IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD TUESDAY, THE SECOND (2ND) DAY OF AUGUST, TWO THOUSAND AND ELEVEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition No.2233 of 2009 Between: Gubba Chandrasekhar … Petitioner And: C Chakradhara Reddy & others …Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition No.2233 of 2009 ORDER: This revision is directed against the order dated 27.04.2009 in IA No.986 of 2006 in IA No.480 of 2001 in OS No.348 of 2001 on the file of the IV Additional Senior Civil Judge (FTC), L.B.Nagar, Ranga Reddy district, wherein the said application filed by the respondents 1 to 4 herein under Order 39 Rule 2A read with Section 151 CPC, was allowed, directing that the petitioner herein shall be detained in the civil prison for two months and that the suit schedule property shall be attached. 2. Heard the learned counsel for the petitioner and the learned counsel for the respondents-defendants. Perused the record. 3. The petitioner herein filed suit for permanent injunction restraining the respondents 1 to 4 herein-defendants from in any way interfering with their possession and enjoyment of the land in an extent of Ac.5.13 guntas in Sy.Nos.387 to 390 of Turkayamjal village. He filed IA No.480 of 2001 for temporary injunction and interim injunction was granted on 10.04.2001. In the said petition, the petitioner filed a memo marked as Ex.A.2, wherein he undertook that he shall not convert the suit property into non- agricultural land and he shall not alienate the land till the disposal of the suit. On the said undertaking contained in Ex.A.2, a docket order Ex.A.3 was recorded by the Principal Senior Civil Judge, duly recording the said memo. It is alleged that subsequently, the petitioner made certain improvements over the land and changed the physical features, the defendants got appointed an Advocate Commissioner and he filed Ex.A.4 report, wherein it was noted that certain developments were made over the land in the recent past as told by the villagers. The report Ex.A.4 also shows that a well situated in the said land was closed with mud about 3 or 4 months back and BT roads were also laid and drainage manholes on both sides of the roads were dug and drainage pipes dumped and 13 cement poles for connecting electricity wires and one transformer was also installed and plotting of stones was made noting the numbers thereon. The respondents-defendants got issued notice Ex.A.5 to the Sub Registrar office stating that the petitioner herein committed breach of the orders of the Court and made a request to the Sub Registrar not to entertain any transfers or conveyance in respect of the suit land. However, it is alleged that certain alienations have taken place under Exs.A.6 and A.7 in the name of the petitioner’s wife G.Nagasobha. The defendants therefore alleged that the petitioner-plaintiff violated the undertaking given under Ex.A.2 by converting the suit land into non-agricultural land and effected change in the physical features and also alienated portions of the same. 4. The learned Senior Civil Judge, relying on the oral evidence of PW.1, who is stated to be the general power of attorney holder of the respondents herein and Exs.A.2 to A.7, held that the respondents claim stood established as the petitioner herein did not come forward to face the cross-examination in spite of granting adjournments and therefore, his evidence in chief filed by way of affidavit stood eschewed. A perusal of the impugned order would go to show that non participation of the petitioner herein in the proceedings weighed more with the learned Senior Civil Judge in reaching the conclusion that the claim of the respondents stood established. 5. It is to be noted that the suit was filed by the petitioner herein for temporary injunction based on an agreement of sale. The petitioner was therefore a mere agreement holder, but not a title holder in respect of the suit property. The respondents/ defendants are the family members of Narayanareddy, who is brother of Sudarshan Reddy, from whom the petitioner claims to have purchased under agreement of sale dated 29.06.1991. The defence of the respondents was that the suit for partition was pending between the branches of Narayanareddy and the petitioner’s vendor Sudarshan Reddy and there was no partition effected by metes and bounds. Sudarshan Reddy, vendor of the petitioner, is not a party to the suit OS No.348 of 2001. Any undertaking given by the petitioner, who is a mere agreement holder, would not come in the way of the vendor Sudarshanreddy exercising his rights of ownership, including the right of alienation. It is not the case of the respondents/defendants that any sale deeds were executed by the petitioner in respect of any portion of the suit land. In fact, as a mere agreement holder, he could not have effect any alienation. Even as per Exs.A.6 and A.7, which are only encumbrance certificate on which reliance is placed by the trial Court, the alienations were noted in the name of the wife of the petitioner by name Nagasobha. The said Nagasobha is also not a party to the suit and the undertaking Ex.A.2 given by the petitioner would not be binding on her. It cannot therefore be said that the petitioner has effected any alienation in respect of any portion of the suit land and that it was in violation of the undertaking. 6. Regarding change of physical features also, the trial court relied upon Ex.A.4 report of the Advocate Commissioner, wherein it was noted that certain developments have taken place over the suit land in the recent past ‘as told by the villagers’. The source for the said observation regarding developments in the suit land, thus, lies on hearsay. It is not disputed that the suit was ultimately dismissed on 28.02.2006 for non-prosecution. With the dismissal of the suit, the undertaking given under Ex.A.2 also ceased to have effect. IA No.986 of 2006 under Order 39 Rule 2A was filed by the respondents in November 2006. In fact, the earlier application filed in IA No.114 of 2003 by the defendants alleging disobedience on the part of the petitioner/plaintiff to the orders of the court, was closed while dismissing the suit for non- prosecution. Nine months after dismissal of the suit, the respondents have filed the present application IA No.986 of 2006 for the self same relief, which was earlier not granted in IA No.114 of 2003. The report Ex.A.4 is said to have been filed by the Advocate Commissioner, who was appointed while the suit was pending. Admittedly, no Advocate Commissioner was sought to be appointed for making a local inspection during enquiry in IA No.896 of 2006. That apart, the said Advocate Commissioner is not examined to prove the contents of Ex.A.4. The contempt proceedings being quasi criminal in nature, the trial Court ought not to have relied upon the contents of Ex.A.4 when they are not duly proved by examining the concerned person, the author of the said report, as a witness. The report Ex.A.4 does not specify as to when and by whom the alleged change in the physical features was effected and in fact, the Advocate Commissioner, who was appointed for the purpose of local inspection, would not have embarked upon any such enquiry also. The respondents have not adduced any evidence in support of their allegation that it was the petitioner, who made the changes in the suit land and was responsible for all the installations found on the suit land. No effort is made by the respondents/defendants to adduce evidence to establish independently that the petitioner got roads laid, got drainage manholes dug and got drainage pipes dumped or got cement pipes installed over the suit land. The contempt proceedings, being quasi criminal in nature, the burden heavily lies on the defendants to establish by satisfactory evidence their allegation that the petitioner effected change of physical features of the suit land and that it was in violation of the undertaking Ex.A.2, but the respondents/defendants miserably failed to do so. 7. In fact, the respondents-defendants have not specified any where either in the application or in the evidence as to the date of the alleged contempt or the acts and the violation of the court order and no particulars attributing any specific overt acts to the petitioner herein have been disclosed. The material relied upon by the trial Court is too scanty and does not connect the petitioner with the alleged development over the suit land. Even assuming that certain developments have taken place over the suit land as noted by the Advocate Commissioner, which report in fact is not duly proved, still there is no satisfactory or sufficient evidence establishing any nexus between the petitioner and the changes in the physical features that were brought out subsequent to Ex.A.2 undertaking. No where in the counter filed by him, the petitioner has stated that he took up development work and sold certain plots. It was averred in the counter that even by the time of filing undertaking memo on 05.07.2001, he undertook the development work and sold various plots as there was no injunction against him. The evidence on record does not specify as to whether the development on the suit land as noticed by the Commissioner, was prior to filing of the memo on 05.07.2001 or subsequent to undertaking and in violation of the orders of the court. In fact, the respondents/defendants filed IA No.114 of 2003 even during pendency of the suit alleging violation of the orders of the court regarding undertaking given by the petitioner, but the said petition was also closed, while dismissing the suit for non- prosecution. Admittedly, the respondents/defendants did not file any application for restoration of the said petition IA No.114 of 2003 and seeking independent enquiry therein. According to the petitioner, while closing IA No.114 of 2003, liberty was given to the respondents/defendants to waive the said application when ever occasion arose. But nothing is placed on record to show any such liberty was given to the respondents/defendants. 8. Learned counsel for the respondents relied upon the decision in ‘Iswar Bhai C.Patel @ Bachu Bhai Patel v. Harihar Behera[1]’ wherein the apex Court held that ‘when the appellant had abstained from the witness box and had not made any statement on oath in support of his pleading set out in the written statement, an adverse inference has to be drawn against him.’ The above case relates to a civil dispute regarding recovery of certain amounts due. The principles laid down in the decision referred to therein, which were applied to the facts of the case as to the circumstances under which an adverse inference can be drawn under Section 114(g) of the Evidence Act are not disputed. But however they cannot be made applicable to the present case, where the proceedings are quasi criminal in nature and burden of proof lies heavily on the respondents/defendants, notwithstanding the failure of the petitioner to appear before the Court and give evidence. 9. Learned counsel for the respondents further relied upon the decision of this Court in ‘Matadin Garwal v. Syed Abdul Razack[2]’, wherein the Division Bench held that ‘in case of disobedience of the orders, the Court must deploy its firm hand and the erring party shall not be spared and left scot-free. The courts shall not be lenient in such matters where the party in utter disrespect adopts a totally defiant attitude towards the orders of the Court. Stern action resulting in deterrent punishment must unhesitatingly follow in such cases. The interference of the learned Judge in modifying the sentence is not warranted in view of the facts and circumstances of the case.’ 10. In the above decision, there was a categorical finding that the injunction order has been flouted, but the learned single Judge having observed that it was a case that has to be severely dealt with and having sentenced the respondent to imprisonment, however in a review application, modified the sentence by deleting the imprisonment. The said decision is not applicable to the present case wherein based on the evidence available on record no finding can be recorded that the petitioner has flouted the orders of the Court. 11. Learned counsel for the respondents also relies upon the decision in ‘Vemusetti Appayyamma vs. Lakshman Sahu[3]’ wherein it was held that ‘report of the Commissioner is a part of record and can be considered as evidence irrespective of the fact whether Commissioner is examined as witness or not’. The above decision also related to a civil suit for perpetual injunction, wherein the Advocate Commissioner was appointed to make a local inspection. 12. In the present case, the petitioner herein in his counter filed in IA No.986 of 2006, specifically alleged that the respondents/defendants have been in collusion with the Advocate Commissioner. That apart having regard to the nature of the proceedings which entail penal consequences, the respondents/ defendants ought to have examined the Commissioner to prove the contents of Ex.A.4 report. Even otherwise, the contents of Ex.A.4 report do not in any way establish that the developmental works noted over the suit land were undertaken by the petitioner subsequent to Ex.A.2 undertaking. Even as per Ex.A.4, the information as to the developments having taken place in the recent past over the suit property is in the nature of hearsay. 13. In the circumstances, it is held that the impugned order holding the petitioner guilty of disobedience to the order of the Court under Ex.A.3 is not sustainable, as the material on record is neither sufficient nor satisfactory to reach any such conclusion. The impugned order directing the petitioner to be detained in the civil prison for two months and further directing attachment of the schedule property is held, liable to be set aside and accordingly set aside. 14. In the result, the civil revision petition is allowed. No order as to costs. __________________ G.V.SEETHAPATHY, J Date: 02.08.2011 bss [1] AIR 1999 SC 1341 [2] 1993(3) ALT 280 (DB) [3] AIR 1973 AP 168