IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 3RD JUNE 2008 / 13TH JYAISHTA 1930 CRP.No. 1150 of 2004() ---------------------- CMA.10/2004 of SUB COURT, TIRUR OS.255/2001 of MUNSIFF COURT, TIRUR (IA 2310/2001) .................... REVN. PETITIONER/RESPONDENT/PETITIONER/PLAINTIFF: ------------------ THURAKKAL MOHAMMEDALI, S/O.ENIKKUTTY, TIRURANGADI, MALAPPURAM DISTRICT. BY ADV. SRI.K.RAMACHANDRAN RESPONDENT/APPELLANT/RESPONDENT/DEFENDANT: ------------- THAYYIL SAIDALAVI HAJI, S/O.MOHAMMED BY MUKTHIAR AGENT KUMALIL THAZHATHETHIL MUSTAFA @ BAVA, S/O.MOHAMMED KUTTY, P.O.ATHAVANAD, TIRUR-MALAPPURAM DISTRICT. BY ADV. SRI.K.A.SALIL NARAYANAN THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID, J. -------------------------------------------- C.R.P. NO. 1150 OF 2004 -------------------------------------------- Dated this the 3rd day of June, 2008 O R D E R The plaintiff in O.S. No.255 of 2001 on the file of the Munsiff's Court, Tirur is the revision petitioner. The revision is directed against the judgment dated 27.7.2004 in C.M.A. No.10 of 2004 on the file of the Sub Court, Tirur. 2. The plaintiff filed an application under Order XXXIX Rule 2A C.P.C. for taking action against the defendant for violating the order of injunction passed by the Munsiff's Court. The suit was filed for permanent prohibitory injunction restraining the defendant from proceeding with the construction work of the building and from committing any act of waste in the property. I.A. No.2241 of 2001 was also filed along with the suit for an interim order of injunction. The Munsiff's Court granted the order of injunction against the defendant on 19.11.2001. According to the revision petitioner, inspite of the above order, the defendant wilfully and intentionally disobeyed the order and proceeded with the construction C.R.P. NO.1150/2004 2 work of the building. The respondent/defendant filed a counter statement denying the allegations levelled against him. According to him, he has not violated the order of the court and that he was not aware of the order of injunction passed by the court as the same was not communicated to him. 3. With regard to point Nos.1 and 2, the trial court before and after remand held that the defendant was guilty of violation of the order of injunction and passed the impugned order committing the defendant to civil prison for three months and also attached the property belonging to him. In appeal before the Sub Court, Tirur, the question was reagitated. The appellate court after reappreciating the oral and documentary evidence marked as Exts.A1 to A5, held that there was nothing on record to prove that the order granting temporary injunction was served on the defendant. The appellate court further held that there was no material on record to conclude that the ex parte order passed by the trial court was served or communicated to the appellant. 4. Learned counsel appearing for the revision petitioner contended before me that on the basis of the oral evidence adduced by the Commissioner, inspection of the property was made thrice with notice to the power of attorney holder of the defendant. C.R.P. NO.1150/2004 3 5. I have gone through the oral evidence of the Commissioner and the report submitted by him. The Commissioner when examined only stated that he had served notice of inspection for the second and third inspections. The oral evidence tendered by the Commissioner also does not show that he had communicated the letter and spirit of the order of injunction. Even according to him, he communicated the order only to the labourers who were found working at the site. The evidence tendered by the plaintiff also does not show that the order of injunction was communicated to the defendant or that the defendant had knowledge about the order of injunction at the relevant time. It is true that the plaintiff sent the order of injunction with other records to the defendant in his local address. It is not known whether the cover containing the documents was served on anybody. The defendant is permanently employed in Gulf countries and the communication was not addressed to the defendant in his Gulf address. Hence, the learned Judge held that he was not in a position to come to the conclusion that the defendant committed an act of disobedience of the order passed by the Munsiff's Court. The appellate court also on facts held that the plaintiff failed to comply with the procedure prescribed under the provisos to Order XXXIX Rule 3 C.P.C. I have gone through the evidence adduced by the plaintiff. There C.R.P. NO.1150/2004 4 is nothing on record to take a different view from that taken by the Sub Court. The evidence adduced by the plaintiff is not sufficient enough to conclude that there was violation of the order of injunction or that the defendant had knowledge about the order of injunction passed by the Munsiff's Court. In the light of the finding entered by the appellate court, I find no reason to interefere and take a different view on facts and law. In the result, the Civil Revision Petition is without any merit and it is accordingly dismissed, There will be no order as to costs. (HARUN-UL-RASHID, JUDGE) sp/ C.R.P. NO.1150/2004 5 HAURN-UL-RASHID, J. C.R.P. NO. 1150/2004 O R D E R 3rd JUNE, 2008