IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 16TH NOVEMBER 2011 / 25TH KARTHIKA 1933 CRP.No. 341 of 2007() --------------------- CMA.5/2005 of SUB COURT, MUVATTUPUZHA I.A.164/2004 IN CS.3/2003 of MUNSIFF COURT, KOLENCHERRRY .................... REVN. PETITIONER(S): --------------------- PAUL, S/O.THANKACHAN, AGED 25, OPPAMATTATHIL HOUSE, KADAMATTOM KARA,AIKKARANADU NORTH VILLAGE. BY ADV. SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN SRI.R.SURAJ KUMAR SMT.GEETHA P.MENON SRI.A.C.THOMAS ADHIKARAM RESPONDENT(S): --------------- M.N.PRAKASH , S/O.NARAYANAN, AGED 41, MANAYATHU HOUSE, KADAMATTOM KARA, AIKKARANADU NORTH VILLAGE. THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/11/2011, THE COURT ON 16.11.2011 PASSED THE FOLLOWING: M.L.JOSEPH FRANCIS, J. ----------------------------------------------- C.R.P. No.341 of 2007 ----------------------------------------------- Dated 16th November, 2011. O R D E R This Civil Revision Petition is filed by the respondent/defendant in I.A.164/2004 in C.S.No.3/2003 on the file of Munsiff Court, Kolenchery. The respondent herein is the petitioner/plaintiff in that I.A., which was filed by him under Order 39 Rule 2A of Civil Procedure Code for the prosecution of the respondent/defendant for violation of an interim injunction order passed by the court on 29.10.2003. 2. The case of the petitioner/plaintiff is that he had obtained an ad-interim injunction restraining the petitioner herein from making any construction in the plaint B schedule property in such a manner as aerially trespassing into the plaint A schedule property and compound wall and in such a manner as allowing flow of water from the building under construction in plaint B schedule property into the plaint A schedule property and compound wall of A schedule property and from filling and reclaiming the thodu and ridge on the northern side of plaint B schedule property and from constructing the building in plaint B schedule property in such a manner as to aerially trespass into CRP 341/07 2 the thodu and ridge portion, that the injunction order has been served on the petitioner herein on 29.10.2003, that the petitioner herein was aware of the injunction order, that on 23.4.2004 the petitioner herein constructed the building in plaint B schedule property aerially trespassing into plaint A schedule property and compound wall, that he filled and reclaimed the thodu and ridge on the northern side of the plaint B schedule property and that the construction of the main slab of the building in plaint B schedule property aerially trespasses into the thodu and ridge portion, that the above construction is made in violation of the injunction order, and that therefore, appropriate action is liable to be taken against the petitioner herein by detaining him in civil prison and attaching and selling his property. 3. The petitioner herein resisted the application contending that he did not do anything in violation of the injunction, that the Commission report to the contra is a mistake of fact, that the thodu and ridge on the northern side of the plaint B schedule property had got naturally reclaimed due CRP 341/07 3 to soil and sand flowing into the thodu during the rainy season, that the thodu had stood partly reclaimed even on the date of institution of the suit without any intervention from the petitioner herein and that he had not done any overt act in violation of the injunction order. The petitioner herein thus prayed for dismissal of the application. 4. In that petition, no separate evidence was adduced from both sides over and above the evidence adduced from either side in the suit and that petition was considered along with the suit. The learned Munsiff, on considering the evidence found that there is violation of the interim injunction order by the respondent/defendant to the extent that the building in plaint B schedule property was constructed in such a manner as aerially trespassing into the thodu and ridge on the northern side of the plaint B schedule property and ordered that the respondent/defendant is to be detained in civil prison for a period of 15 days for the violation of the injunction order in I.A.328/03 in C.S.3/2003. Against that order, the respondent/defendant filed C.M.A.5/2005 before the Sub Court, CRP 341/07 4 Moovattupuzha, which was dismissed. Against that judgment, the appellant/defendant filed this Civil Revision Petition. 5. Heard the learned counsel for the revision petitioner. 6. At the time of argument, learned counsel for the revision petitioner raised the following contentions : The courts below have failed to exercise jurisdiction vested in them by law in as much as they have not considered the commission report in the proper perspective and they have failed to note the mistake of fact in the commission report. The courts below have failed to see that even in the plaint there is no specific averment regarding the length and width of the thodu and ridge, and the thodu and ridge are not separately scheduled to the plaint. In that view the measurement given by the Commissioner cannot conclude that there is aerial trespass of the main slab of the building in plaint B schedule property over the thodu. The courts below failed to see that there is no evidence in the case establishing disobedience of the injunction granted. The courts below ought to have seen that before CRP 341/07 5 proceeding under Order 39 Rule 2A C.P.C., it has to be established that there has been calculated and intentional violation of the injunction issued by the court. It is submitted that there is no evidence in the present case establishing that the petitioner has intentionally disobeyed the order of injunction. 7. Learned counsel for the revision petitioner produced copy of the judgment in C.S.3/2003 on the file of Munsiff Court, Kolenchery dated 21.12.2004. That suit was dismissed by the Munsiff Court, Kolenchery on finding that the plaintiff is not entitled to get an injunction sought for. In that judgment, it is stated that even though the construction of the building in the plaint B schedule property is in such a manner as aerially trespassing into the thodu and the ridge portion is denied by DW1, the Commissioner has reported in Ext.C2 report that main slab of the building in the plaint B schedule property is concreted in such a manner as aerially trespassing into the thodu and ridge on the northern side of the plaint B schedule property. Considering the fact that the plaintiff has CRP 341/07 6 not established any legal right over the said thodu and ridge, there is no justification in granting an injunction, even as against the construction in the plaint B schedule property in such a manner as aerially trespassing into the thodu and ridge portion. 8. Violation of an interim order is punishable under the Civil Procedure Code and since the proceedings is punitive in nature, it requires stricter proof than in a civil proceeding. As long as interim injunction is in force, the party against whom it is passed is bound to obey it. If he disobeys it, he is liable for punishment, even if the temporary injunction was set aside at the time of final disposal of the suit. As the order under Order 39 Rule 2A of the C.P.C. is of penal character, it is necessary to record that the breach of the order of injunction was made with the intention to defy the authority of the court issuing injunction. If it was not with the intention and was in good faith, the party is not liable to be punished. In this case, there is no evidence to show that the respondent/defendant intentionally violated the interim injunction order. Even if the construction of CRP 341/07 7 the building is aerially trespassing into the thodu and the ridge on the northern side of the plaint B schedule property, that has not affected the rights of the petitioner/plaintiff as he has no right over the thodu and ridge. Therefore, I am of the view that no action for violation of the interim injunction order is called for, considering the facts and circumstances of the case. Accordingly, this Civil Revision Petition is allowed. The order in I.A.164/04 in C.S.3/2003 on the file of the Munsiff Court, Kolenchery is set aside and that petition is dismissed. There is no order as to costs. Sd/- M.L.JOSEPH FRANCIS, JUDGE. tgs (True copy) P.S. to Judge.