IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 9TH APRIL 2010 / 19TH CHAITHRA 1932 CRP.NO. 67 OF 2009(B) --------------------- {IN EP.649/2005 IN OS.1305/1999 OF THE PRINCIPAL MUNSIFF'S COURT, ERNAKULAM} .................... REVN. PETITIONER(S): DECREE HOLDER --------------------------------------------- 1. MADHAVI AMMA, D/O. KUNJI AMMA, THUNDATHIL HOUSE, OLD PADMA PRESS, KISHAT ROAD NORTH END, THRIPUNITHURA (DIED) 2. NANDA KUMAR, S/O. LATE MADHAVI AMMA, AGED 36, THUNDATHIL HOUSE, OLD PADMA PRESS, KIZHETH ROAD, THRIPUNITHURA, NOW RESIDING AT KATTAPPILLIL HOUSE, VATTEKKUNNU, CHOTTANIKKARA.P.O. BY ADV. SRI.A.BALAGOPALAN SRI.A.RAJAGOPALAN SMT.T.LAKSHMI SMT.KALA G.NAMBIAR RESPONDENT(S): JUDGMENT DEBTOR ------------------------------------------- 1. SARADA AMMA, W/O. D.S UNNITHAN AGED 61, DURGA NIVAS, HOUSE NO. 15/65, CHAKKAMKULANGARA WEST NADA, THRIPUNITHURA, KANAYANNUR TALUK. 2. D.S. UNNITHAN, AGED 71, DURGA NIVAS, HOUSE NO. 15/65, CHAKKAMKULANGARA WEST NADA, THRIPUNITHURA, KANAYANNUR TALUK. R2 BY ADV. SRI.M.S.UNNIKRISHNAN THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/02/2010, THE COURT ON 09/04/2010 PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. --------------------------------------- C.R.P.No.67 of 2009 --------------------------------------- Dated this the 9th day of April, 2010 O R D E R Challenge in the revision is against the order of the learned Munsiff, Ernakulam dismissing an application moved by the decree holder to proceed against the judgment debtors under Order 21 Rule 32 of the Code of Civil Procedure for violating the decree for perpetual prohibitory injunction. 2. Short facts giving rise to the revision may be summed up as under: The 1st revision petitioner (hereinafter referred to as the decree holder) was the tenant of a building owned by the 1st respondent and admittedly under a lease arrangement with her. There were proceedings for eviction of the decree holder/tenant from the scheduled building initially at the instance of the first respondent and later by her daughter in whose favour the property was C.R.P.No.67 of 2009 :: 2 :: subsequently assigned. While such proceedings were pending, apprehending forcible eviction, the decree holder filed a suit for perpetual prohibitory injunction as O.S.No.1305/99 to restrain the respondents from evicting her forcibly from the tenanted premises. The respondents gave an undertaking that they have no intention to evict the tenant from the premises. Accepting the undertaking a decree was passed by the court in the suit restraining the respondents from forcibly evicting the tenant otherwise than under due process of law. Flouting that decree, while the decree holder was not at the house, the respondents demolished portions of the building and rendered it inhabitable, is the case of the decree holder tenant to proceed against them under Order 21 Rule 32 of the Code. The incident occurred on the night of 5.9.2005, but the demolition of the building continued on the subsequent night as well, on C.R.P.No.67 of 2009 :: 3 :: 6.9.2005, taking advantage of the absence of the tenant, was her case. 3. The respondents (hereinafter referred to as the judgment debtors) resisted the application contending that after shifting residence from the tenanted premises to a building purchased by the son of the tenant with an intention to cause injury to landlords, the decree holder and her son demolished portions of the building. They have done that mischief, according to the judgment debtors, to implicate them falsely in criminal cases. 4. In the enquiry conducted over the proceedings, an advocate commissioner deputed on the request of the decree holder, conducted a local inspection and filed a report with some photographs taken over the demolished building. Two witnesses were examined on behalf of the decree holder including her son and Exts.A1 to A21 were exhibited on the side C.R.P.No.67 of 2009 :: 4 :: of the decree holder. The judgment debtors examined Dws.1 to 9 and exhibited B1 to B3. Exts.X1 to X4 were also exhibited, on such documents being summoned and produced at the instance of the judgment debtors. The learned Munsiff, after considering the materials placed and hearing the counsel on both sides, found merit in the contentions taken by the judgment debtors that the son of the decree holder examined as PW.1 might have destroyed the building for the purpose of indicting the judgment debtors. The case canvassed by the decree holder that the demolition was carried out by the judgment debtors was found not credit worthy and acceptable. In that view of the matter, the proceedings initiated against the judgment debtors were dropped dismissing the application of the decree holder. Propriety and correctness of that order is challenged in the revision. 5. I heard the counsel on both sides. C.R.P.No.67 of 2009 :: 5 :: 6. The learned counsel for the decree holder assailed the order of the court below as unsustainable under law, contending that there was total mis-appreciation of the facts and circumstances involved in the case and, further improper refusal on the part of the court to receive on evidence the documents produced, especially copies of the complaints filed by the decree holder to the police for the reason that they are photo copies. Conclusions drawn by the court that the demolition might have been done by the son of the decree holder examined as PW.1 is assailed by the counsel contending that it adds insult to the injury inflicted on the decree holder in whose favour the court had granted a decree for perpetual prohibitory injunction restraining the judgment debtors from forcibly evicting her from the tenanted premises. The Rent Control Petition for eviction of the tenant had not attained finality even on the C.R.P.No.67 of 2009 :: 6 :: date of demolition of the building is highlighted by the counsel to impeach the inferences drawn by the court that the decree holder tenant had voluntarily vacated from the building to another house purchased by one of her sons expending his funds. The order of the court below, dismissing the application of the decree holder, without considering the proved facts and circumstances involved, as established by the materials, is liable to be set aside and the case be remanded for fresh consideration in accordance with law, is the plea canvassed by the counsel. 7. Per contra, the learned counsel appearing for the judgment debtors, invited my attention to the plethora of materials let in by the judgment debtors, who has examined 9 witnesses as Dws.1 to 9 and also summoned and produced Exts.X1 to X4, apart from exhibiting Exts.B1 to B3 to substantiate their contention that the decree holder tenant had shifted to a C.R.P.No.67 of 2009 :: 7 :: building purchased by her son under a sale deed executed at least one week before the date of occurrence - demolition of the building. The learned counsel forcefully contended that the finding arrived by the court below that the tenant had shifted the residence from the tenanted premises is amply proved by the materials tendered in the case. The decree holder had continued occupation over the building even on the date of demolition as canvassed by her, according to the counsel, is belied by the report of the Advocate Commissioner which demonstrated that no household articles other than 1 or 2 jars were seen at the time of his inspection. The decree holder had removed all the household articles and shifted from the building and later her son caused demolition of the building with the mala fide intention to implicate the judgment debtors in criminal cases, is the submission of the learned C.R.P.No.67 of 2009 :: 8 :: counsel for the decree holder. It is further contended that the landlord had obtained possession of the tenanted premises subsequently through court, pursuant to orders of eviction passed in the Rent Control Petition. The finding arrived by the learned Munsiff that the decree holder had shifted from the building much before the occurrence, which is fully supported by the materials tendered, according to the counsel, goes a long away in demolishing the false case set up by the tenant that the demolition was carried out by the judgment debtors. The findings of fact arrived by the court below on the basis of the materials produced, are not liable to be interfered with in exercise of the revisional jurisdiction, and there is no impropriety or illegality in the order of the court below in dismissing the suit, in the proved facts and circumstances of the case, and so much so, the revision is only to be C.R.P.No.67 of 2009 :: 9 :: dismissed, is the submission of the counsel for the judgment debtors. 8. I have considered the rival submissions made by the counsel with reference to the order passed by the learned Munsiff impugned in the revision. Perusing the order of the courts below, it is noticed that the learned Munsiff has taken a view that in a proceeding under Order 21 Rule 32 of the CPC, the burden cast upon the petitioner/decree holder imputing violation of the decree by the judgment debtor is so onerous that he has to establish his case as in a criminal proceeding. The learned Munsiff has also expressed the view that since the decree holder had imputed that the building was destroyed by the judgment debtor the only point to be considered is whether that contention is proved. Who has destroyed the building, though rival case is set up by the parties, is not a matter to be examined as it C.R.P.No.67 of 2009 :: 10 :: is not the requirement of law, according to the view expressed by the court below. The very approach made by the court in examining the materials produced in the case appears to be faulty and, in fact, a perusal of the order shows material facts and circumstances involved in the case were either mis- appreciated or discarded on flimsy reasons. 9. The case presented by the decree holder as to wilful disobedience of the decree of injunction by the judgment debtors in demolishing the building is doubted by the court from the very inception for the reason that in the petition filed before the court, she has not stated that she continued in occupation of the building. Whether she was in actual occupation of the building or not is wholly irrelevant and immaterial when she had a legal right to continue in occupation till evicted by due process of law. She occupied the building as a tenant protected C.R.P.No.67 of 2009 :: 11 :: under the provisions of the BRC Act, the proceedings of which then were admittedly pending, was not even taken note of by the court in appreciating the facts involved on the premise that to sustain her application under Order 21 Rule 32 CPC against the judgment debtors, she must plead and prove her actual occupation of the building as and when it was demolished allegedly at the instance of the judgment debtors. Strangely enough photo copies of the complaints produced by the complainant, though received in evidence subject to proof, were discarded holding that it is inadmissible in evidence. The evidence of PW.1 as to the filing of the complaints before the police and the contents of such complaints being made use of by the judgment debtor in cross-examination to impeach the credit of that witness canvassing a case that very many particulars are absent in such complaints, were ignored by the court in C.R.P.No.67 of 2009 :: 12 :: holding that such secondary evidence is totally inadmissible. In fact, both sides have filed complaints against one another before the police with respect to the demolition of the building is amply demonstrated in the facts and circumstances present in the case. The evidence of PW.2, the ocular witness, was brushed aside by the court below doubting his credit worthiness for the reason that he had not reacted in a particular manner as indicated by the court below. He should have gone to the police and reported the complaint, appears to be the view formed by the court below to doubt his testimony as to witnessing the demolition of the building by the judgment debtors and their associates. Even assuming that there is some discrepancy in his evidence, the learned Munsiff was expected to appreciate his evidence in the back drop whether he has any interest against the judgment debtors to set C.R.P.No.67 of 2009 :: 13 :: up a false version that he had witnessed their acts of demolition of the building. There is nothing in the order to show that any material was brought out during the cross-examination of the witness to show that he had any animus or ill-will towards the judgment debtors to perjure against them before a court of law in narrating a false version implicating them in the demolition of the building. The non- examination of the decree holder an old lady, but only her son, PW.1, to substantiate the case set up against the judgment debtors, it is seen, is taken serious note by the court below and it has gone even to the extent of accepting the defence canvassed by the judgment debtors that against her will her son PW.1 was prosecuting the petition setting up a false case of demolition of the building by the judgment debtors. If at all the court had any doubt, over the prosecution by the decree holder, in view of the defence canvassed by C.R.P.No.67 of 2009 :: 14 :: the judgment debtors as indicated above, nothing prevented it from issuing an order/direction for appearance of the decree holder in person and then ascertaining whether she is the prosecuting agency. When a petition is filed by the decree holder imputing violation of a decree of injunction and on behalf of that decree holder her son is examined, it is too much to throw out that case expressing a view that the decree holder is not interested in the prosecution accepting the defence version canvassed by the judgment debtors that decree holder is not interested in the case. 10. In a proceeding under Order 21 Rule 32 Code of Civil Procedure, the only question that arises for consideration is whether the party bound by the decree has had an opportunity of obeying the decree for injunction and has wilfully failed to obey it. The rival case set up by the parties in the C.R.P.No.67 of 2009 :: 15 :: case leave no room for any doubt that the building was demolished by human agency. The decree holder imputes that it was done by the judgment debtors and disputing that case the judgment debtors have contended that it was done by the decree holder. The decree of injunction was in force restraining the judgment debtor from interfering with the possession and enjoyment of the tenanted premises of the decree holder. The evidence of PW.1 would show that complaints were given before the police officers at various levels, but no action was taken. His evidence as to witnessing demolition of the building on the second night is supported by PW.2. Advocate commissioner who visited the spot two days after the occurrence found a calender on the wall, some bottles etc., in the premises. The defence version canvassed by the judgment debtor is that the decree holders shifted their residence to another building and the C.R.P.No.67 of 2009 :: 16 :: demolition was caused by PW.1 the son of the decree holder. I do not wish to advert to the evidence let in the case by either side in support of their respective case, but it is necessary to point out that cessation of occupation of the building by the decree holder canvassed by the judgment debtor, at the most, can only be one among the circumstances that can be looked into with reference to the other circumstances present in examining the question whether there was a wilful disobedience of the decree of injunction by the judgment debtors as imputed by the decree holder. In case the court entertains any doubt as to whether the decree holder is actually interested in prosecuting the petition, that has to be enquired into issuing appropriate orders compelling her presence for an enquiry thereof. 11. The order passed by the court below dismissing the execution petition cannot C.R.P.No.67 of 2009 :: 17 :: be sustained as it is seen that the facts and circumstances present in the case as well as the evidence tendered by both sides have been mis-appreciated following a wrong approach as if the proceeding under Order 21 Rule 32 Code of Civil Procedure, demand strict proof as in a criminal proceeding. Just as any other civil case, the court adjudicating a dispute under Order 21 Rule 32 has to decide the questions arising for consideration on preponderance of probabilities and it is not expected to insist from the decree holder, who imputes violation of the decree by the judgment debtor, proof establishing his wilful disobedience of the decree beyond the shadow of reasonable doubt. When materials are tendered by both sides, the court has to evaluate them and form a conclusion as to whether or not there was wilful disobedience of the decree of injunction by the judgment debtors. Setting aside the impugned order the C.R.P.No.67 of 2009 :: 18 :: court below is directed to examine the matter afresh on the available materials produced, after hearing both sides and dispose the case in accordance with law. The direction issued to decide the case on the available materials would not stand in the way of the court below in summoning the decree holder and of conducting an enquiry whether the petition is prosecuted at her instance, if it finds reason to hold such enquiry. The court below shall also make every endeavour to complete the proceedings as expeditiously as possible, at any rate, within a period of three months from the date of receipt/production of a copy of this order. Revision is disposed as indicated above. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy//