Suraj Roy Vs. Leela Nath and ors. - Court Judgment

Excerpt:
- - thus, although the breach of injuction complained about, which is a matter of repair of the old house, is not very serious in nature, but the motive behind it not being candid, the petitioner herein is guilty of violation and disobedience of the injunction order issued by the court and consequently directed for lodging the petitioner in the civil prison for 15 days and the respondents herein were directed to bear all the costs of imprisonment. breach of injunction complained about is the act on the part of the defendant-petitioner of repairs of the old superstructure standing on the suit land and not the construction of the new house, as the findings goes by two courts below. if the breach of the order was not with the intention to defy the authority of the court and it was construction in good faith, the party is not liable to be punished under order 39, rule 2(3) cpc. p.p. naolekar, c.j. 1. heard mr. n. choudhary, learned counsel for the petitioner and mr. n.h. majarbhuyan, for the respondents.2. the respondents herein have filed a suit for a decree for declaration of their right, title and interest and possession of the schedule-i land and for declaration that sri surjya roy, petitioner herein, is a trespasser over the suit land. an application for ad interim injunction was also filed. the trial court by its order dated 4.8.98 has passed an order of temporary injunction in the terms, which has been quoted in paragraph 6 of the lower appellate court's judgment - 'restraining the o.p. no. 1 from transferring the suit land and from changing the topography of the suit land and the suit house'. later on, an application was filed by the respondents herein before the trial court under order 39, rule 2a cpc complaining about the breach of injunction. it is alleged in the petition that the petitioner herein has violated the injunction order by cutting bamboo from the bamboo bushes situated over the suit land and constructed a kachha house with bamboo structure on the northern side of the suit land thereby changing the nature and feature of the suit land giving rise to multiplicity of proceedings, causing irreparable loss to the plaintiff-respondents. notice was issued to the defendant petitioner and the petitioner submitted his objection contending, inter alia, that he is holding the land in the capacity of tenant of the plaintiff respondent and all the houses with bamboo structure required to be repaired in the winter season in order to save the house from impending storm. accordingly repairs have been made of the house already standing on the land and there was no construction of a new house. it is only the old house, which was repaired, and thus he has not violated the order of injuction. the court has appointed the commissioner for local inspection. the commissioner submitted his report. after considering the entire evidence, the trial court recorded its finding that the petitioner has made repair of the house by cutting bamboos standing on the land, but it was done with the intention to substantiate his claim of tenancy right of the suit property. thus, although the breach of injuction complained about, which is a matter of repair of the old house, is not very serious in nature, but the motive behind it not being candid, the petitioner herein is guilty of violation and disobedience of the injunction order issued by the court and consequently directed for lodging the petitioner in the civil prison for 15 days and the respondents herein were directed to bear all the costs of imprisonment.3. aggrieved by the order passed by the trial court, an appeal was preferred by the petitioner. the appellate court has also agreed with the finding arrived at by the trial court that the petitioner has not constructed a new house on the suit land, but has only made repairs of the old house by remodelling the old-roofed bamboo house in two-roofed bamboo house which amounts to breach of injunction granted by the trial court and confirmed the order of the trial court of civil imprisonment. thus, the appellate court has reached to the conclusion that repairs of the old structure tantamount to change of the nature and feature of the house standing on the suit land and on this finding confirmed the imposition of punishment of civil imprisonment. against the said order of the appellate court, the present revision petition is filed.4. the matter of consideration of breach of injunction and the powers, which are to be exercised by the court under order 39, rule 2a, cpc, is not for the purpose of punishing a person who disobeyed the injunction order, but to enforce the order. therefore, it is necessary for the court, before imposition of punishment, to find whether the order of injunction was unambiguous and is not reasonably capable of more than one meaning and that the party proceeded against, in fact, did intended to disobey the order of the court and had not conducted himself in accordance with his interpretation of the order, which is reasonably possible. from the order of injunction issued by the court two things are clear. the defendant-petitioner had been restrained by the court from alienating the suit land and to change the nature and topography of the suit land and house. breach of injunction complained about is the act on the part of the defendant-petitioner of repairs of the old superstructure standing on the suit land and not the construction of the new house, as the findings goes by two courts below. the question is whether the injunction order issued by the court could be interpreted to mean, not even to make repairs of the old structures by the petitioner. if plain reading of the order restrains repair to be made by the petitioner, it can certainly be a breach of injunction. on the other hand, since repairs of the old superstructure standing on the land is not specifically restrained by the injunction order can it be included in the order by virtue of restrain order prohibiting the petitioner from changing the topography of the suit land. the order of restrain prohibiting change of topography can not be read to direct restrain even of repairs of the old house.5. in sheobrich singh v. basgit singh and ors. reported in air 1957 patna 73, the division bench of the patna high court has held that the order 39, rule 2(3) cpc is of penal character as the person found guilty of breach of the order is liable to imprisonment. in the circumstances, it is necessary to record that the breach of the order is made with the intention to defy the authority of the court issuing the injunction. if the breach of the order was not with the intention to defy the authority of the court and it was construction in good faith, the party is not liable to be punished under order 39, rule 2(3) cpc.6. in joshi girjadharji v. rao sanwal das shahpuri and ors. reported in air 1958 allahabad 639, it was held that the persons disobeying an injunction should not suffer imprisonment on mere suspicion. there must be positive proof of the fact that he deliberately disobeyed an injunction before a court should deprive him of his property or send him to imprisonment.7. in yumlembam hangu singh and ors. v. smti satkpam ningol khumbongmayum ongbi radhamani devi and ors. reported in (1983) 2 glr 174, this court has held that allegation of disobedience of injunction order is to be established not less stringently than in a criminal case.8. for the punishment to be imposed for breach of injunction the party who complained of the breach is to establish that the order of injunction issued by the court is not open for two interpretation and is unambiguous and the action complained about is not bona fide in good faith. in the present case, as the finding goes, the petitioner has only made repairs of the old house and this was made with the intention to protect the house from the impending storm, which usually occurs in the state. the injunction order does hot specifically prohibit the petitioner-defendant to carry out the repairs for maintaining the house in proper stature. if the injunction order issued by the court is construed strictly, then it will go to the extent that the person living there would not be permitted to even put a nail on the wall. to me the order of injunction cannot be said to prohibit the repairs to be made in the house without altering the superstructure. in view of the aforesaid, the courts below have committed an error in holding the petitioner guilty of breach of injunction.9. the revision is allowed and the orders of the courts below are set aside. however, in the circumstances of the case, there shall be no order as to costs.

Judgment:

P.P. Naolekar, C.J.

1. Heard Mr. N. Choudhary, learned counsel for the petitioner and Mr. N.H. Majarbhuyan, for the respondents.

2. The respondents herein have filed a suit for a decree for declaration of their right, title and interest and possession of the Schedule-I land and for declaration that Sri Surjya Roy, petitioner herein, is a trespasser over the suit land. An application for ad interim injunction was also filed. The trial court by its order dated 4.8.98 has passed an order of temporary injunction in the terms, which has been quoted in paragraph 6 of the lower appellate court's judgment - 'restraining the O.P. No. 1 from transferring the suit land and from changing the topography of the suit land and the suit house'. Later on, an application was filed by the respondents herein before the trial court under Order 39, Rule 2A CPC complaining about the breach of injunction. It is alleged in the petition that the petitioner herein has violated the injunction order by cutting bamboo from the bamboo bushes situated over the suit land and constructed a kachha house with bamboo structure on the northern side of the suit land thereby changing the nature and feature of the suit land giving rise to multiplicity of proceedings, causing irreparable loss to the plaintiff-respondents. Notice was issued to the defendant petitioner and the petitioner submitted his objection contending, Inter alia, that he is holding the land in the capacity of tenant of the plaintiff respondent and all the houses with bamboo structure required to be repaired in the winter season in order to save the house from impending storm. Accordingly repairs have been made of the house already standing on the land and there was no construction of a new house. It is only the old house, which was repaired, and thus he has not violated the order of injuction. The Court has appointed the Commissioner for local inspection. The commissioner submitted his report. After considering the entire evidence, the trial court recorded its finding that the petitioner has made repair of the house by cutting bamboos standing on the land, but it was done with the intention to substantiate his claim of tenancy right of the suit property. Thus, although the breach of injuction complained about, which is a matter of repair of the old house, is not very serious in nature, but the motive behind it not being candid, the petitioner herein is guilty of violation and disobedience of the injunction order issued by the court and consequently directed for lodging the petitioner in the civil prison for 15 days and the respondents herein were directed to bear all the costs of imprisonment.

3. Aggrieved by the order passed by the trial court, an appeal was preferred by the petitioner. The appellate court has also agreed with the finding arrived at by the trial court that the petitioner has not constructed a new house on the suit land, but has only made repairs of the old house by remodelling the old-roofed bamboo house in two-roofed bamboo house which amounts to breach of injunction granted by the trial court and confirmed the order of the trial court of civil imprisonment. Thus, the appellate court has reached to the conclusion that repairs of the old structure tantamount to change of the nature and feature of the house standing on the suit land and on this finding confirmed the imposition of punishment of civil imprisonment. Against the said order of the appellate court, the present revision petition is filed.

4. The matter of consideration of breach of injunction and the powers, which are to be exercised by the court under Order 39, Rule 2A, CPC, is not for the purpose of punishing a person who disobeyed the injunction order, but to enforce the order. Therefore, it is necessary for the court, before imposition of punishment, to find whether the order of injunction was unambiguous and is not reasonably capable of more than one meaning and that the party proceeded against, in fact, did intended to disobey the order of the court and had not conducted himself in accordance with his interpretation of the order, which is reasonably possible. From the order of injunction issued by the court two things are clear. The defendant-petitioner had been restrained by the court from alienating the suit land and to change the nature and topography of the suit land and house. Breach of injunction complained about is the act on the part of the defendant-petitioner of repairs of the old superstructure standing on the suit land and not the construction of the new house, as the findings goes by two courts below. The question is whether the injunction order issued by the court could be interpreted to mean, not even to make repairs of the old structures by the petitioner. If plain reading of the order restrains repair to be made by the petitioner, it can certainly be a breach of injunction. On the other hand, since repairs of the old superstructure standing on the land is not specifically restrained by the injunction order can it be included in the order by virtue of restrain order prohibiting the petitioner from changing the topography of the suit land. The order of restrain prohibiting change of topography can not be read to direct restrain even of repairs of the old house.

5. In Sheobrich Singh v. Basgit Singh and Ors. reported in AIR 1957 Patna 73, the Division Bench of the Patna High Court has held that the Order 39, Rule 2(3) CPC is of penal character as the person found guilty of breach of the order is liable to imprisonment. In the circumstances, it is necessary to record that the breach of the order is made with the intention to defy the authority of the Court issuing the injunction. If the breach of the order was not with the intention to defy the authority of the court and it was construction in good faith, the party is not liable to be punished under Order 39, Rule 2(3) CPC.

6. In Joshi Girjadharji v. Rao Sanwal Das Shahpuri and Ors. reported in AIR 1958 Allahabad 639, it was held that the persons disobeying an injunction should not suffer imprisonment on mere suspicion. There must be positive proof of the fact that he deliberately disobeyed an injunction before a court should deprive him of his property or send him to imprisonment.

7. In Yumlembam Hangu Singh and Ors. v. Smti Satkpam Ningol Khumbongmayum Ongbi Radhamani Devi and Ors. reported in (1983) 2 GLR 174, this court has held that allegation of disobedience of Injunction order is to be established not less stringently than in a criminal case.

8. For the punishment to be imposed for breach of injunction the party who complained of the breach is to establish that the order of injunction issued by the Court is not open for two interpretation and is unambiguous and the action complained about is not bona fide in good faith. In the present case, as the finding goes, the petitioner has only made repairs of the old house and this was made with the intention to protect the house from the impending storm, which usually occurs in the State. The injunction order does hot specifically prohibit the petitioner-defendant to carry out the repairs for maintaining the house in proper stature. If the injunction order issued by the Court is construed strictly, then it will go to the extent that the person living there would not be permitted to even put a nail on the wall. To me the order of injunction cannot be said to prohibit the repairs to be made in the house without altering the superstructure. In view of the aforesaid, the courts below have committed an error in holding the petitioner guilty of breach of injunction.

9. The revision is allowed and the orders of the courts below are set aside. However, in the circumstances of the case, there shall be no order as to costs.