IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 2ND DECEMBER 2008 / 11TH AGRAHAYANA 1930 WP(C).No.27340 of 2008 (D) ---------------------------------- OS.149/2007 of PRL.M.C., KOCHI. .................... PETITIONER: --------------- VINCENT, S/O.MANUAL, AGED 43 YEARS, RESIDING AT ARAYASSERRY HOUSE, SAUDI, MUNDAMVELIL, RAMESWARAM VILLAGE, KOCHI TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.T.MADHU RESPONDENT: ---------------- JOSEPH @ JOSY, S/O.ANTONY, AGED 39 YEARS, KOLOTHUMVEETTIL, SAHAKARANA ROAD, EDAPPALLY, KOCHI-24. ADV. SRI.K.V.BINOD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.27340 of 2008 (D) APPENDIX PETITIONER'S EXTS:- EXT.P1:- TRUE COPY OF THE PLAINT IN O.S. NO.183/07 ON THE FILE OF THE PRINCIPLE MUNSIFF'S COURT, KOCHI. EXT.P2:- TRUE COPY OF THE PLAINT IN O.S. NO.149/07 ON THE FILE OF THE PRINCIPLE MUNSIFF'S COURT, KOCHI. EXT.P3:- TRUE COPY OF THE I.A. NO.935/07 IN O.S. NO.149/07 ON THE FILE OF THE PRINCIPAL MUNSIFF'S COURT, KOCHI. EXT.P4:- TRUE COPY OF THE JUDGMENT DT.20/09/07 IN O.S. NO.149/07 AND O.S. NO.183/07 ON THE FILE OF THE PRINCIPAL MUNSIFF'S COURT, KOCHI. EXT.P5:- TRUE COPY OF THE APPEAL MEMORANDUM IN A.S. NO.19/08 ON THE FILE OF THE SUB COURT, KOCHI. EXT.P6:- TRUE COPY OF THE APPEAL MEMORANDUM IN A.S. NO.18/08 ON THE FILE OF THE SUB COURT, KOCHI. EXT.P7:- TRUE COPY OF the EXECUTION PETITION NO.35/08 IN O.S. NO.149/07 ON THE FILE OF THE MUNSIFF'S COURT, KOCHI. EXT.P8:- TRUE COPY OF THE ORDER DT.26/03/07 IN I.A. NO.826/07 IN O.S. NO.149/07 ON THE FILE OF THE MUNSIFF'S COURT. EXT.P9:- TRUE COPY OF THE CERTIFICATE ISSUED BY THE VICAR OF OUR LADY OF HEALTH CHURCH, KANNAMALY DT.01/09/08. .................. K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.27340 of 2008 ------------------------------------------------ Dated this the 2nd day of December, 2008 JUDGMENT Petitioner is the first defendant in O.S.149/07 on the file of the Munsiff's Court, Kochi. As per Ext.P8 order on I.A.826/07, an interim order of injunction was issued against the defendants in the suit restraining them from trespassing into the plaint schedule property till 28/03/07. It is seen from para 9 of Ext.P4 judgment that the interim prohibitory injunction was extended until further orders on 28/03/07. The plaintiff filed Ext.P3 application on 03/04/07 under Order 39 Rule 2A and Section 151 of the CPC to punish the respondents/defendants for disobeying the prohibitory order of injunction passed against them. The allegation against the defendants in the affidavit filed with Ext.P3 W. P. C. No.27340 of 2008 -2- application is that they trespassed into the scheduled property on 29/03/07 and that the petitioner is being substantially harassed by the respondents through their conduct of wilful neglect to obey the order passed against them. It is also alleged that the defendants are continuing their breach with regard to the injunction order passed against them. 2. The manner in which the defendants have violated the interim prohibitory order of injunction is not at all alleged in the affidavit except that they trespassed into the scheduled property on 29/03/07. As to what they did in the property by trespassing into it on 29/03/07 is not disclosed. The court below, however, posted Ext.P3 application along with the suit and while disposing of the W. P. C. No.27340 of 2008 -3- suit found as per discussions in para 23 of the judgment that the defendants have violated the injunction order and are liable for prosecution as prayed for and in para 25 and 26 of the judgment directed that the property of the defendants scheduled as 'A' schedule in the connected suit O.S.183/07 will be kept under attachment and the petitioner/the first defendant in O.S.149/07 shall be detained in civil prison for one month for his intentional violation of the interim injunction order. 3. It is contended before me by the counsel for the petitioner that Ext.P3 petition filed under Order 39 Rule 2A was not enquired into and it is on the basis of the evidence adduced at the trial of the suit that the court has found that there is violation of the interim injunction order committed by the W. P. C. No.27340 of 2008 -4- defendants and has ordered attachment of the property as also awarded punishment of imprisonment as against the petitioner/first defendant vide Ext.P4 judgment and decree and that for the purpose of entering finding that there is violation of injunction order committed by the defendants in O.S.149/07 stray statements of PW1/the first defendant who is the petitioner herein has been taken into account without putting the petitioner/ first defendant to the knowledge that he is being tried for the offence of violation of injunction and that therefore, the finding regarding violation of injunction in Ext.P4 judgment and decree be set aside inasmuch as it has disposed of Ext.P3 petition and to direct the court below to conduct fresh enquiry and dispose of Ext.P3 afresh W. P. C. No.27340 of 2008 -5- untrammelled by the observations made in Ext.P4 judgment and decree. 4. Heard submissions of the counsel and perused the records. I am not of the view that a fresh enquiry has to be ordered on Ext.P3 petition in view of the fact that it would be only waste of time of the court as there is no sufficient averment in Ext.P3 to have an enquiry conducted thereon. The only averment in the affidavit filed along with Ext.P3 petition is that the respondents trespassed into the plaint schedule property on 29/03/07; that the petitioner is being substantially harassed by the respondents through their conduct; that the petitioner is not able to effectively enjoy his property even after the interference of this Court due to the highhanded act of the respondents/defendants W. P. C. No.27340 of 2008 -6- and they are continuing their breach with regard to the injunction order passed against them. There is no whisper in the affidavit as to what all were the highhanded actions of the defendants. Though it is averred that the respondents trespassed into the scheduled property on 29/03/07, there is no mention as to whether they did any mischief in the property or commit any waste therein or reduce the property to their possession. The court below has found the defendants guilty of having violated the injunction order on the basis of an admission made by the petitioner/ first defendant as PW1 in cross examination that himself and other members of his family are using the property of the plaintiff for their ingress and egress even now; and that, that is violation of the injunction order. W. P. C. No.27340 of 2008 -7- Ext.P8 injunction order which was later extended till disposal of the suit restrains the respondent only from trespassing into the plaint schedule property with nothing else namely that they shall also not use the property for passage and the respondents/ plaintiffs also did not ask for any modification of Ext.P8 injunction order restraining the defendants in the suit from using any portion of their property as pathway for access to the property of the defendant. Thus, it is a case whether there is no wilful disobedience of any specific prohibitory order issued by the trial court against the defendants and the attachment of the property of the defendants and direction to imprison the petitioner/first defendant are therefore, unwarranted and are liable to be quashed in W. P. C. No.27340 of 2008 -8- this Writ Petition especially for the reason that the attachment and detention in prison were all being provided for in the decree and judgment and not in any order which the petitioner can assail in appropriate proceedings. 5. This Writ Petition is thus allowed. K.P.BALACHANDRAN, JUDGE kns/-