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2010 DIGILAW 666 (ORI)

DIPTI RANJAN SAHOO v. NALINI KUMARI SAHOO

2010-09-22

M.M.DAS

body2010
ORDER M.M. Das, J. - This writ petition has been filed against an order passed in FAO No. 5/22 of 2009/2008 by the learned 1st Addl. District Judge, Puri on 26-2-2010, by which the learned 1st Addl. District Judge, Puri, while allowing the appeal filed by the Plaintiff directed the present Petitioners, who are Defendants in the suit, to vacate the disputed residential house and to remove the articles they have in the same within one month from the date of passing of the said order until the dispute as to the right, title and interest stand determined in the suit i.e. C.S. No. 148 of 2005. Facts giving rise to the appellate order are that the opposite party, who is the mother of the Petitioner No. 1, has filed a suit seeking relief for passing a decree for permanent injunction restraining the present Petitioners from entering into the disputed property, which is a residential house, and a decree for mandatory injunction directing the Defendants (writ Petitioners) to remove their articles from the said house, which has been described in the Schedule 'B' of the plaint. 2. An application under Order 39, Rule 3, CPC along with an application for interim injunction under Order 39, Rules 1 and 2, CPC has been filed by the Petitioner-Plaintiff against the opposite parties-Defendants to hear the injuntion application ex parte, being numbered as I.A. No. 109 of 2005. The learned Civil Judge (Senior Division), Nimapara in the said I.A. No. 109 of 2005 arising out of C.S. No. 148 of 2005 considering the urgency of the matter heard the Petitioner ex parte and passed an ad-interim ex parte order restraining the opposite parties-Defendants (writ Petitioners) from interfering with the peaceful possession of the Petitioner over the suit property till the date of filing of the objection by them in the interim application and issued a show cause notice calling upon them to show cause as to why the ad interim injunction as issued ex parte shall not be made absolute. Thereafter, the Plaintiff complied with the provisions under Order 39, Rule 3(a) and (b), CPC Another interim application under Order 39, Rule 2-A, CPC was filed, being CMA No. 74 of 2006, alleging violation of the order of injunction. Thereafter, the Plaintiff complied with the provisions under Order 39, Rule 3(a) and (b), CPC Another interim application under Order 39, Rule 2-A, CPC was filed, being CMA No. 74 of 2006, alleging violation of the order of injunction. The learned trial Court upon hearing the said application, on examination of the witnesses, came to the conclusion that if, at all, it is believed that the opposite parties were staying with the Petitioner in the said house much prior to the alleged occurrence, then it cannot be said that they violated the order of the Court and that no specific order was passed injuncting the opposite parties from entering into the house standing over the suit land for which the order is ambiguous in nature and rejected the said application filed by the Plaintiff. Against the said order, the Plaintiff preferred an appeal being FAO No. 5/22 of 2009/2008, which was disposed of by the impugned judgment passed on 26-2-2010 by the learned 1st Addl. District Judge, Puri. The learned appellate Court, considering the case of the parties and the materials on record came to the conclusion that the ad-interim order of injunction is not ambiguous in nature and that the Court has inherent power u/s 151, CPC to undo the wrong committed by the violators in respect of the injunction order. Accordingly, the appeal was allowed directing the writ Petitioners, who are Defendants, to vacate the disputed residential house and to remove the articles they have in the same within one month from the date of passing of the order. 3. The suit being between the mother in one hand and the son and daughter-in-law on the other, this Court made an attempt to settle the matter amicably by calling upon them to attend the Court personally. However, the parties did not agree with the same and ultimately the matter was taken up for final disposal. 4. Miss. Ratho, learned Counsel for the Petitioners submits that the learned trial Court was correct in holding that the order of injunction is ambiguous and only it was directed that the Defendants, who are writ Petitioners, should not disturb the peaceful possession of the Plaintiff in respect of the disputed residential house and no where in the said order it was indicated that the Defendants are not in possession of the said house. However, considering the materials produced before the learned trial Court, the learned appellate Court has found that as a matter of fact, the writ Petitioners were not in possession of the suit house before passing of the ad interim order. The same is a finding of fact and she being not perversity in the same, this Court is not inclined to interfere with the power under Article 14 of the Constitution. With regard to the question as to whether the inherent power u/s 151, CPC can be exercised in an application under Order 39, Rule 2A, Code of Civil Procedure. by directing the alleged violators (Defendants) to vacate the suit residential house for restoring status quo ante, has been considered by the Supreme Court in the decision in the case of Delhi Development Authority Vs. Skiper Construction Company (P) Ltd. and another. The Supreme Court in the said case, though not, was considering a case specifically under Order 39, Rule 2-A, CPC but examined the doctrine that a contemnor should not be allowed to enjoy or retain the fruits of his contempt. It was observed that in the decision in the case of Mohammad Idris and Another Vs. Rustam Jehangir Babuji and Others, the principle that a contemnor ought not to be permitted to enjoy and/or keep the fruits of his contempt, is well settled. In the case of Mohd. Idris (supra), it was clearly held that undergoing the punishment for contempt does not mean that the Court is not entitled to give appropriate directions for remedying and rectifying the things done in violation and its orders. The Supreme Court also referred to the decision in the case of Clarke v. Chadburn (1985) 1 All ER 211 where the above principle has been applied even in case of violation of orders of injunction issued by the civil Courts. In the case of Clarke v. Chadburn (supra), Sir Robert Megarry V-C observed that those who defy a prohibition ought not to be able to claim that the fruits of their defiance are good and not tainted by the illegality that produced them. The Madras and Calcutta High Courts in the cases of Century Flour Mills Ltd. Vs. S. Suppiah and Others, and Sujit Pal Vs. Prabir Kumar Sun and Others, respectively also took similar views. The Madras and Calcutta High Courts in the cases of Century Flour Mills Ltd. Vs. S. Suppiah and Others, and Sujit Pal Vs. Prabir Kumar Sun and Others, respectively also took similar views. In Century Flour Mills Ltd. v. S. Suppiah (supra), the Full Bench of the Madras High Court held that where an act is done in violation of an order of stay or injunction, it is the duty of the Court, as a policy, to set the wrong right and not allow the perpetuation of the wrongdoing. The inherent power of the Court is not only available in such a case but is bound to be exercised to undo the wrong in the interest of justice. Facts in the case of Sujit Pal (supra) are almost akin to the facts of the present case where the Defendant forcibly dispossessed the Plaintiff in violation of the order of injunction and took possession of the property. The Calcutta High Court in a Division Bench in the said decision directed restoration of possession to the Plaintiff with the aid of police. While directing so, the Court held that no technicality can prevent the Court from doing justice in exercise of its inherent powers. It was further held that the object of Rule 2-A of Order 39 will be fulfilled only where such mandatory direction is given for restoration of possession to the aggrieved party. This was necessary to prevent the abuse of process of law. 5. Inherent power u/s 151, CPC is always exercisable by the Court, in the interest of justice and to prevent the abuse of process of law. Directing restoration of possession or issuing a mandatory order to restore status quo as it existed prior to the order of injunction was passed, by undoing the wrong done by the violators, such order does not in any way run contrary to the provisions of Order 39, Rule 2A, Code of Civil Procedure 6. In view of such position, in examining the facts of the present case, the direction issued by the appellate Court directing the writ Petitioners to vacate the suit house and remove their articles from the same within the stipulated period is legal and justified. Such direction, therefore, should not be interfered with. In view of such position, in examining the facts of the present case, the direction issued by the appellate Court directing the writ Petitioners to vacate the suit house and remove their articles from the same within the stipulated period is legal and justified. Such direction, therefore, should not be interfered with. However, the only clarification necessary in the facts of the present case is that, as the Plaintiff has made a prayer for a decree for mandatory injunction directing the Defendants to remove their articles from the house as enlisted in Schedule 'B' of the plaint, the direction issued by the appellate Court with regard to removing the articles from the house in question will be confined to all the articles, which the writ Petitioners have brought into the house, in violation of the order of injunction, leaving aside the articles mentioned in Schedule 'B' of the plaint, question of removal of which will be adjudicated in the suit. 7. With the aforesaid clarification, the writ petition being devoid of merit is accordingly dismissed. Final Result : Dismissed