IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 22ND JULY 2009 / 31ST ASHADHA 1931 WP(C).No. 12168 of 2009(O) -------------------------- I.A.NO.850/08 AND I.A.NO.947/08 IN CMA.55/2007 of DISTRICT COURT, PALAKKAD .................... PETITIONER(S): -------------------------- 1. RAMACHANDRAN, S/O.PACHAN, KULAVANMOKKU CHATHARATH HOUSE, KUZHALMANNAM AMSOM DESOM, ALATHUR TALUK. 2. PEETHAMBARAN, S/O.GOPALAKRISHNAN, PONNAMPILAYKAL, PULPURAMANNAM, KUZHALMANNAM, ALATHUR TALUK. BY ADVS. MR.P.VIJAYA BHANU, MR.V.A.JOHNSON (VARIKKAPPALLIL) RESPONDENT(S): ---------------------------- 1. VENUGOPALAN, S/O.LATE GOPALAN, ERUMAKKODE HOUSE, KUZHALMANNAM AMSOM, DESOM, ALATHUR TALUK. 2. KHADERKUTTY, S/O.KUNCHUVAVA ROWTHER, R/A KUZHALMANNAM, AMSOM, DESOM, ALATHUR TALUK. R1 BY MR.V.CHITAMBARESH, SENIOR ADVOCATE, MR.T.C.SURESH MENON, MR.JIBU P THOMAS, MR.P.S.APPU, MR.A.R.NIMOD, MR.C.A.ANOOP. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/07/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.12168 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 22nd July, 2009 JUDGMENT The Writ Petition is filed seeking the following reliefs: 1. To set aside Ext.P2 common order dated 11.3.2009 made in I.A.No.850/08 and in I.A.No.947/08 in C.M.A.No.55/07 on the file of the Court of the District Judge, Palakkad. 2. To issue any other appropriate writ, order or direction which as the petitioner prays later and this Hon'ble Court may deem fit and necessary to issue in the interest of justice. 2.Petitioners are the 2nd and 3rd defendants in O.S.No.13/07 on the file of the Munsiff Court, Alathur. The first respondent filed the above suit in which he moved an application for interim injunction restraining the defendants from cutting down the trees and commiting any waste in the plaint property. The defendants 2 and 3 filed joint statement disputing the claim of the first respondent- plaintiff and contending they are in possession of the property. The first respondent filed a separate statement stating that he is not claiming any right over the property. The learned Munsiff, after hearing both sides, dismissed the application for interim injunction, against which the first respondent-plaintiff preferred an appeal as W.P.C.No.12168/09 - 2 - C.M.A.No.55/07. Along with the appeal, the first respondent-appellant moved an application for interim injunction. The appellate court directed the parties to maintain status quo. Alleging that the status quo order has been violated by the defendants in the suit by cutting down four teak trees in the property, the first respondent-appellant moved an application for prosecuting them under Order 39 Rule 2A C.P.C. The Advocate Commissioner appointed by the court conducted a local inspection and filed a report. While an enquiry over that petition was pending the first respondent-appellant again moved another application contending that there was a subsequent violation of the order by the respondents by cutting down almost all the trees in the property. The Advocate Commissioner who was appointed earlier was again directed to conduct local inspection and after such inspection a report was filed informing of further cutting down and removal of trees from the property. The learned District Judge proceeded with the enquiry on both the applications moved by the first respondent-appellant in which he was examined as a witness. No counter evidence was adduced by any of the respondents/defendants. The learned District Judge on the basis of the materials produced and hearing the counsel on both sides, found that the second and third defendants had willfully and deliberately W.P.C.No.12168/09 - 3 - violated the order of status quo passed by the court by cutting down and removing valuable trees from the property. Proceeding against the second respondent herein, the first defendant in the suit, was found not entertainable as no notice of the proceedings was given to him. For the wilful violation and disobedience of the orders of the court, the learned District Judge passed the impugned order directing the detention of the defendants 2 and 3 in civil prison for a period of six months. Propriety and correctness of that order is challenged in the petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the learned counsel on both sides. Ext.P2 is the common order passed by the learned District Judge in the two applications moved by the first respondent-plaintiff alleging violation of the order of status quo passed by that court by the respondents in the appeal/petitioners in the Writ Petition. Ext.P1 is the copy of the order passed by the learned Munsiff dismissing the application for interim injunction moved by the plaintiff. No doubt, any violation of the order passed by the court has to be viewed seriously and dealt with promptly which otherwise would make the orders of the court meaningless and discarded to be mocked at. Learned counsel for the first respondent submitted that the appeal preferred by the first W.P.C.No.12168/09 - 4 - respondent challenging Ext.P1 order was also allowed by the court below while disposing of the two applications moved under Order 39 Rule 2A C.P.C. under the common order impugned in the Writ Petition. After having heard the counsel on both sides at length and perusing the impugned Ext.P2 order with reference to Ext.P1 order passed by the learned Munsiff, the only materials placed before this court, I find, though there are strong circumstances to hold that the petitioners have wilfully violated the order of status quo passed by the appellate court more than once, the larger question arises for consideration that even if they are shown to be condemners, the determination of the punishment to be meted out to them has to be evaluated with reference to the merit of the suit claim raised by the first respondent-plaintiff which is stoutly disputed in unequivocal terms by the petitioners/defendants. Ultimately, if the plaintiff is nonsuited and the defendants are shown to be in lawful possession of the property, still if violation of the order of injunction is passed against them, they are liable to be punished, but the quantum of punishment cannot be as grave as imposed at present, the maximum provided under Order 39 Rule 2A C.P.C. Some circumstances presented in the case as borne out by Ext.P1 order of the learned Munsiff like the suit property remaining unbounded, without being W.P.C.No.12168/09 - 5 - attended to, filled with weeds, the claim of the first respondent is based on an oral lease etc. deserve to be taken note of whatever be the contumacious conduct imputed against the defendants in violating the order of status quo. I refrain from expressing any opinion over the matter as it may have a bearing in the decision of the suit which has to be decided untrammelled by any of the observations made in the interlocutory proceedings. In the given facts of the case, I find that the proceedings initiated against the petitioners for violating the order of injunction have to be considered with the trial of the suit allowing the parties to lead evidence in common, but passing a judgment in the suit and an order in the above applications separately. If the orders passed by the learned District Judge impugned in the petition are upheld, I am afraid, it may result in grave injustice. Though I find the materials produced in the enquiry on the applications, wherein no counter evidence was let in by the petitioners, the alleged condemners, may justify imposing punishment, but the quantum of that punishment, in the given facts of the case, deserve to be appreciated as indicated earlier with reference to the merit of the suit claim, which can be done only after the trial of the suit. So much so, the records relating to the proceedings initiated under Order 39 Rule 2A C.P.C. in the appeal W.P.C.No.12168/09 - 6 - including the commission reports and the evidence recorded shall be transmitted by the appellate court to the trial court which shall consider the matter afresh on the basis of the evidence to be let in the trial of the suit, after affording reasonable opportunity to both sides to lead further evidence, if any, in the matter and passing of a separate order as indicated above while disposing of the suit by rendering a judgment. 3. At the time of admitting the Writ Petition, the petitioners 1 and 2 were directed to furnish a security for Rs.50,000/- each to keep in abeyance the order impugned directing their detention in civil prison for a period of six months. Security furnished in compliance thereof shall remain in force till disposal of the prosecution proceedings. In addition thereto, the petitioners shall furnish additional security of Rs.50,000/- more by each of them. Thus, a security for sum of Rs.One lakh by each of them, shall be furnished to secure and safeguard whatever orders that may be passed against them after culmination of the proceedings initiated under Order 39 Rule 2A C.P.C. The additional security as directed shall be furnished by the petitioners before the trial court within a period of three weeks from the date of this judgment. The appellate court shall transmit to the court below the security furnished before that court by the W.P.C.No.12168/09 - 7 - petitioners in compliance of the directions issued by this court in the Writ Petition. Since no order has been passed against the first defendant in the suit, it is made clear that the trial court shall not proceed against him on the present two applications of the plaintiff/the first respondent. Ext.P2 order passed by the learned District Judge is set aside subject to the above directions, and the learned Munsiff is directed to consider afresh the two applications moved by the plaintiff under Order 39 Rule 2A C.P.C. against the petitioners in the light of the observations made above and in accordance with law. The trial court shall determine the questions involved and pass appropriate orders in the two applications imputing violation of the injunction order by the petitioners/2nd and 3rd defendants untrammelled by any of the observations made by the appellate court in Ext.P2 order and also observations of this court in the present judgment, after affording sufficient opportunity to both sides. The Writ Petition is disposed as above. srd S.S. SATHEESACHANDRAN, JUDGE