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2015 DIGILAW 555 (HP)

Prem Chand v. Karodhan Devi

2015-05-20

RAJIV SHARMA

body2015
Judgment : Justice Rajiv Sharma, J. CMP No. 874 of 2011. 1. The regular second appeal was admitted on 22.4.2009 and the respondents were restrained from raising further construction as per order dated 9.8.2011. The respondents also moved an application for seeking permission to raise the construction vide CMP No. 524 of 2010. It was dismissed on 31.10.2011. The appellants have also moved application being CMP No. 676 of 2011. It was disposed of by this Court on 31.10.2011 in view of the order dated 22.4.2009 and 9.8.2011 in CMP No. 282 of 2009. 2. The case of the applicant/appellant, precisely, is that despite the orders passed by this Court repeatedly, the respondents have raised the construction. They were told not to do so but they have not paid any heed to the requests. The photographs were taken on 20.8.2011, 21.8.2011 and 24.8.2011. The matter was reported to the Panchayat on 27.7.2011. The Panchayat visited the spot on 21.8.2011 and found that the construction was being carried out on the spot. The respondents were informed of the orders of the Court. FIR was also lodged with the police on 2.8.2011. The police visited the spot on 2.8.2011. Hence this application. 3. The application was contested by the respondents. According to them, they have not raised any construction over the suit land. The issues were framed on 14.11.2011. 4. Mr. Rajnish K. Lall, Advocate appearing on behalf of the applicant has vehemently argued that the respondents have willfully disobeyed the orders passed by this Court by raising construction. On the other hand, Mr. G.D.Verma, learned senior Advocate appearing on behalf of the respondents, has argued that his clients have not raised the construction over the suit land. 5. AW-1 Satish Kumar has taken out the print-outs Mark A-1 to A-12. He issued receipt Ext. AW-1/A. 6. AW-2 HC Karam Singh has proved daily diary report dated 20.8.2011. He has visited the spot on 2.8.2011. Volunteered that on 21.8.2011, he has recorded the statements of appellant Prem Chand, Mallu Ram, Relu Ram and Rakesh Kumar vide Ext. AW-2/C to AW-2/F. In his cross-examination, he deposed that no cognizable offence was made out against the respondents except that there was stay order from this Court. 7. AW-3 Kuldeep Singh Patyal, Tehsildar deposed that he alongwith the office Kanungo, Tehsil Bhoranj, Patwar Circle Mundkhar, had visited the spot on 17.3.2012. AW-2/C to AW-2/F. In his cross-examination, he deposed that no cognizable offence was made out against the respondents except that there was stay order from this Court. 7. AW-3 Kuldeep Singh Patyal, Tehsildar deposed that he alongwith the office Kanungo, Tehsil Bhoranj, Patwar Circle Mundkhar, had visited the spot on 17.3.2012. He carried out the demarcation of Kh. No. 1667/1066/1. The notice could not be issued to the parties before spot inspection for want of time as the summons were received by him on 15.3.2012. He was required to appear in the Court as a witness on 20.3.2012. However, appellant Prem Chand and Relu Ram were present on the spot. He proved report Ext. AW-3/A. He denied the suggestion that musabi was not available on the spot though there is no mention about the same in the report Ext. AW-3/A. 8. AW-4 Prem Chand deposed that the disputed land is comprised in Kh. No. 1667/1066 measuring 4 kanal 14 marlas and Kh. No. 1067, measuring 1 kanal 8 marlas, total land measuring 6 kanal 2 marlas. The respondents in the month of July, 2011, despite stay orders, cut and removed a ‘Tuni’ tree from the disputed land, besides stacking construction material therein and thereafter started digging pits and raising construction in the disputed land in Kh. No. 1667/1066. He took the photographs on his mobile phone. He informed the police. When the respondents did not stop raising construction, he moved an application No. 676 of 2011 before this Court. He also moved an application before the Gram Panchayat Mundkhar and accordingly Pradhan, Up-Pradhan, Ward Panch and Halqua Nambardar visited the spot. In his cross- examination, he deposed that the respondents have raised construction of house of dimension 38 ft. x 38 ft, besides cowshed measuring 12 ft x 9 ft and digging a pit for construction of a latrine. Sh. K.S. Patyal, Tehsildar Bhoranj had visited the spot to demarcate the land in dispute. 9. AW-5 Lekh Raj, deposed that he was Up-Pradhan of Mundkhar Panchayat since January 2011. The appellant moved an application Ext. AW-4/C to the Panchayat. He alongwith the Pradhan and Ward Panch visited the spot on 21.8.2011. The appellant was present on the spot. Only Relu Ram was present on behalf of the respondents. Rakesh Kumar and family members of Relu Ram were raising construction over the suit land. 10. The appellant moved an application Ext. AW-4/C to the Panchayat. He alongwith the Pradhan and Ward Panch visited the spot on 21.8.2011. The appellant was present on the spot. Only Relu Ram was present on behalf of the respondents. Rakesh Kumar and family members of Relu Ram were raising construction over the suit land. 10. RW-1 Rakesh Kumar deposed that he has not raised any construction over Kh. No. 1066/1067 after 9.8.2011. He admitted that the applicant has lodged complaint regarding construction with the Panchayat. They have not disobeyed the orders of the Hon’ble Court dated 9.8.2011. 11. Similarly, RW-2 Relu Ram stated that neither he nor Rakesh Kumar and his family members have raised any construction after 9.8.2011 over the suit land. He admitted that applicant has lodged the complaint in the Panchayat. 12. What emerges after the appraisal of the statements recorded hereinabove, is that the respondents have raised construction over the suit land despite various orders passed by this Court. AW-1 Satish Kumar has proved the photographs. AW-2 HC Karam Singh has proved DDR vide Ext. AW-1/A, whereby the complaint was lodged with the police. AW-3 Sh. Kuldeep Singh Patyal, Tehsildar has proved report Ext. AW-3/A. AW-4-appellant has categorically deposed that despite the orders of the Court brought to the notice of the respondents, they have not stopped the construction. He has lodged the report with the police. He has lodged report with the Panchayat. Pradhan, Up Pradhan, Ward Panch and Nambardar had visited the spot and asked the respondents not to carry out the construction in violation of the stay order. He denied the suggestion that “Tuni” tree was not cut. AW-5 Lekh Raj visited the spot on 21.8.2011 alongwith Pradhan and Ward Panch and found that Rakesh Kumar and family members of Relu Ram were raising construction in the suit land. 13. RW-1 Rakesh Kumar and RW-2 Relu Ram have made self serving statements that they have not raised construction over the suit land. The applicant has convincingly proved that the respondents have raised construction over the suit land despite orders issued by this Court from time to time, more particularly, order dated 9.8.2011. 14. 13. RW-1 Rakesh Kumar and RW-2 Relu Ram have made self serving statements that they have not raised construction over the suit land. The applicant has convincingly proved that the respondents have raised construction over the suit land despite orders issued by this Court from time to time, more particularly, order dated 9.8.2011. 14. In Kanakku Kumara Pillai Thanu Pillai vs. Mathevan, Mathevan of Aravamkadu Karakkattu Madathu Veedu and another, AIR 1963 Kerala 179, the Full Bench of Kerala High Court has held that it is the duty of a person bound by an order of injunction to obey its command. Disobedience will provide the foundation for a punishment, not the basis for a claim. The Full Bench has held as under:- “9. It is the duty of a person bound by an order of injunction to obey its command. Disobedience will provide the foundation for a punishment; not the basis for a claim.” 15. In Century Flour Mills Ltd. vs. S. Suppiah and others, AIR 1975 Madras 270, the Full Bench of Madras High Court has held that where in violation of a stay order or injunction against a party, something has been done in disobedience, it will be the duty of the court as a policy to set the wrong right and not allow the perpetuation of the wrong doing. The inherent power will not only be available in such a case, but it is bound to be exercised in that manner in the interest of justice. 16. In Giridhari Dhri vs. Golaka Chandra Nayak, AIR 1987 Orissa 171, the Division Bench of Orissa High Court has held that the applicant need not give list of properties to be attached or indicate his willingness to pay expenses of sending offender to civil prison at the stage of making application. The Division Bench has held as under:- “4. At the time of making the report of disobedience of the order of injunction, the complainant himself is unaware as to whether the court will order for attachment of the properties of the offender or commit him to civil prison. Two disciplinary actions have been provided under Order 39, Rule 2-A of the Code, namely, attachment of property or detention. The two modes of punishment are the alternatives which can be awarded to be contemner according to the discretion of the court. Two disciplinary actions have been provided under Order 39, Rule 2-A of the Code, namely, attachment of property or detention. The two modes of punishment are the alternatives which can be awarded to be contemner according to the discretion of the court. At the stage of making of the application, therefore, it is very difficult for the complainant to know the mind of the court as to what kind of punishment would be awarded to the contemner. The attachment of the property of the guilty person is effected to ensure award of compensation whereas his detention intends to check the infringement and disobedience as such and punishes the person committing the disobedience or breach of the order of injunction. In that view of the matter and in the absence of any provision or any requirement under the relevant rule of Order 39, we find it difficult with due reference to subscribe to the view of the learned Judge in the reported case. Learned counsel for the appellant could neither point out any material to support the above view, nor could we discover any provision or authority to come to this conclusion. In our considered opinion, it is not necessary for the person making a complaint of disobedience either to give a list of properties that he wants to be attached or to indicate his willingness to bear the cost of sending the offender to the civil prison at the stage of making of the application itself. This question, if at all, may arise or be considered when the court dealing with the matter exercises its discretion to award either of the punishments. It must therefore be held that the view of the learned single Judge is unsustainable in law and the said observations are accordingly overruled.” 17. In Ashwani Kumar and others vs. Lachi Ram and others, AIR 2003 Himachal Pradesh 28, this Court has held that where a party to the suit land, in violation of the interim injunction, brought about any change in the position, situation and status of the property in suit, the Court in exercise of its inherent powers under Section 151 of the CPC can and must set the wrong right. This Court has held as under:- “21. This Court has held as under:- “21. In view of the above settled position in law, where a party to the suit had in violation of the interim injunction, brought about any change in the position, situation and status of the property in suit, the Court in exercise of its inherent powers under Section 115 of the Code of Civil Procedure, can and must set the wrong right.” 18. In Rameshchandra Mohanlal vs. Chandaben and others, AIR 2005 Gujarat 130, learned Single Judge of Gujarat High Court has held that when the construction is raised in breach of injunction order, the order for removal of objectionable construction is must notwithstanding civil imprisonment for breach. It has been held as follows: “4. Normally, civil imprisonment is awarded only in such cases where the other alternative like the one which is available in this case, of removing of objectionable construction is not available. In the present case, from the fact of opponents preferring to undergo civil imprisonment than to removing the construction shows the 'mental set up' of the opponents. Then, in such cases in the considered opinion of this Court removal of the objectionable construction is must, to restore the respect to the orders of the Court. Not ordering removal of the objectionable construction will send wrong signals to the society at large and is likely to add a tendency of disobeying the orders of the Court and to prefer to undergo civil imprisonment for which maximum period is of three months. Putting up a construction in breach of an order of injunction is a continuous wrong and remedy for such wrong is removal of the construction. The defaulter cannot be allowed to enjoy such construction. If this is allowed then it may lead to a very dangerous situation. To avoid that the Court is required to order removal of objectionable construction. This Court, after giving anxious thought to the matter has come to the conclusion that ordering of removal of construction is warranted in the facts and circumstances of the case to restore the respect to the orders of the Court.” 19. Accordingly, in view of the observations and analysis made hereinabove, the application is allowed. This Court, after giving anxious thought to the matter has come to the conclusion that ordering of removal of construction is warranted in the facts and circumstances of the case to restore the respect to the orders of the Court.” 19. Accordingly, in view of the observations and analysis made hereinabove, the application is allowed. Consequently, the District Collector Hamirpur, is directed to attach the property of the respondents within a period of one week and the respondents are directed to demolish the fresh/new construction raised by them deliberately during the interim orders passed by this Court, within a period of three weeks, failing which, they are ordered to be detained in civil imprisonment, at the first instance, for a period of one month. There shall, however, be no order as to costs.