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2014 DIGILAW 1083 (HP)

Shiv Ram v. Tara Dutt

2014-08-14

TARLOK SINGH CHAUHAN

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Judgment : Tarlok Singh Chauhan, Judge, (Oral). The decree holder/petitioner has questioned the order dated 21.05.2014 passed by the learned Civil Judge(Senior Division), Solan, in Application No.34/10 of 2010 titled Shiv Ram versus Tara Dutt whereby the execution application under Order 21 Rule 32 of the Code of Civil Procedure(for short ‘Code’) filed by the petitioner has been ordered to be dismissed. 2. Undisputedly, a judgment and decree came to be passed in favour of the petitioner whereby his claim for permanent prohibitory injunction against the respondent was decreed and the respondent was restrained from causing any interference in the suit land in any manner. However, the rest of the claim in the suit of the petitioner for mandatory injunction was dismissed. On the other hand, the counter-claim raised by the respondent was also dismissed as would be apparent from the judgment and decree dated 06.08.2008 passed in Civil Suit No.3/1 of 2005 titled Shiv Ram versus Tara Dutt. 3. The petitioner preferred an application under Order 21 Rule 32 of the Code, the relevant portion whereof reads as follows:- “4. That the respondent after passing the judgment and decree by this Hon’ble Court in clear violation of the same decree has started again interference in the suit land and started claiming possession over the suit land. The applicant has requested the respondent to adhere the judgment and decree passed by the Hon’ble Court but the respondent is still interfering in the suit land and is trying to occupy suit land and property in clear violation of the judgment and decree. There is repeated violation of the judgment and decree passed by the Hon’ble Court for which the respondent has rendered himself for the punishment and is to be dealt with the provision of law. 5. That the judgment and decree was well within the knowledge of J.D. as the respondent/JD was contesting the case and after passing of the same judgment and decree, applicant has also requested the respondent not to violate the same but the respondent is claiming that house over the suit land belongs to him and he would occupy the same. The same utterance by the respondent is in clear violation of the judgment and decree passed against him, hence, deterrent punishment is to be awarded to him. The same utterance by the respondent is in clear violation of the judgment and decree passed against him, hence, deterrent punishment is to be awarded to him. It is, therefore, prayed that the application may kindly be allowed and the J.D. is to be punished in accordance with the provisions of law for willfully violating the judgment and decree and is to be detained in civil imprisonment for violating and disobeying the judgment and decree dated 06.08.2008 passed in Civil Suit No.3/1 of 2005 in the interest of justice and equity.” 4. Despite such vague arguments, the learned Court below not only put the respondent to notice but thereafter even proceeded to record the evidence and based upon the evidence, this application was dismissed. It is this order which has been challenged by the decree holder/petitioner under Article 227 of the Constitution of India claiming that the order is illegal and not sustainable in the eyes of law. 5. Rule 32 of Order 21 of the Code requires willf ul failure and non-compliance of the decree. Mere non-compliance or disobedience of the decree is not enough and it must be alleged and proved that such disobedience was willful, intentional and deliberate. Some mental element must be there though it may not be the same as mens rea, willful failure obviously means want of bonafide. In other words, the action must be deliberate, moulded by an obstinacy to act or consciously disregard the decree passed by a competent Court. Therefore, willful disobedience is a condition precedent or a sine qua non for the exercise of power under this rule. Though, it may be clarified that the disobedience may either be expressed or even implied which can be proved from the conduct of a party. But, then it is settled law that more stringent the punishment, stricter the rules of construction of pleadings. 6. Though, it may be clarified that the disobedience may either be expressed or even implied which can be proved from the conduct of a party. But, then it is settled law that more stringent the punishment, stricter the rules of construction of pleadings. 6. Coming back to the facts of the case, the learned counsel for the petitioner has vehemently argued that the order passed by the Court below is highly unjust, illegal and deserves to be set aside as it has not taken into consideration the pleadings as well oral and documentary evidence on record, more particularly, the photographs A-A1 to A-A7 and moreover the learned executing Court committed another error by not deciding the application under Order 26 Rule 9 of the Code preferred by the petitioner for demarcating the land and proving the exact encroachment on the spot. 7. I have heard the learned counsel for the parties and gone through the recor ds of the case. At the outset, before I proceed to consider the case on merits, I wonder why the learned trial Court even put the opposite party to notice when the application on the face of it was absolutely vague and did not even disclose material fac ts upon which notice could even be issued. The learned trial Court/executing Court ought to have dismissed this application at the initial stage itself because the application did not even mention the date, place and time much less the other particulars as to when the respondent willfully disobeyed the decree. Not only, the pleadings are lacking, but I find that the petitioner in support of his claim had submitted his evidence by way of affidavit copy whereof has been shown to me by Shri O.C.Sharma, Advocate, in the Court and even in this affidavit, there is not a single whisper about date, time, month and year regarding the alleged disobedience of the decree. 8. The learned counsel for the petitioner would then argue that he had led sufficient evidence to prove his case. I am afraid that such contention cannot be upheld because now it is settled principle of law that evidence adduced beyond the pleadings would not be admissible nor can any evidence be permitted to be adduced which is at variance with the pleadings. I am afraid that such contention cannot be upheld because now it is settled principle of law that evidence adduced beyond the pleadings would not be admissible nor can any evidence be permitted to be adduced which is at variance with the pleadings. The requirement of link foundation in the pleadings has to be considered having regard to the fact that the onus of proof of the allegations is on the petitioner. 9. The learned Court below has painstakingly referred not only to the pleadings but has discussed in detail the evidence of the parties on record and come to firm conclusion that the petitioner had failed to prove the disobedience of the judgment and decree. It was specifically observed that the pleadings were totally deficient and the allegations of disobedience were vague and not specific. The learned Court bellow further concluded and rightly so that whenever pleadings regarding disobedience of judgment and decree are the subject-matter of decision, the Court has to be very careful while appreciating the evidence and the pleadings since personal liberty of a person against whom allegations of disobedience are levelled is at stake. The pleadings have to be specific and the evidence has to be cogent, convincing, trustworthy and reliable. 10. The learned Court below has referred to the rapats Ex.AW1/A and Ex.AW1/B produced by HHC Swaran Singh and after examining the same has returned a finding against the petitioner on the basis of the affidavit filed by him in his evidence as Ex.AW3/A and concluded that the affidavit had been filed after the rapats dated 20.01.2012 and 26.05.2012 respectively wherein there was no mention regarding the particular date on which the respondent had laid the foundation over the suit land or the date on which he had started raising construction. The petitioner had also not stated about the fact when he approached the police and when he lodged the complaint. The photographs Ex.A1 to A7, Ex. AX to AZ and Ex.AZ1 to AZ7 have been discussed in detail and it has been held that the construction of the respondent was available on the spot even on the date of the suit and the same had not been ordered to be demolished by the Court since no decree for mandatory injunction had been passed. 11. AX to AZ and Ex.AZ1 to AZ7 have been discussed in detail and it has been held that the construction of the respondent was available on the spot even on the date of the suit and the same had not been ordered to be demolished by the Court since no decree for mandatory injunction had been passed. 11. The learned Court below has accorded sound reasons for dismissing the application preferred by the petitioner under Order 21 Rule 32 of the Code and I find no infirmity, irregularity or illegality in the said order. 12. Accordingly, this petition being devoid of any merit is dismissed as such leaving the parties to bear their own costs.