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Andhra High Court · body

2012 DIGILAW 821 (AP)

R. Madan Mohan Guptha v. Mohd. Sharfuddin

2012-09-06

L.NARASIMHA REDDY

body2012
Judgment The 1st respondent filed O.S.No.39 of 2011 before the A.P. State Wakf Tribunal, Hyderabad, against the petitioner and respondents 2 and 3, for the relief of perpetual injunction, in respect of Acs.6.26 guntas of land in survey No.599 of Mankhal Village, Maheshwaram Mandal, Nalgonda District. It was alleged that the property belongs to a wakf and that the 1st respondent is an interested person. It was alleged that the petitioner herein, who was a Sarpanch of the village, has made attempts to occupy the land, as part of his real estate activity. I.A.No.159 of 2011 was filed under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure (CPC), for temporary injunction. The Tribunal issued notices to the petitioner and respondents 2 and 3. The petitioner filed a counter, opposing the I.A. He pleaded that the land in question does not belong to wakf, and on the other hand, it belong to Government. It is also stated that way back in the year 1985, the land was divided into plots and pattas were distributed to as many as 130 persons. A godown was also said to have been constructed with the aid of the World Bank, in the year 1985. The Tribunal passed an order of ad interim injunction on 17.05.2011. The 1st respondent filed I.A.No.324 of 2011 under Rule 2-A of Order XXXIX CPC, stating that the petitioner violated the order of ad interim injunction and brought into existence, construction over the suit schedule property. The Tribunal issued notice and the petitioner filed a counter denying the allegations. Through its order, dated 07.12.2011, the Tribunal directed the dismantling of the structure of the community hall, on the ground that the construction was made in contravention of the orders of temporary injunction. The petitioner challenges the said order. Heard Sri D. Vijaya Chandra Reddy, learned counsel for the petitioner, and Sri M.T. Ghori, learned counsel for the 1st respondent. The revision arises out of an order passed in an application filed under Rule 2-A of Order XXXIX of C.P.C. Whenever an order of temporary injunction is passed, the respondent, in such an application, is under obligation to obey the same. This is so, particularly when the order is passed after hearing both the parties. The remedy provided for in Rule 2-A of Order XXXIX C.P.C., is extraordinary in nature. This is so, particularly when the order is passed after hearing both the parties. The remedy provided for in Rule 2-A of Order XXXIX C.P.C., is extraordinary in nature. If it is established that the injunction granted under Rules 1 and 2 of Order XXXIX C.P.C., is disobeyed, The Court may direct attachment of the property of the person, held guilty and may also order such person to be detained in the civil prison, for a term not exceeding three months. When such drastic consequences are provided for, the findings, as to violation, must be based upon unimpeachable evidence. In the instant case, the temporary injunction was in relation to an item of immovable property of Acs.6.26 guntas. A specific plea was raised by the petitioner that the land was divided into plots of 121 square yards, each, and the Government distributed the same to the beneficiaries. Reference was also made to a godown, constructed way back in the year 1985. When this is the nature of plea, the order of temporary injunction has its own limitation, from the point of view of its implementation or enforceability. Assuming that there existed some vacant land, apart from the structures that were already there, and the allegation is that the petitioner made any construction over the suit land, it was for the 1st respondent to prove the acts of violation, through valid evidence. The record discloses that not a single person was examined as a witness, much less any documentary evidence was placed. Only two photographs were filed and the Presiding Officer initialled them as Exs.X.1 and X.2. The Tribunal is a civil Court for all practical purposes and what was before it was a civil suit simplicitor. Any finding, which is to result in drastic consequences provided for under Rule 2-A of Order XXXIX C.P.C., must be on the basis of oral and documentary evidence. Even otherwise, Rule 2-A of Order XXXIX C.P.C., provides for two consequences, viz., the attachment of property of the person found to have violated the order of injunction, and his being detained in civil prison. It does not provide for any other measure or alternative. The Court does not have any liberty or discretion to choose something in between, or to order something, which is not provided for. The Tribunal, however, has chosen to direct the demolition of a structure. It does not provide for any other measure or alternative. The Court does not have any liberty or discretion to choose something in between, or to order something, which is not provided for. The Tribunal, however, has chosen to direct the demolition of a structure. Such a course does not at all fit into Rule 2-A. Any provision of law, relating to procedure, particularly the one that provides for punishment, must be construed strictly. When the provision contemplates a specific measure, the Court cannot take recourse to a different one, by invoking that provision. Hence, the C.R.P. is allowed and the order under revision is set aside. The Tribunal shall endeavour to decide the suit itself at the earliest. The miscellaneous petition filed in this civil revision petition shall also stand disposed of. There shall be no order as to costs.