THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CIVIL REVISION PETITION Nos.5554 & 5818 of 2006 Dated:- 24th June, 2011 Between:- G.Kamala Rao …Petitioner AND K.Jawahar Reddy and another …Respondents THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR Civil Revision Petition Nos. 5554 and 5818 of 2006 Common Order:- Since the parties in both these revisions are one and the same, subject matter of both the revisions is similar and common arguments have been advanced by both the learned counsel, both these revisions are being disposed of by this common order. C.R.P.No.5554 of 2006 is directed against the order dated 07.08.2006 passed in C.M.A.No.280 of 2005 by the III Additional Chief Judge, City Civil Court, Hyderabad and C.R.P.No.5818 of 2006 is directed against the order dated 07.08.2006 passed in C.M.A.No.302 of 2005 by the III Additional Chief Judge, City Civil Court, Hyderabad. The brief facts of the case are as follows:- The petitioner in these revisions was the owner of the house bearing municipal number 3-4-142/5/A, situated at Barkatpura, Hyderabad. Her house is towards the eastern side of the plot of a total extent of 697 square yards. The petitioner offered to sell 300 square yards of land covered with small house towards western side of their plot, which is facing the public street to the respondents and accordingly, an agreement of sale was entered into between the petitioner and the respondents on 17.04.1997. It is also not in dispute that subsequently, the petitioner executed registered sale deed dated 24.06.1997 vide document No.1861 of 1997 registered with the District Registrar, Hyderabad at Mozamzahi Market. It is also the case of the petitioner that at the time of the sale of 300 square yards of land to the respondents, the petitioner insisted that the respondents should leave set back at least about three metres (10’ width) on the rear side (eastern side) and 1.5 metres to the northern side in the property sold to the respondents and that the respondents have agreed for the same and a negative covenant was specifically set out in the sale deed which is marked as Ex.A.26 to that effect. The respondents, in contravention of the negative covenant and in violation of Municipal Building Rules and provisions of HMC Act regarding set backs, started construction on the land sold to them on 04.10.1997. Then, the petitioner got issued legal notice dated 07.11.1997 in Ex.B.6 to the respondents alleging that she sold the property consisting of one old dwelling house admeasuring 10’ X 12’ in total area of 300 square yards admeasuring 45’ X 60’, i.e., the front portion of her house and that the respondents started construction without leaving proper set backs, i.e., 10 feet on the eastern side and 1.5 metres on the northern side of her house sold to the respondents, which is against the specific negative covenant in the sale deed. It is also alleged that the respondents were raising RCC columns leaving only 6 to 7 feet from the eastern boundary wall and that the same would effect her lawful enjoyment of her property. Then, the respondents filed O.S.No.4610 of 1997 on the file of the II Junior Civil Judge, City Civil Court, Hyderabad, against the Municipal Corporation of Hyderabad (hereinafter referred to as ‘MCH’) seeking injunction restraining the MCH and its officials from interfering with their construction and pulling down or removing the constructions made by them and obtained interim injunction against MCH and its authorities on 25.11.1994. Subsequently, it appears that the respondents have withdrawn the suit filed by them against the MCH. The petitioner herein filed I.A.No.1504 of 1998 and got impleaded herself as the second defendant in the said suit. The respondents challenged the order of the said impleadment of the petitioner herein in C.R.P.No.1886 of 1993 before this Court, but however, the said revision was dismissed by this Court. After impleadment of the petitioner herein as the second respondent in O.S.No.4610 of 1997 on the file of the II Junior Civil Judge, City Civil Court, Hyderabad and when the petitioner herein alleged that the respondents were making construction unauthorizedly without leaving set backs as per the negative covenant, the learned counsel for the respondents therein made a representation to the effect that the respondents would not proceed further with any unauthorised construction and that no construction would be made towards the property of the petitioner. Then the learned II Junior Civil Judge, passed orders in the said O.S. to the effect that the respondents shall not make any construction in the suit premises until further orders. However, the learned Judge observed that except the said modification, the injunction order granted against the MCH authorities shall continue until further orders. The said order was passed on 06.05.1998. Then the petitioner filed O.S.No.5144 of 1997 alleging that the respondents, violating the negative covenant of the agreement of sale dated 17.04.1997, were proceeding with the construction without leaving the set backs of 10’ width on the eastern side and 1.5 metres width towards northern side of the property sold to them and sought the relief of mandatory injunction to pull down the structures raised on the 10 feet width X 4.5’ length on the rear side and 1.5 metres width on the northern side of the respondents house and also sought permanent injunction from making any construction over that area. Along with the suit, she filed I.A.No.1743 of 1997 seeking ad interim injunction restraining the respondents from making further construction in and over the 10 feet set back area on the rear side of the respondents’ house and eastern side to the petitioner’s house and 1.5 metre (5 feet) set back area in the northern side of the respondents’ house. When the said suit came up for consideration, the respondents sought time to file counter. Then the learned VI Junior Civil Judge, City Civil Court, Hyderabad, granting time to the respondents to file counter, ordered the respondents to maintain status quo on 02.01.1998. The respondents filed counter contending that they have paid full consideration and purchased the total extent of 300 square yards from the petitioner and that the alleged negative covenant about the set backs is quite illegal and that there as no such agreement in fact. It is also their contention that their construction is not illegal and not effecting the rights of the petitioner and that the construction is at present more than 15 feet away from the property of the petitioner, which is a single storied. To this counter, the petitioner has also filed a reply. The learned VI Junior Civil Judge, City Civil Court, Hyderabad, after considering the rival contentions, allowed the petition with costs and modified the status quo order passed in favour of the petitioner on 02.01.1998 into the order of injunction. Learned Judge also held that the said negative covenant mentioned in the registered sale deed executed by the petitioner in favour of the respondents is legal, and in consonance with the said negative covenant the respondents are under obligation to made their construction leaving 10 feet on the eastern side and 6 feet on the northern side of the property purchased by them. Thus, the respondents were restrained from making any further construction as per the said orders. Then, the petitioner filed I.A.No.163 of 1998, which was subsequently renumbered as I.A.No.95 of 2005 before the VI Junior Civil Judge, City Civil Court, Hyderabad, praying the Court to punish the respondents for continuing the illegal construction disobeying the status quo order passed on 02.01.1998. She has also filed I.A.No.492 of 1998, which was subsequently renumbered as I.A.No.96 of 2005 before the same Court praying to punish the respondents for disobeying the injunction order dated 02.04.1998 granted in her favour in I.A.No.1743 of 1997 in O.S.No.5144 of 1997. In I.A.No.95 of 2005, the petitioner specifically averred that the respondents started construction leaving only 6 feet at the ground level and about 3 feet at the first floor level on the eastern side and only 3 feet on the ground floor level and about one foot in the first floor on the northern side of the property sold to them. It was also averred that in violation of the status quo order granted on 02.01.1998, the respondents were proceeding with further construction and have laid roof and also raised brick walls on the floors and are still continuing the unauthorised and illegal construction. She has also specifically averred that she got photographs taken on 05.01.1998, 12.01.1998 and on 09.02.1998 of the illegal construction being made by the respondents and her specific case is that those photographs clearly show that the respondents, in utter violation of the status quo order dated 02.01.1998, are proceeding with the construction. She has also filed some of the photographs along with the petition. It was also alleged by the petitioner that when their photographer was taking photos of the illegal construction, the respondents threatened them. In I.A.No.96 of 2005, the petitioner alleged that in gross disobedience of the injunction order dated 02.04.1998 granted in her favour by the Court, the respondents were still continuing their illegal construction even after 02.04.1998. It is also her case that she filed I.A.No.448 of 1998 seeking direction to the Station House Officer, Police Station, Kacheguda, to assist in implementing the orders of the Court and that though a direction was issued to the Station House Officer, Police Station, Kacheguda, said Station House Officer did not comply with the orders of the Court which facilitated the respondents to continue their illegal construction. The respondents filed counter in I.A.No.95 of 2005 and denied the material averments made by the petitioner. Their specific case is that they were directed to maintain status quo in I.A.No.1743 of 1997 till the counter is filed and since they have filed counter on 26.02.1998, the status quo order will not be in force from 26.02.1998. Their specific case is that they were only restrained from making further construction in and over 10 feet set back area on the rear side and towards eastern side of their house and that there is no order restraining them from carrying out the constructions of the entire building. It is also their case that the photographs taken by the petitioners did not disclose about the violation of the status quo order dated 02.01.1998. It is also their case that they are entitled to construct the building and that the petitioner cannot restrain them from making construction as they have paid Rs.16,00,000/- to the petitioner towards the sale consideration of the said property. With reference to the restrictive covenant (negative covenant), their case is that the said covenant is not legal and binding on them. It is also their case that the said covenant was not there in the original agreement of sale and it was subsequently added at the instance of the husband of the petitioner, who is an advocate. With reference to the allegation that they have left only 6’ and 3’ on the first floor level and 3’ and 6’ on the northern side of their property, they contended that the said allegation is false and baseless and that they have left open space within their compound wall as per the sanctioned plan and existing rules of the MCH. It is also their case that there is a distance of about 14 feet 9 inches between the building of the petitioner and their building and that the petitioner is no way adversely affected by the construction. It is also their case that there is no order directing them to stop the construction and that their construction is not an unauthorised construction. It is also alleged that the so called photographs taken by the petitioner are manipulated ones. In I.A.No.96 of 2005, the respondents, in their counter, stated that whatever work was done on the eastern side and northern side of their plot was prior to the status quo and injunction orders passed by the Court. Their specific case is that there is no construction on the northern and eastern side of the house and that they have not violated the orders of the Court. The petitioner has also filed reply to both the counters in both the I.A.s., i.e., I.A.Nos.95 and 96 of 2005 contending that the respondents were making illegal construction violating the orders of the Court and also violating the existing building rules stipulated by MCH. Her specific case is that the status quo order dated 02.01.1998 was not vacated but instead it was modified into the injunction order on 02.04.1998. Common evidence was let in, in both the I.As. On behalf of the petitioner, P.Ws.1 to 3 were examined and Exs.A.1 to A.57 were marked. On behalf of the respondents, the first respondent himself was examined as R.W.1 and no documentary evidence was marked. Exs.C.1 to C.9 were marked through the Advocate Commissioner. I.A.No.95 of 2005 was dismissed by the learned IV Junior Civil Judge, City Civil Courts, Hyderabad, by his order dated 02.11.2005. As far as I.A.No.96 of 2005 is concerned, the learned IV Junior Civil Judge, City Civil Court, Hyderabad, allowed the petition and held that the respondents 1 and 2 are liable for punishment of 15 days imprisonment for breach of injunction order dated 02.04.1998 and ordered to issue warrants on payment of process. Challenging the orders passed in I.A.95 of 2005, the petitioner herein filed C.M.A.No.302 of 2005 before the III Additional Chief Judge, City Civil Court, Hyderabad, and the learned Judge, by his order dated 07.08.2006, dismissed the said C.M.A. Aggrieved by the same, C.R.P.No.5818 of 2006 is filed by the petitioner. Challenging the orders passed in I.A.96 of 2005, the respondents filed C.M.A.No.280 of 2005 before the III Additional Chief Judge, City Civil Court, Hyderabad, and the learned Judge, by his order dated 07.08.2006, allowed the C.M.A by setting aside the order of imprisonment of the respondents in I.A.No.96 of 2005. Aggrieved by the same, the petitioner filed C.R.P.No.5554 of 2006. Learned counsel for the petitioner has submitted that when the respondents started construction, the petitioner got issued a legal notice and at that time pits for foundation were dug and RCC columns were being raised and in spite of issuing notices, the respondents continued the construction work and therefore the petitioner filed the suit on 29.12.1997 and since the respondents made their appearance and sought time for filing counter in the injunction petition, status quo orders were granted on 02.01.1998 and subsequently the said status quo order was modified as an injunction order on 02.04.1998 and in spite of the status quo orders and subsequent injunction orders the respondents continued their construction and the petitioner had adduced oral and documentary evidence which go to show that the respondents have violated the orders of this Court and that the lower appellate Court was not justified in holding that the petitioner failed to prove the stage of construction or that the respondents violated the injunction order. His main submission is that the admissions made by the respondents, report of the advocate-commissioner and the affidavits filed by the petitioner clinchingly establish that the petitioner has proved her case. It is also his submission that when the trial Court, taking into consideration all the facts and circumstances, has passed a reasoned order in I.A. No. 96 of 2005, the lower appellate Court was not justified in setting aside the same by a cryptic order. It is also his submission that several grounds taken by the petitioner and the material adduced by her were not at all taken into consideration by the lower appellate Court and when the material evidence is not taken into consideration and the findings are perverse and contrary to the record, such findings are liable to be set aside and this Court while exercising revisional jurisdiction can set aside the order which is perverse. It is also his submission that the fact that the municipal authorities have subsequently cancelled the construction permission granted to the respondents and the report of the Advocate- commissioner that he was obstructed would go to show the illegal acts of the respondents. It is also submitted that the contention of the respondents that they constructed as per the sanctioned plan is also not correct and the Advocate-Commissioner’s report itself shows that the construction is against to the sanctioned plan. He has relied on the judgment reported in C. Kulsum Reddy v. State of A.P[1]. Per contra, learned counsel for the respondents submitted that the respondents have purchased the property from the petitioner for a valuable consideration of Rs.16,00,000/- and that though there is a negative covenant in the sale deed that is not binding on the respondents and that the respondents after obtaining permission from the Municipal Corporation, Hyderabad, started construction and that their construction is in accordance with the sanctioned plan and that there is nothing on record to show that the petitioners have violated the status quo order or the injunction order and that those orders restrict the respondents from making construction in an area of 10 feet only towards the eastern side of their plot and 5 feet towards the northern side and that there is no order restraining the respondents from making construction in the other area of their plot. He further submitted that the petitioner has been misleading the Court by saying that the respondents are prevented from making construction in the entire plot. It is also his submission that the revisional powers have limited scope and when the lower Court has committed any jurisdictional error or when there is any material irregularity, then only the High Court has power to interfere with and in normal course the revisional Court cannot interfere and set aside a finding of facts. In support of his contention, he has relied on the decisions reported in Chaube Jagdish Prasad v. Ganga Prasad Chaturvedi[2], M/s. D.L.F. Housing and Construction Co.(P) Ltd., v. Sarup Singh[3] and Keshardeo Chamria v. Radha Kissen Chamria[4]. The main points that arise for consideration are; (1) whether the respondents have violated the orders of the Court and (2) whether the impugned orders are liable to be set aside. It is not in dispute that the petitioner was the owner of the house bearing premises No.3-4-142/5/A, admeasuring 697 sq. yards, situated at Barkatpura, Hyderabad. It is also not in dispute that the petitioner has sold 300 sq. yards of open land covered with small house towards western side of her dwelling house to the respondents for a consideration of Rs.16,00,000/- and executed a registered sale deed in favour of the respondents on 24.06.1997. It is also not in dispute that there is a covenant in the said registered sale deed, which is as follows. “Set back at least about 3 meters (10 feet) width on the rear (eastern side) and 1.5 meters width on the northern side in the schedule property shall be left permanently.” It is also not in dispute that alleging that the respondents started construction against the above referred covenant, the petitioner got issued a legal notice on 07.11.1997 and subsequently filed the suit in O.S. No.5144 of 1997 and also filed I.A. No.1743 of 1997 with the following prayer. “To grant ad-interim injunction restraining the respondents from making further construction in and over the 10 feet set-back area rear side to the respondents house and eastern side to the petitioner’s house i.e., suit schedule property piece and parcel of open land 10 feet width and 45 feet length to the rear side of the respondents house under construction covered by sale deed dated 24.06.1997 bearing .No.3-4-142/5/A, situated at Barkatpura, Hyderabad.” When the matter came up on 02.01.1998 before the VI Junior Civil Judge, City Civil Court, Hyderabad, the respondents made their appearance and requested time for filing counter. Therefore, the Court below passed orders as follows. “The respondents requested time for counter. Meanwhile status quo is ordered to be maintained by the respondents till the counter is filed.” It is also not in dispute that on contest the said IA was allowed by an order dated 02.04.1998 and ordered that the respondents are not entitled to make any further construction 10 feet on the eastern side and 6 feet on the northern side of the plot purchased by them and status quo order was modified into injunction. It is also not in dispute that the petitioner filed I.A. No.95 of 2005 alleging that the respondents have violated the status quo orders and praying to punish the respondents by putting them in civil prison and attach their properties and consequently demolish the illegal structures raised by them. The petitioner also filed I.A. No.96 of 2005 praying to punish the respondents for disobeying the injunction orders passed in I.A. No.1743 of 1997 filed in O.S. No.5144 of 1997. As seen from the record it appears that the respondents have filed photos showing the construction upto first floor only in O.S. No.4610 of 1997. Since the parties are the same and subject matter is also same and the observations have been made in a judicial order, the recitals of the same also can be looked into in this matter. Therefore, the crucial points that arise for consideration are whether the respondents have violated the status quo orders from 02.01.1998 till the date of filing of the petition in I.A. No.95 of 2005 on 16.02.1998 and whether the respondents have violated the injunction orders from 02.04.1998 till 16.04.1998. During the course of enquiry, an Advocate-Commissioner was appointed in I.A. No.507 of 1998 and that he filed his report on 29.07.1998. It is also pertinent to note that in the suit being O.S. No.4610 of 1997 filed by the respondents against the Municipal Corporation of Hyderabad, another advocate-commissioner was appointed and he filed his report on 15.06.1998. Since the allegations are serious in nature and the respondents were ordered to send to civil prison for violating the injunction orders, I have gone through the entire material once again in these revisions. In the notice dated 07.11.1997 the petitioner had alleged that the respondents started digging pits for pillars and were raising RCC columns. In the affidavit filed in support of the injunction petition, the petitioner submitted that if the interim injunction was not granted and if the respondents raised the construction in 10 feet set-back area in the rear side (eastern side) and 1.5 meters set back area in the northern side she would be prevented from free air and light. So, the averments reveal that the respondents had started construction. However, the suit averments go to show that the respondents have even completed first floor and were constructing balcony. The petitioner along with injunction petition filed five photographs showing the stage of construction. The counter filed by the respondents reveals that their construction reached up to the second floor and that they had put up the pillars at a distance of 8 feet 3 inches from their western side boundary and that they started construction on 30.09.1997 an that till November 1997 the petitioner had never objected. It is also their case that as per the sanctioned plan they have to leave only 6 ½ feet open space on their western side. Thus, by the date of filing counter on 26.02.1998 in I.A. No.1743 of 1997 the stage of construction was reached up to the second floor level. Admittedly, the status quo order was there from 02.01.1998. Even if the case of the respondents is accepted that the status quo order was in force from 02.01.1998 to 26.02.1998. The order passed in IA No.5107 of 2007 in O.S. No.4610 of 1997 by the II Junior Civil Judge between same parties and MCH reveal that the photos filed by the respondents show the existence of construction and the date of said suit show the construction of ground and first floor only and by the date of passing of order on 01.05.1998 the respondents herein appears to have raised third floor also. The petitioner in support her case examined PWs.1 and