IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 21ST OCTOBER 2010 / 29TH ASWINA 1932 WP(C).No. 37772 of 2009(O) --------------------------------------- [E.P. NO.309/2008 IN OS.NO.274/1996 OF ADDL.MUNSIFF COURT, KOLLAM] .................... PETITIONER: ------------------- SASIDHARAN, S/O. KUMARAN, RESIDING AT KALAYIL VEEDU, KANNIMEL, KILIKOLLOOR, KOLLAM. BY ADV. SRI.JOHNSON GOMEZ. RESPONDENT: ---------------------- HARIDAS, KALAYIL VEEDU, KANNIMEL, KILIKOLLOOR, KOLLAM. BY ADVS. SRI.V.V.RAJA, SRI.M.T.SURESHKUMAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/10/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.37772/2009-O: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE E.A. NO. 188/2009 IN E.P. NO. 309/2009 ON THE FILE OF ADDITIONAL MUNSIFF COURT, KOLLAM. EXT.P.2: COPY OF THE E.A. NO. 189/2009 IN E.P. NO.309/2008 ON THE FILE OF ADDITIONAL MUNSIFF COURT, KOLLAM. EXT.P.3: COPY OF THE OBJECTION DTD. 28/07/2009 FILED BY THE PETITIONER BEFORE THE ADDITIONAL MUNSIFF COURT, KOLLAM. EXT.P.4: COPY OF THE DECREE DTD. 31/01/2000 IN O.S. NO.274/1996 OF ADDITIONAL MUNSIFF COURT, KOLLAM. EXT.P.5: COPY OF THE COMMON ORDER IN E.A. NO. 188/2009 AND E.A. NO.189/2009 IN E.P.NO. 309/2008 IN O.S. NO. 274/1996 ON THE FILE OF MUNSIFF COURT, KOLLAM. EXT.P.6: COPY OF THE COMMISSION REPORT DTD. 01/04/2009. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. HARUN-UL-RASHID,J. ------------------------------- W.P.(C). NO. 37772 OF 2009 ------------------------------- DATED THIS THE 21ST DAY OF OCTOBER, 2010 JUDGMENT Petitioner is the judgment debtor in E.P.No.309/08 in O.S.No.274/96 on the file of the Additional Munsiff's Court, Kollam. Respondent is the decree holder. This writ petition is filed seeking the following reliefs: “(i)Call for the records leading to the order dated 13/11/2009 in E.A.No.188/09 in E.P.No.309/08 in O.S.No.274/96 as evidenced by Ext.P5 and to quash the same; (ii) Call for the records leading to the order dated 13/11/2009 in E.A.No.189/09 in E.P.No.309/08 in O.S.No.274/96 as evidenced by Ext.P5 and to quash the same; (iii) To direct the Additional Munsiff's Court, Kollam to consider Exts.P1 and P2 afresh after affording a reasonable opportunity to the petitioner for adducing evidence in support of contentions that he has not wilfully violated Ext.P4 decree passed by the court.” -2- WP(C).No.37772/09 2. As per the decree passed the defendant was restrained from making any obstruction to the user of way by the plaintiff and making any alteration to it. The defendant was also directed to remove the gate put across the way. 3. The decree holder filed E.A.Nos.188/09 and 189/09 for prosecuting the judgment debtor for violating the decree and to restore the D schedule respectively. The court below held that there is clear violation of the decree passed in the case and hence the judgment debtor is liable to be prosecuted. The court also held that the petitioner is entitled to get restored D schedule in its original position. The learned Munsiff allowed both petitions and sentenced the judgment debtor to undergo imprisonment for one month and ordered attachment of his property. The judgment debtor is also directed to restore D schedule in its original position by closing the pit, failing which the petitioner is entitled to get closed the pit through the process of court at the expense of the judgment debtor. 4. The plaintiff in the suit is the holder of a decree, -3- WP(C).No.37772/09 which restrained the defendant from altering the lie and nature of the D schedule and to remove the obstruction caused therein. Execution Petition is filed for removing the obstruction. Advocate Commissioner was appointed to ascertain and report certain facts. 5. During the course of enquiry the judgment debtor removed the gate. It is alleged by the decree holder that the judgment debtor had dug a pit having width of 2 ft. and depth of 2.5 ft. to a length of 43 ft. on the east of D schedule by taking a portion of the way. The judgment debtor in his objection contended that the gate across the way has been removed as directed in the decree. He denied the allegation that he dug a pit by encroaching D schedule way. It is also contended that he did not make any alteration or obstruction to the D schedule way. According to him, 3 ft. way is still in existence and therefore the petitions are liable to be dismissed. The learned Munsiff observed that “definitely digging a pit on the east of the way would cause hindrance to the free user of it. As per the Commissioner's report, the judgment debtor dug pit outside his western compound wall and that is -4- WP(C).No.37772/09 against the spirit of the decree and there is clear violation of the decree passed in the case and hence the judgment debtor is liable to be prosecuted.” The above quoted observation of the court below leads to the finding that the judgment debtor is liable to be prosecuted. 6. Learned counsel for the petitioner/judgment debtor submitted that the learned Munsiff has not considered whether the petitioner has wilfully disobeyed the decree passed in the suit. The learned counsel pointed out that the direction contained in the decree regarding mandatory injunction has already been executed. It is also pointed out that the width of the pathway is 3 ft. The Commissioner has not reported that the alleged pit was dug within the said three feet. It is submitted that the learned Additional Munsiff has not entered into a finding that the petitioner has dug the pit within the said 3 ft. described in plaint D schedule to the decree and hence there is absolutely no violation of the decree passed by the Munsiff's court. 7. The learned counsel also pointed out that the learned -5- WP(C).No.37772/09 Munsiff ought to have found at the first instance that the petitioner has violated the decree and thereafter should have rendered an opportunity to restore the plaint property to its original position. According to him, it is only thereafter that the coercive measures of detention and attachment as provided under Order XXI Rule 32 of the Code of Civil Procedure shall be resorted. It is also pointed out that the learned Munsiff did not permit the judgment debtor to adduce evidence in the case before which the coercive measures of detention in civil prison and attachment of the property have been ordered. The learned counsel also submitted that the demolition of the compound wall on the eastern side of the pathway or digging any pit outside the width of three feet as described in D schedule of the decree cannot be treated as altering the nature and lie of plaint D schedule. I have extracted the observations and conclusions of the learned Munsiff which lead to the finding that the judgment debtor is liable to be prosecuted. The finding recorded by the court below did not elaborately deal with the question of violation of the decree. Whether there is violation and if there is violation whether -6- WP(C).No.37772/09 it is wilful violation etc. were not considered by the learned Munsiff. The learned Munsiff sentenced the judgment debtor to undergo imprisonment for one month and ordered attachment of his property. The grievance of the petitioner is that before passing the said order he was not given sufficient opportunity to adduce evidence in support of his contentions. Taking into account the facts and circumstances of the case and the contentions of the judgment debtor, I am of the view that the matter requires reconsideration. Therefore, the learned Munsiff is directed to re- consider the matter afresh and pass orders in accordance with law, after affording an opportunity to the parties to adduce further evidence, if any, and after hearing them. In the light of the stand taken by this Court, Ext.P5 order is set aside. Writ Petition is disposed of with the above direction. HARUN-UL-RASHID, Judge. kcv.