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2015 DIGILAW 1083 (RAJ)

Saroj v. Radhe Shyam Gupta

2015-05-18

J.K.RANKA

body2015
JUDGMENT 1. - Instant Revision Petition is directed against order dated 16/09/2003 passed by the Additional District Judge No.1, Jaipur in Civil Misc. Appeal no.88/2001 partly confirming the order dated 06/11/2001 passed by the Additional Civil Judge (JD) No.2, Jaipur City, Jaipur in Civil Misc. Application no.777/2001 filed under Order 39, Rule 2A of CPC. 2. The contentious issue between the parties is violation of an interim order dated 31/08/1991 passed by the Trial Court. Feeling aggrieved by the breach of the above dated interim order, the plaintiff-respondent preferred an application under Order 39, Rule 2A of CPC in the Trial Court and the Trial Court after evaluating the documentary evidence as well as the oral evidence led by both the parties, concluded that the defendant-petitioner herein had violated the interim order of the injunction dated 31/08/1991 and thus, vide order dated 06/11/2001 directed the petitioner herein to remove the construction made after passing of the interim order within a period of one month, failing therewith to attach the disputed property of the defendant-petitioner and commit her to civil prison for three months. 3. This order was assailed by the defendant-petitioner by way of Civil Misc. Appeal No.88/2001 and the ADJ concurring with the view taken by the Trial Court also concluded that the defendant-petitioner herein had violated the interim order but was of the view that under Order 39, Rule 2A of CPC, the Court was not entitled to order demolishing of the constructions made in defiance of the interim injunction order but could only direct attachment of the property and commit a wrong doer to civil prison and based on such view, the Appellate Court vide order dated 16/09/2003 partly allowed the appeal preferred by the defendant-petitioner herein, and set aside the order of demolition passed by the Trial Court but sustained the order of attachment of property as well as commitment of the defendant-petitioner herein to civil prison. 4. Being dissatisfied with the order of the Appellate court, the defendant-petitioner has preferred the instant Revision Petition. An affidavit of the defendant-petitioner along with the photographs, depicting the earlier state and the position after demolition has also been submitted on 22/10/2013 by the defendant-petitioner and a counter affidavit asserting that only partial demolition has been carried out by the defendant-petitioner, has been submitted by the respondent No.1-plaintiff on 24/10/2013 along with photographs depicting the existing state of construction. 5. Mr. A.K. Bhandari, Sr. Counsel for the defendant-petitioner contended that no construction was made by the defendant-petitioner on or after the day when the Trial Court restrained/maintained status-quo and whatever construction was made, it was prior to the said injunction order. He further contended that in view of the subsequent demolition of the construction on the wall by the defendant-petitioner, the order of attachment and commitment to civil prison passed by the Appellate Court may be quashed and set aside. He further submits that the petitioner is an old aged lady of about 75 years now and has tendered unconditional apology and in such facts and circumstances of the instant case may be allowed. Mr. A.K. Bhandari, Sr. Counsel for the defendant-petitioner relied upon the judgment rendered by this Court in the case of Bindu Khan v. Samee Khan 1999 (1) WLC 518 and the judgment delivered by Punjab and Haryana High Court in the case of Rachpal Singh v. Gurdarshan Singh AIR 1985 Punjab and Haryana 299. 6. Per-contra, Counsel for the respondent-plaintiff vehemently submits that still the defendant-petitioner has only partially complied with the injunction order and porch, staircase and a room apart from the garage still exists in the set back area and hence the defendant-petitioner deserves no sympathy. He contended that the defendant-petitioner had continued to raise construction despite of the order passed by the Trial Court and the Court Commissioner also much later when visited, had expressed his opinion that the construction was continuously being carried out. He further contended that both the Courts below have found about construction being carried after injunction order and it is a finding of fact and this Court is not required to interfere in the finding of fact. He relied upon the judgments rendered by the Hon'ble Supreme Court in the case of Tayabbhai M. Bagasarwalla and another v. Hind Rubber Industries Pvt. Ltd reported in AIR 1997 SC 1240 ; The Municipal Corporation of Delhi v. Suresh Chandra Jaipuria and another AIR 1976 SC 2621 & The Managing Director (MIG) Hindustan Aeronautis Ltd. Balanagar Hyderabad and another v. Ajit Prasad Tarway, Manager (Purchase and Stores) Hindustan Aeronautics Ltd. Balanaga, Hyderbad AIR 1973 SC 76 . 7. Heard the counsel for the parties and carefully perused the material available on record. 8. 7. Heard the counsel for the parties and carefully perused the material available on record. 8. In Food Corporation of India v. Sukha Deo Prasad AIR 2009 SC 2330 , the Hon'ble Apex Court held that power under O.39 Rule 2A should be exercised with great caution and responsibility. 9. In Heinz India Private Ltd and Anr. v. Glazo Smithkline Consumer Healthcare Ltd and Ors. AIR 2008 (NOC) 1228 (Cal.) , it was opined that Order 39, Rule 2A was inserted in the code only to arm the Court to compel someone to implement the order of Civil Court passed in an interlocutory application under Order 39. The Court was of the further opinion that there was no question of considering the issue of 'dignity and majesty' of the Court as a focal point of adjudicative process in such type of application, which albeit is available for decision under the Contempt of Courts Act. The Court further clarified that:- "A. Under the Contempt of Courts Act it appears that u/S. 12 of the said Act, the word "imprisonment" has been used, whereas, under sub-rule (1). R.2-A, the word "detention" has been used under the contingency as mentioned in the respective statutes. The word "imprisonment" is not synonymous with the word "detention". The word "imprisonment" as per the meaning of Black's Law Dictionary, 8th Edition by Bryan A. Garner, Editor-in-Chief is "the act of confining a person, specially in a prison." whereas the meaning of the word "detention" is "the act or fact of holding a person in custody." From the very nature of the word as used, namely, "detention" in the Code and "imprisonment" in the Contempt of Courts Act, it can be said that the nature of confinement is not identical and the word "imprisonment" though is conceived with the ingredients of "detention" but the word "detention" is not conceived with ingredients of "imprisonment." As for example, the investigative "detention" means "the holding of a suspect without formal arrest during the investigation of the suspects participation in a crime. The order of detention under the said provision of Order 39, Rule 2A is only for the purpose of enforcing the injunction order in view of the reasoning that under the statue there is a rider that the detention period would be not exceeding three months, unless in the meantime Court directs release. The order of detention under the said provision of Order 39, Rule 2A is only for the purpose of enforcing the injunction order in view of the reasoning that under the statue there is a rider that the detention period would be not exceeding three months, unless in the meantime Court directs release. The word "unless in the meantime the Court directs his release" is with a purpose to lift the detention order, as and when the breach to be rectified." 10. Both the Courts have concurred with the factual aspect that construction have been made by the defendant-petitioner in defiance of the injunction order. There is no apparent error in the conclusion concurrently drawn by the Courts below as far as this aspect is concerned. The plaintiff-respondent admits that the defendant-petitioner has demolished partial construction in his counter affidavit. In the light of ratio as laid down by the above judicial decisions and the peculiar facts and circumstances of the instant case, this Court is of the view that interest of justice will be served, if the defendant-petitioner is directed to demolish the rest of the construction i.e. porch, staircase and a room apart from the garage existing in the set back area and as asserted in the counter affidavit dated 24/10/2013 of the respondent-plaintiff, within a fixed time frame and the order of attachment and commitment to civil prison be set aside. 11. Hence, the revision petition is partly allowed. The order of the attachment and commitment to civil prison passed by the Appellate Court is quashed and set aside but the defendant-petitioner is directed to demolish the porch, staircase and a room apart from the garage existing in the set back area and as asserted in the counter affidavit dated 24/10/2013 of the respondent-plaintiff within a period of 45 days from the receipt of certified copy of this order at its own cost failing which the respondent-plaintiff will be at liberty to approach this court for appropriate order. It is also noticed that this Court on 14/10/2003 stayed operation of the order of Courts below subject to the condition that the defendant-petitioner will deposit Rs. 5,000/- with the Registrar Administration of this Court. Accordingly, the said amount of Rs. It is also noticed that this Court on 14/10/2003 stayed operation of the order of Courts below subject to the condition that the defendant-petitioner will deposit Rs. 5,000/- with the Registrar Administration of this Court. Accordingly, the said amount of Rs. 5,000/- plus interest accrued thereon which is lying in fixed deposit receipt be got matured and encashed by the Registrar Administration, with accrued interest till now and an account payee Demand Draft be made in the name of respondent and the same be handed over to the counsel for the respondent as cost of the litigation.Revision partly allowed. *******