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2000 DIGILAW 439 (ORI)

BAISNAB PRADHAN v. GURU CHARAN PRADHAN

2000-09-05

P.C.NAIK

body2000
JUDGMENT : P.C.Naik, J. - Aggrieved with the dismissal of their appeal in which a challenge was made to the order of the trial Court ordering demolition of part of the building that was constructed in breach of the injunction order, defendants (petitioners herein) have preferred this revision. 2. The facts of the case are as follows : Opposite party herein as the plaintiff has filed a suit (T.S.No. 73/85) before the Civil Judge, Senior Division, Jajpur for partition in which the petitioners herein are defendants. One Misc. Case under Order 39 Rule 2-A of the CPC (in short, 'the Code') was filed for restraining the defendants from raising any construction over the suit land appertaining to plot No. 1748 measuring Ac.0.30 decimals and plot No. 1878 measuring Ac.0.24 decimals under Khata No. 327 of village Nahana and for maintaining status quo. During pendency of the suit, an ad interim injunction was granted restraining the defendants from making any construction over the suit land or putting up any new fence, removing the existing fence or trees standing over the suit land. The ad interim injunction was made absolute on 20.12.1986. These facts are not disputed. 3. According to the plaintiff, in spite of the injunction order, the defendants taking advantage of the fact that the Court was closed for summer vacation, put up a new construction upto the lental level for which the plaintiff approached the S.D.M. on whose direction, the police directed the defendants not to proceed with the construction. However, before the Courts were closed for summer vacation the following year, the defendants made a prayer for putting up a temporary thatched roof over two rooms and a hall which was granted. But, as soon as the Courts were closed, the defendants completed the half constructed building from the lental level to roof level and cast a 'pucca' roof leaving a gap of about 8" to 9" between the defendants' building and the pre-existing building of the plaintiff. Aggrieved with the action of the defendants, the plaintiff moved a Misc. Case under Order 39, Rule 2-A read with Section 151 of the Code for taking appropriate action against the defendants including an order for demolition of the illegal construction. 4. While considering the Misc. Aggrieved with the action of the defendants, the plaintiff moved a Misc. Case under Order 39, Rule 2-A read with Section 151 of the Code for taking appropriate action against the defendants including an order for demolition of the illegal construction. 4. While considering the Misc. Case, the trial Court examined the matter at length in which witnesses were examined by both the parties, of which, three witnesses, i.e., P.Ws., 4, 5 and 6 were the pleader commissioner who were deputed by the Court on different occasions to make local investigation. On a consideration of the material adduced before the Court including the reports of the pleader commissioners, the Court came to the conclusion that the defendants had, in violation of order of injunction passed by the Court, constructed the building in question and that they were liable for violation of the order of injunction. Accordingly, an order was passed directing the defendants to demolish the entire building that had been constructed over the suit plot No. 1748. Aggrieved therewith, the defendants preferred an appeal before the Additional District Judge, Jajpur and the same having been dismissed, they have approached this Court by way of this revision for relief. 5. At the out-set, it may be stated that the contentions on behalf of the defendants that the Courts below were in error in passing the order of injunction as the dispute was between the co-sharers, cannot be permitted to be urged in this proceeding, for the question for adjudication before the trial Court in the proceeding which has given rise to this revision was as to whether or not the defendants had committed breach of the injunction order. Whether the injunction had been granted rightly or wrongly is wholly foreign to the enquiry under Order 39, Rule 2-A of the Code. During the course of enquiry, evidence was led from both sides and on a consideration thereof, the trial Court, by elaborate reasoning, came to the conclusion that the defendants had proceeded with the construction in breach of the injunction order. This finding has been affirmed in appeal. As a matter of fact, the fact that a construction was put up after the injunction order was not disputed by the defendants. The only dispute was as to whether the entire construction or a part of it, was put up after passing of the injunction order. This finding has been affirmed in appeal. As a matter of fact, the fact that a construction was put up after the injunction order was not disputed by the defendants. The only dispute was as to whether the entire construction or a part of it, was put up after passing of the injunction order. But the concession that some construction was put up after the injunction order clearly indicates that the defendants have committed a breach of the injunction order which finding being a factual one cannot be interfered with in this revision. It was also contended that since a specific remedy is provided under Order 39, Rule 2-A, no demolition order could be passed u/s 151 of the Code. This contention, however, appears to be misconceived. As it appears, the application (Misc. Case No. 104 of 1986) was styled as one under Order 39, Rule 2-A read with Section 151 of the Code. The mere mention of Section 151, C.P.C. in the application does not mean that the order of demolition was passed in exercise of that power. It cannot be denied that the application was one under Order 39, Rule 2-A of the Code and the mere fact that Section 151, C.P.C. was mentioned does not have the effect of making the application defective. If it may be said so, the mention of Section 151, C.P.C. was wholly unnecessary, as the entire matter was to be examined and appropriate orders passed in exercise of power under Order 39, Rule 2-A of the Code. There can be no denial to the fact that the order of demolition has been passed in exercise of powers under Order 39, Rule 2-A of the Code. The contention, therefore, needs to be rejected. It was also contended that since the plaintiff has not been declared to be the exclusive owner of plot No. 1748, an order for demolition of the building in question will cause serious prejudice to the defendants. The contention, therefore, needs to be rejected. It was also contended that since the plaintiff has not been declared to be the exclusive owner of plot No. 1748, an order for demolition of the building in question will cause serious prejudice to the defendants. It was submitted that as the parties are co-sharers, the question of entire plot bearing plot No. 1748 being allotted in favour of the plaintiff does not arise as the shares of the parties have been carved out on the basis of the judgment and decree of the trial Court, such as, plaintiff 1/3rd, defendants 1 to 5-1/3rd and the remaining l/3rd to defendants 6 to 14, which is also the subject-matter of appeal. 6. The contentions raised are mentioned to be rejected for the simple reason that in this petition, these questions are wholly irrelevant. The only relevant question is, whether or not the defendants have committed a breach of the injunction order. 7. Both the Courts below, on the basis of the material before them, have come to a concurrent finding that the defendants are guilty of committing breach of the injunction order and having gone through the material on record, this Court finds no good ground to take a different view as the said finding is based on a proper appreciation of the material on record. Accordingly, the finding that the defendants are guilty of having committed the breach of the injunction order, has to be accepted. The fact that the defendants commenced the constructions and completed the work during two successive summer vacations when the Court was closed itself indicates their defiant attitude and scant regard for the Court's order of injunction. Such a deliberate action cannot be countenanced and has to be dealt with firmy. Under the circumstances, the orders of the Courts below call for no interference. 8. In the result, the revision fails and is dismissed. There shall, however, be no order as to costs. Final Result : Dismissed