolished by the defendant 3. On 13-3-1988. the plaintiff moved an application (31/C-2) alleging that the defendants in violation of the Court's injunction order demolished the wall shown by digits 3-4 in the plaint map and opened a new door in the wall of his house with a view to encroach upon the courtyard of the plaintiff. She, accordingly, prayed that the defendant be ordered to re-elect the well shown by digits 3-4 and close the door which the defendant had opened in the wall. 4. The defendant filed objection and denied that the door was opened by him. He alleged that the door was very old. He denied that any wall, as alleged by the plaintiff, shown by digits 3-4 was ever in existence and there was no question of Ms demolishing such wail. The learned Munsif allowed the application and directed the defendant to re-erect the wall shown by digits 3-4 within one month and to close the new door during that period. The defendant filed revision against the said order before the District Judge who allowed the revision and set aside the order of the Munsif by his order dated 4th May, 1989. The petitioner has challenged this order. 5. The learned counsel for the petitioner urged that the revision was set maintainable against the order passed by the learned Munsif and the respondent no. 1 had no. jurisdiction to reverse the finding recorded by the trial court. 6. It is admitted that the plaintiff did not file any application for taking any action against the defendant under Order 39 Rule 2-A of the CPC. He simply filed an application under section 151 CPC. The trial court did not take any other evidence to come to the conclusion whether the disputed wall was in existence at the time of Institution of the suit and the defendant demolished such wall.
He simply filed an application under section 151 CPC. The trial court did not take any other evidence to come to the conclusion whether the disputed wall was in existence at the time of Institution of the suit and the defendant demolished such wall. He relied upon the ex-parte report and map of the Amla The defendant had filed an objection against the said report on 24-2-1988. He had also filed objection against the injunction application on 3-2-1988 and denied existence of the wall as alleged by the plaintiff. The trial court without deciding the objection and also without taking any other evidence passed an order directing the defendant to re-erect the wall and to close the door. The respondent no 1 had rightly held that unless the evidence is taken after giving an opportunity of hearing, no finding can be recorded regarding existence, and demolition of such wall by the defendants. It was a matter which could be determined by the Munsif alone after evidence was taken and the objection against the report of the Amin was decided. The procedure adopted by the Munsif was not in accordance with law. The court has inherent power to enforce its order, in case it has been violated and it can also pass a suitable consequential order. This is, based on the principle that no party can be allowed to take advantage of its own wrong inspire of the contrary order passed by the Court. The Court in its inherent jurisdiction can bring back the party to a position where it originally stood as if the order passed by the Court has not been contravened, vide the State of Bihar v. Usha Devi, AIR 1956 Pat. 455 , Magna v. Rustam, AIR 1963 Raj. 3 , Had Nandan Agarwal v. D.N. Pandita, AIR 1975 Alld 48, Radha Kishan v. Nauratan Mai Jain, AIR 1990 Raj. 127 . 7. In Sujit Pal v. Prabir Kumar Sun, AIR 1986 Gal. 220, the court held that the procedure prescribed under Order 39 Rule 2-A of the CPC lays down a punitive measure for the purpose of compelling the party to comply with the order of injunction.
127 . 7. In Sujit Pal v. Prabir Kumar Sun, AIR 1986 Gal. 220, the court held that the procedure prescribed under Order 39 Rule 2-A of the CPC lays down a punitive measure for the purpose of compelling the party to comply with the order of injunction. Sometimes the punishment may not be sufficient to give relief to the party who has suffered on account of violation of an order passed by the court or it may not get an immediate relief The court can under its inherent jurisdiction under section 131 CPC may exercise power to do justice by immediately intervening under circumstances which require such Intervention by the Court. It quoted with approval certain observation from Kerr on Injunctions, 6th Edition Page 41: "But where the injury is of so serious or material a character that the resorting things to their former condition is the only remedy which will meet the requirements of the case, or the defendant has been guilty of sharp practices or unfair conduct, or has shown a desire to steal a march upon the plaintiff, or to evade the jurisdiction of the Court, the injunction will issue, notwithstanding the amount of inconvenience to the other party, and though the expense thereby caused to him will be out of proportion to any advantage the plaintiff may derive from it." 8. The aggrieved party may file application under Order 39 Rule 2-A of CPC and in addition to it, it may file an application under section 151 CPC for restoring the position as it was on the date the injunction order was passed by the Court In case application is field under Order 30 Rule 2-A CPC, the Court will record a finding on evidence as to whether the opposite party had violated the order passed by the Court and in that case the order can be passed on application under section 151 CPC without further taking evidence separately but where application under section 151 CPC is filed without any application being filed under Order 39 Rule 2-A CPC, the Court will record a finding on the basis of material available on record. The parties will be given an opportunity to lead evidence and the Court will record finding on such evidence.
The parties will be given an opportunity to lead evidence and the Court will record finding on such evidence. In Sujit Pal v. P.K. Sun (supra) it was held that in case the Court relies upon the affidavits of the parties, it has to give opportunity to the parties to cross-examine the deponents of the affidavits. 9. In the present case the written statement was filed and one of the contention of the defendant was that the wall, as shown by digits 3-4, did not exist on the spot. This aspect relates to the merit of the case itself. The question as to whether any wail existed or any new door was opened by the defendant, is a matter to be decided in the suit itself, The parties have to lead evidence and the Court will have to record a finding on this issue. Looking into the facts of the present case, the interest of Justice would be met it the defendant is directed to deposit a sum of Rs.3000/- with the trial court before the date of hearing of the suit. In case it is found in the suit that the defendant had demolished the wall, the said amount shall be paid to the plaintiff. The defendant is, however, restrained from opening the door towards the disputed house during the pendency of the suit. 10. As the case is very old the trial court is directed to decide the ease expeditiously. The writ petition is allowed in part and the impugned order is set aside accordingly, the parties shall bear their own costs. Petition allowed.