IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 8TH FEBRUARY 2008 / 19TH MAGHA 1929 FAO.No. 105 of 2006 AGAINST THE ORDER IN I.A.NO.576/1993 AND 831/1993 IN O.S.NO.149 OF 1993 OF THE MUNSIFF'S COURT, KARUNAGAPPALLY APPELLANT: COUNTER PETITIONER/DEFENDANTS: ----------------------------------------------- 1. K.R. NANOO - DIED, NARAYANA BHAVAN, CHANGANKULANGARA MURI, OACHIRA VILLAGE. ADDL.2. OMANA, W/O. NANOO, NARAYANA BHAVAN, CHANGANKULANGARA MURI, OACHIRA VILLAGE. ADDL.3. KRISHNAKUMAR, -DO- -DO-. ADDL.4. GOPAKUMAR, -DO- -DO-. ADDL.5. VISHNUKUMAR, -DO- -DO-. ADDL.2 TO 5 ARE IMPLEADED AS PER ORDER ON I.A.193/95 DATED 01/07/95. BY ADVS.M/S.P.G.PARAMESWARA PANICKER (SR.), P.GOPAL AND V.B.RAMACHANDRAN. RESPONDENT: PETITIONER/PLAINTIFF: ---------------------------------- DAMODARAN ASOKAN FORMERLY PROPRIETOR, JANAKIRAJ ENGG. WORKERS AND AUTOMOBILES, BUILDING NO.V/417, OACHIRA PANCHAYAT, RESIDING AT IDAYINATHU VADAKKATHIL, THEKKUMMURI KIZHAKKEKARA MURI, THAZHAVA VILLAGE. BY ADV. SRI.V.N.ACHUTHA KURUP (SR.) SRI.B.S.SWATHY KUMAR SRI.K.G.RENGANATH THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 08/02/2008, ALONG WITH F.A.O.NO.106 OF 2006 AND C.R.P.NO.217 OF 1995, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. -------------------------------------------- F.A.O.NOS. 105 & 106 OF 2006 and C.R.P. NO. 217 OF 1995 -------------------------------------------- Dated this the 8th February, 2008 JUDGMENT In the Appeals and in the Civil Revision Petition, the legal representatives of the defendant in O.S.No.149 of 1993, Munsiff's Court, Karunagappally are the appellants and petitioners respectively. 2. The suit was filed by the respondent/plaintiff for a permanent prohibitory injunction restraining the defendant from trespassing into the workshop run by the plaintiff in the plaint schedule property and from forcibly evicting him from the property and the building. According to the plaintiff, the plaint schedule property belonged to the defendant and it was put in possession of the plaintiff on a ground rent in the year 1980. The plaintiff constructed a shed in the property and he was doing business under the name and style “Janaki Raj Engineering Works and Automobiles”. It was alleged that the plaintiff installed machinery and other accessories spending Rs.3 lakhs for the purpose of conducting the workshop. A rent deed was also executed by the plaintiff in favour of the defendant. F.A.O.NOS.105 & 106 OF 2006 AND C.R.P. NO. 217 OF 1995 :: 2 :: 3. I.A.No.576 of 1993 was filed by the plaintiff for a temporary injunction. The trial court granted interim injunction on 26.3.1993. An emergent Commission was also issued on 26.3.1993. The Commissioner inspected the property on 26.3.1993 itself. It is alleged that the interim injunction order was communicated to the defendant on 26.3.1993. But the defendant was reluctant to receive it and later, he received the injunction order on 27.3.1993 at 10 a.m. The plaintiff alleged that on 31.3.1993, defendant and his associates unlawfully trespassed into the workshop and the plaintiff was forcibly evicted. The shed was demolished by the defendant. The machineries and other articles were also taken away from the shed. The plaintiff alleged that a loss of Rs.1,98,000/- was caused to him by the illegal acts of the defendant. 4. I.A.No.831 of 1993 was filed by the plaintiff under Rule 2A of Order XXXIX of the Code of Civil Procedure against the defendant for taking action against him for having violated the order of injunction. I.A.No.832 of 1993 was filed by the plaintiff for issuing a direction to the Deputy Superintendent of Police to implement the order of injunction. 5. The court below disposed of I.A.Nos.576 of 1993, 831 of 1993 and 832 of 1993 by a common order dated 9.9.1994, which is under challenge in these Appeals and Revision. F.A.O.No.105 of 2006 is filed F.A.O.NOS.105 & 106 OF 2006 AND C.R.P. NO. 217 OF 1995 :: 3 :: against the order in I.A.No.576 of 1993, while F.A.O.No.106 of 2006 is filed against the order in I.A.No.831 of 1993. These Appeals were originally filed before the District Court and those appeals were withdrawn to this Court to be disposed of along with C.R.P.No.217 of 1995. C.R.P.No.217 of 1995 is filed challenging the order in I.A.No.832 of 1993. 6. The case of the defendant was that he did not violate the order of injunction. He also contended that he was not aware of the suit or issuance of the order of injunction. He even denied the visit made by the Commissioner. The defendant contended that there was no landlord- tenant relationship. According to him, the father of the defendant was in possession as a tenant and he surrendered the building. The defendant also raised a contention that as on the date of institution of the suit, the defendant had transferred the property to a stranger and the stranger was in possession of the property. However, to whom the property was transferred was not disclosed by the defendant. 7. Before the court below, no oral evidence was adduced by any of the parties. The court below allowed all the applications referred to above. It was found that the defendant deliberately and wilfully violated the order of injunction and demolished the shed in the property and also removed the valuable articles. By the order impugned, the court below F.A.O.NOS.105 & 106 OF 2006 AND C.R.P. NO. 217 OF 1995 :: 4 :: ordered attachment of the property of the defendant. The court below also directed the defendant to be put in prison for a period of one month. The defendant was also directed to restore possession of the property to the plaintiff in the same condition as on the date of suit or in the alternative, the defendant was directed to pay a sum of Rs.1,98,000/- to the plaintiff for restoring the business in its original form. In I.A.No.832 of 1993, the court below issued a direction to the Deputy Superintendent of Police, Karunagappally to implement the order passed in all the interlocutory applications. The court below also extended the temporary injunction granted by it earlier till the disposal of the suit. 8. Learned counsel for the appellants in the Appeals and petitioners in the Revision contended that no opportunity was afforded by the court below to adduce evidence and this has caused much prejudice to them. The defendant is no more. Therefore, there is no question of implementing the order of detention in civil prison. The appellants (petitioners in Revision) are the widow and children of the defendant. They contend that an order to pay a huge amount was passed on no materials and without any evidence from the side of the plaintiff. It is also contended that the defendant was not afforded an opportunity to adduce evidence. F.A.O.NOS.105 & 106 OF 2006 AND C.R.P. NO. 217 OF 1995 :: 5 :: 9. Apart from the assertions made in the applications and the documentary evidence in the form of Commissioner's report and Amin's report, no evidence was adduced by the plaintiff to prove that the defendant demolished the building and illegally removed the machinery and articles. The defendant had denied the incident and contended that he did not violate the order of injunction. In these circumstances, the burden was heavy on the plaintiff to prove the allegations made against the defendant and to establish that the defendant had violated the order of interim injunction granted by the court below. On the basis of the pleadings and some documentary evidence, the court below concluded that the defendant had violated the order of injunction and, therefore, he is liable to be detained in prison and that his properties are liable to be attached. The defendant was also directed to pay a sum of Rs.1,98,000/-, in case he failed to restore the shed and machinery in their original position. It is true that the Amin's report shows that the order of injunction was attempted to be served on the defendant on 26.3.1993 itself and that the defendant was not inclined to accept the notice. It is also noticed by the court below that the order of injunction was received by the defendant on 27.3.1993. The Commissioner's report would indicate that the Commissioner inspected the property on 26.3.1993. There is nothing to disbelieve the report submitted by the Commissioner. However, the Amin was not examined to prove that he attempted to serve F.A.O.NOS.105 & 106 OF 2006 AND C.R.P. NO. 217 OF 1995 :: 6 :: the order of injunction on the defendant on 26.3.1993. It is also not proved by any evidence that the defendant demolished the building and the demolition took place after the defendant came to know of the order of injunction. There is complete dearth of evidence on material points. It is true that violation of an order of injunction should be seriously viewed and appropriate action should be taken against the defendant if he had violated the order of injunction. It is also true that the Commissioner's report and other circumstances brought out by the documentary evidence in the case show that the shed was demolished and that loss was caused to the plaintiff. At the same time, it is to be established that the defendant was responsible for the violation of injunction, when he specifically contended that he had not violated the order of injunction. No explanation is offered for non-examination of the plaintiff. There is also no reason why the Amin and Commissioner were not examined. I am not in a position to confirm the order passed by the court below in I.A.Nos.831 of 1993 and 832 of 1993. However, the order of injunction granted in I.A.No.576 of 1993 is liable to be confirmed. For the aforesaid reasons, F.A.O.Nos.105 of 2006 is dismissed and the order in I.A.No.576 of 1993 is confirmed. F.A.O.No..106 of 2006 is allowed and the order in I.A.No.831 of 1993 is set aside. C.R.P.No.217 of 1995 is allowed and the order in I.A.No.832 of 1993 is set aside. The F.A.O.NOS.105 & 106 OF 2006 AND C.R.P. NO. 217 OF 1995 :: 7 :: court below shall dispose of I.A.Nos.831 of 1993 and 832 of 1993 afresh after affording an opportunity to the parties to adduce evidence and to produce documents. No order as to costs. (K.T.SANKARAN) Judge ahz/ K.T.SANKARAN, J. ------------------------------------------- ------------------------------------------- F.A.O.NOS.105 & 106 OF 2006 and C.R.P.NO.217 OF 1995 JUDGMENT 8th February, 2008 -------------------------------------------