IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 13TH SEPTEMBER 2010 / 22ND BHADRA 1932 WP(C).No. 11974 of 2009(O) -------------------------- CMA.9/2008 of SUB COURT, PERUMBAVOOR OS.376/2003 of MUNSIFF COURT, PERUMBAVOOR (IA.1292/2004) .................... PETITIONER: --------------- P.S.MANI, AGED 53, S/O.SANKARAN, PANATTU HOUSE, AIMURY KARA, KOOVAPPADY VILLAGE, KUNNATHUNADU TALUK. BY ADV.MR.V.RAJENDRAN (PERUMBAVOOR) MR.GEORGE VARGHESE KIZHAKKAMBALAM RESPONDENT: --------------- GANGADHARAN, AGED 57, S/O.VELAYUDHAN, MADAPPURAM HOUSE, AIMURY KARA, KOOVAPPADY VILLAGE. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 11974 of 2009(O) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: ORDER IN I.A.NO.254/03 IN O.S.NO.376/03 DTD. 24.3.04. EXT.P2: PETITION FILED BY THE RESPONDENT BEFORE THE MUNSIFF COURT, PERUMBAVOOR AS I.A.NO.1292/04 DTD.28.6.04. EXT.P3: OBJECTION FILED BY THE PETITIONER TO THE PETITION DATED 24.7.04 FILED BEFORE MUNSIFF COURT, PERUMBAVOOR. EXT.P4: REPORT OF THE COMMISSIONER DTD.12.7.04. EXT.P5: SKETCH ATTACHED TO EXT.P4 REPORT. EXT.P6: PHOTOGRAPH OF THE BUILDING OF THE PETITIONER AFTER THE REPAIR WORKS. EXT.P7: ORDER IN I.A.NO.1292/04 IN O.S.NO.376/03 DTD.18.7.06 OF MUNSIFF COURT, PERUMBAVOOR. EXT.P8: ORDER IN C.M.A.NO.9/08 DTD.20.6.08 OF SUB COURT, PERUMBAVOOR. RESPONDENT'S EXHIBITS: NIL ..... // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.11974 Of 2009 ---------------------- Dated this the 13th day of September, 2010. J U D G M E N T The writ petition is filed seeking the following reliefs: “i. To call for the records leading to Ext.P8 and quash the same by issuing a writ of certiorari. ii. To pass appropriate orders setting aside Ext.P7 order.” 2. Petitioner is the defendant in O.S.No.376 of 2003 of the Munsiff Court, Perumbavoor. Respondent is the plaintiff. Suit was filed by the respondent herein for a permanent prohibitory injunction restraining the petitioner from constructing a building in the plaint schedule property. The trial court granted an interim order of injunction restraining the petitioner from constructing a new building in the property, but permitted to do the repair and maintenance work. Ext.P1 is the order. 3. It is averred in the writ petition that after Ext.P1 order, the petitioner completed repair and maintenance work to the existing building. It is stated that what has been done was that he removed wooden parts such as the rafters etc. of the roof W.P(C).No.11974 Of 2009 ::2:: as well as plastering the walls and constructed an internal wall inside the room of the building. It is further stated that however, the respondent filed a petition before the court below under Order XXXIX Rule 2(A) of the CPC stating that the petitioner had violated the directions contained in Ext.P1 order. Ext.P2 is the petition filed by the respondent and Ext.P3 is the objection filed by the petitioner. The report and sketch of the commissioner is marked as Ext.P4. The respondent adduced evidence in support of his contentions. PWs 1 & 2 were examined on his side. DW2 was examined on the side of the defendant. Exts.C1, C1(a), C2 & C(a) were marked. The trial court examined the question as the whether the petitioner had violated the order in I.A.No.2204 of 2003. After examining the materials on record including the report of the commissioner the court observed that though the petitioner contended that he had made only the maintenance work of the roof, it is evident from Ext.C2 that he has made construction in the paint schedule property. The court concluded that the respondent in the I.A violated injunction order and therefore liable to be prosecuted. The trial court ordered to W.P(C).No.11974 Of 2009 ::3:: detain the petitioner in the civil prison for four months. Ext.P7 is the order passed by the trial court. In the appeal preferred by the petitioner in C.M.A.No.9 of 2008 the lower appellate court confirmed the finding of the trial court that the petitioner had violated the order of injunction. The lower appellate court after finding that the petitioner had violated the order of injunction, considered the question as to whether the sentence imposed is disproportionate to the nature of violation. 4. The counsel for the petitioner pointed out before the lower appellate court that the petitioner had effected only minor repairs and that the repairs were made not with an intention to violate the order of injunction. According to the petitioner he had only replaced the dilapidated roof of the building with a new one. Ext.P6 is the photograph of the residence of the petitioner. It is submitted by the counsel for the petitioner that he is an autorikshaw driver and he is a person with no formal education. The lower appellate court though found that the petitioner had violated the order of injunction noticed the fact that the work done by him is only minor repairs to the building and that he did W.P(C).No.11974 Of 2009 ::4:: not make any structural alteration to the building. The lower appellate court found that the punishment imposed is disproportionate to the offence committed and therefore the sentence is modified and detention in civil prison is limited to two days. 5. The respondent/plaintiff did not appear either in person or through a lawyer. The learned counsel for the petitioner submitted that the petitioner is an ailing man and has affected with permanent disablement. The counsel also submitted that the trial court having found that the petitioner has only effected minor repairs to the building the sentence of imprisonment should have been set aside by the lower appellate court. The counsel also submitted that after Ext.P8 order passed by the lower appellate court the suit stands dismissed. Considering the fact that the act done is only minor repairs to the building, that the petitioner is a disabled man having no formal education and he is eking out his livelihood as an autorikshaw driver and the further fact that he is maintaining a family consisting of his wife and children, I find in the interest of justice, W.P(C).No.11974 Of 2009 ::5:: detention in civil prison shall be modified and the sentence shall be confined to fine. 6. Accordingly, Ext.P8 is modified without interfering with the finding that the petitioner had violated the order of injunction. This Court order that the petitioner shall deposit a fine of Rs.3,000/- before the trial court within a period of six weeks from today. If the fine is not deposited within the time prescribed, Ext.P8 order shall stand revived. Writ petition is disposed of as above. HARUN-UL-RASHID, Judge. bkn/-