Research › Browse › Judgment

Himachal Pradesh High Court · body

1996 DIGILAW 215 (HP)

LACHMAN DASS v. DUNI CHAND

1996-10-26

D.RAJU

body1996
JUDGMENT D. Raju, C.J. (ORAL) 1. The above revision has been filed against the order of the learned Subordinate Judge 1st Class (I) Palampur, District Kangra, dated 19.9.1996 in CMA No.21/94 arising out of Civil Suit No.519/92/90 allowing an J application filed by the decree-holder under order 21 Rule 32 of the Code [ of Civil Procedure, for ordering the detention of the respondent-petitioners herein in prison and for ordering the attachment of the property for the alleged disobedience of the decree for permanent injunction passed against him in the Civil Suit, noticed above. 2. Having regard to the nature of the order to be passed in this revision, it Is inappropriate and un-necessary to delve at length with the details of the factual claims and counter claims on either side. Be that as it may, as noticed supra, the very application has been filed for enforcing the decree and for the alleged disobedience of the decree for permanent injunction by ordering detention and by ordering the attachment of the property of the petitioner/judgment debtor. Heard the learned counsel appearing on either side. 3. Though the respondent-decree holder appears to have marked in evidence Ex.A-1, the decree and got examined himself in addition two witnesses and the petitioner/ respondents in the court below also examined two witnesses in support of their respective cases, the court below appears to have committed a serious error in proceeding to decide the issue of such a nature which has been urged and which arose for consideration before the lower court merely on some oral assertion. If it involved and required proof of the cutting of hedge or trees and diversion of water course to establish or make out a case some more concrete material should have been brought on record in the form of plans drawn about the state of facts existing on grounds as on the date of the decree and the alterations, if any, said to have been made by the judgment debtors. That apart the decree-holder had an obligation to seek for the appointment of a local commissioner to notice the factual position existing as to the state on ground to prove such claims about the alleged action on the part of the respondent to defy and disobey the decree of injunction said to have been passed. That apart the decree-holder had an obligation to seek for the appointment of a local commissioner to notice the factual position existing as to the state on ground to prove such claims about the alleged action on the part of the respondent to defy and disobey the decree of injunction said to have been passed. The nature of inquiry undertaken by the learned Judge in the court below appears to be so summary and perfunctory without any reference to the seriousness of the order passed by him or the serious consequences flowing from such an order which has the tendency to interfere with the right to life of a citizen. Before passing such an order of detention in civil prison, a full proof case should have been made out of the alleged violation and on the slender materials noticed by the court below the learned Judge could not have come to such a conclusion about the alleged violation to condemn the petitioner to civil prison. 4. For all the reasons stated above, I am of the view that the order of the court below cannot be sustained on the materials noticed by the court below in support thereof and consequently the revision petition is allowed. The order of the court below is set aside and the matter shall stand restored to the file of learned judge in the court below and if the decree holder is keen for pursuing the claim about the alleged violation, it shall be open to him in addition to the material on record to seek for the appointment of a local commissioner to submit a report after inspection of the property and the area in the presence of the parties and the parties on either side shall be at liberty to adduce any further evidence in support of their respective stand. It is always open to the learned Judge in the court below to thereafter decide objectively the issue relating to the alleged violation and disobedience of the decree and pass appropriate order as it may warrant in accordance with law. The revision petition is allowed on the above terms. No costs.