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2005 DIGILAW 2277 (RAJ)

Bhagu Devi v. Chatarbhuj

2005-08-29

GOPAL KRISHAN VYAS

body2005
Judgment Gopal Krishan Vyas, J.-This revision petition is directed against the order passed by the Civil Judge (Junior Division), Nathdwara on 21.01.1999 and order passed in appeal by the learned Additional District Judge, Nathdwara dated 18.09.2001. The trial Court passed order on the application filed under Order 39 Rule 2(3), CPC for initiating contempt proceedings against the petitioner and vide Judgment dated 21.01.1999 the learned trial Court passed order for 15 days civil imprisonment to the petitioner. The said order was challenged by way of appeal to the Additional District Judge, Nathdwara who ordered remand of the case to the trial Court and directed the parties to be present before the trial Court on 010.2001. The trial Court was directed to modify the order in accordance with Order 39 Rule 2A of the Code of Civil Procedure for passing order for attachment of the property of the contemner which was not passed by the trial Court in order dated 21.01.1999. The petitioner by way of the present revision petition has challenged the said orders. 2. A Suit for permanent injunction was filed by the petitioner praying that the house in question was willed to her by her father-in-law late Nanalal by way of registered will dated 13.06.1986. Her father-in-law Nanalal died on 210.1990 and by virtue of that will she is the sole owner of the house and is in possession of the same. She pleaded in the plaint that the defendants are threatening her to dispossess her from the suit property and, therefore, she also moved application under Order 39, Rules 1 and 2 CPC The defendants filed reply to the application and pleaded that the plaintiff may be restrained from raising any construction and changing the structure of the house. The defendants also pressed their counter-claim and claimed share in the suit property. The application filed under Order 39 Rules 1 and 2, CPC was partly allowed and it was ordered that the defendants shall not interfere in the possession of the plaintiff but the Court also directed the plaintiff that till the decision of the suit no substantial change in the house should be made so as to change the shape of the property. 3. Defendant Chatabhuj filed application under Order 39 Rule 2A CPC alleging that the plaintiff has sold the suit property on 01.02.1997 to one Smt. Lalita Devi for a consideration of Rs. 3. Defendant Chatabhuj filed application under Order 39 Rule 2A CPC alleging that the plaintiff has sold the suit property on 01.02.1997 to one Smt. Lalita Devi for a consideration of Rs. 50,000/-and has thus changed the shape of the property. The defendant pleaded that the sale was null and void as per Section 62 of the Transfer of Property Act and prayed that the plaintiff-petitioner be punished by way of civil imprisonment or her property may be attached. In reply to the application, while admitting the fact of sale of the property to Smt. Lalita Devi the plaintiff denied allegation of having changed the shape of the property and thereby committing any contempt of the order of the Court. The plaintiff pleaded that she was not restrained from alienating the property by sale and she was only restrained from raising any substantial construction/structure so as to change the shape of the property. Both the Courts below opined that the plaintiff-petitioner has acted in contravention of the order passed by the trial Court on 01.08.1995 by selling the property. The Courts below have observed that by selling the property the plaintiff has substantially changed the shape ¼Lo#i½ of the property. This observation of the Courts below is based on deduced interpretative meaning of the order dated 01.08.1995 and, as a matter of fact, the trial Court did not specifically restrain the plaintiff from alienating the property by sale etc. 4. Despite service of notice none has turned up for and on behalf of the respondent. 5. I have heard learned Counsel for the petitioner and perused the material on record. 6. Learned Counsel for the petitioner has submitted that the suit of the petitioner has been decreed in her favour during the pendency of the revision petition and, therefore, the counter-claim of the defendants stands rejected. By the Judgment dated 23.01.2004, the trial Court while decreeing the suit passed order that the defendants shall not interfere in the peaceful possession of the plaintiff over the suit property. According to the learned Counsel, the matter stands finally adjudicated in favour of the plaintiff-petitioner. In support of his submission he has placed before the Court certified copy of the Judgment dated 23.01.2004. 7. According to the learned Counsel, the matter stands finally adjudicated in favour of the plaintiff-petitioner. In support of his submission he has placed before the Court certified copy of the Judgment dated 23.01.2004. 7. Learned Counsel for the petitioner contended that in the order dated 01.08.1995 the trial Court restrained the petitioner from changing the shape of the property and as such there was no order restraining the plaintiff from selling the property which was willed in her favour by her father-in-law late Nanalal through registered will dated 13.06.1986. According to the petitioner there was no dispute with regard to the title of the property though counter-claim was presented by defendant-respondent. Learned Counsel for the petitioner contended that the order dated 01.08.1995 passed on the application filed under Order 39 Rules 1 and 2, CPC requires to be interpreted to mean that the plaintiff was only restrained from raising any construction/structure so as to change the shape of the property because plaintiff had filed the suit for permanent injunction against the defendant-respondents. Learned Counsel for the petitioner lastly contended that where an ambiguity in the meaning of the order emerges and such ambiguity is capable or two or more interpretations and the party being proceeded against, in fact, did not intend to disobey the order; but, conducted himself in accordance with his interpretation of the order, in the circumstance, the question is whether the party has understood the order in a particular manner and has conducted himself in accordance with such construction is primarily one of fact and where the material before the Court does not support such state of affairs the Court cannot attribute an innocent intention based on presumption for the only reason that ingenuity of the Counsel can discover the equivocation in the order which the subject of enforcement. In this behalf , learned Counsel for the petitioner placed reliance upon State of Bihar vs. Rani Sonabati Kumari, AIR 1961 SC 221 . 8. In the instant case, admittedly the petitioner is a lady in whose favour the property was willed and she filed the suit when her possession over the property in question was threatened by the defendants. The said suit was for permanent injunction and has ultimately been decreed in her favour. 8. In the instant case, admittedly the petitioner is a lady in whose favour the property was willed and she filed the suit when her possession over the property in question was threatened by the defendants. The said suit was for permanent injunction and has ultimately been decreed in her favour. From the tenor of the trial Courts order dated 01.08.1995 it is obvious that the trial Court did not specifically restrain the plaintiff -petitioner from selling the property. It is only by interpretation of the construction of the order that the trial Court held the petitioner guilty of contravention of the order of the Court; but otherwise the tenor of the order on its plain and direct meaning, does not leave scope for proceeding against the petitioner under Order 39 Rule 2(A), CPC. The trial Court in the impugned order has interpretatively arraigned the petitioner and has not indicated that the petitioner is held guilty of contravention of a particular specific direction of the Court. The fact of disobedience must be proved to the satisfaction of the Court almost like a criminal Court. The party cannot be held to have willfully disobeyed the order of injunction if the order is capable of more than one interpretation. The Courts below have observed that by selling the property the plaintiff has substantially changed the shape of the property. This observation of the Courts below is based on deduced interpretative meaning of the order dated 01.08.1995 and, as a matter of fact, the trial Court did not specifically restrain the plaintiff from alienating the property by sale etc. 9. In the facts and circumstances of the case, in my opinion, when the trial Court worded the order leaving it capable of more than one interpretation without taking care to specify the Courts directions in the order, it would not be just to arraign the plaintiff for willful disobedience of that part of the order which is not explicitly mentioned in the order and is only deduced by ingenuity unfolding the interpretative meaning of the tenor of the order. The provision under Order 39, Rule 2-A, CPC is certainly not meant to wield authority by law Courts. The intention of the legislation is only to substantially safeguard enforcement of the orders of the Court. The provision under Order 39, Rule 2-A, CPC is certainly not meant to wield authority by law Courts. The intention of the legislation is only to substantially safeguard enforcement of the orders of the Court. In the case in hand, there was no specific order passed by the learned trial Court not to alienate the property by sale etc. Besides, it is also one of the important aspects of the matter that at the time of passing of the interim order when counter-claim was filed, the learned trial Court ought to have ascertained if there was any apprehension of alienation of the property by the plaintiff . The absence of particular direction for restraint with regard to alienation only goes to show that the trial Court had no occasion to go into this aspect of the matter. The plaintiff had registered will in her favour and by decreeing the suit of permanent injunction the plaintiff s title over the suit property stood perfected. 10. In view of the above, the revision petition is allowed. The order passed by the trial Court dated 21.01.1999 as well as order dated 18.09.2001 passed by the lower appellate authority are set aside.