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Sudhir Namasudra and ors. Vs. Purnendu Kumar Das - Court Judgment

LegalCrystal Citation
Subject;Civil
CourtGuwahati High Court
Decided On
Case NumberCivil Revn. No. 18 of 1977
Judge
ActsCode of Civil Procedure (CPC) , 1908 - Order 39, Rules 1 and 2 - Order 43, Rule 1
AppellantSudhir Namasudra and ors.
RespondentPurnendu Kumar Das
Advocates:D. Purkayastha, Adv.
DispositionPetition allowed
Excerpt:
.....by judge below is well established. the court of appeal should not interfere with an order of the trial judge acting within his jurisdiction until the appellate court is clearly satisfied that the trial court was wrong. there is no doubt that the appellate court is the court of appeal on the question of fact as well of law but the judgment of the appellate court would be incomplete if it does not meet all the points on the basis of which conclusion was arrived at by the trial court and reverses the entire judgment after reversing only one point. 1; but did not touch the findings nos, 2 and 3. the said findings have strong backing of evidence and materials. 6. in the result, i hold that the appellate court has acted illegally and without jurisdiction in rendering the impugned order which..........order on appeal may be justified. the court of appeal should not interfere with an order of the trial judge acting within his jurisdiction until the appellate court is clearly satisfied that the trial court was wrong. if three grounds are set out for arriving at the conclusion, the appellate court shall be justified in reversing the conclusion reached by a trial judge only on reversal of the three grounds but not otherwise. the court of appeal cannot pick up only one point and after holding that the said ground is wrong cannot set aside the entire judgment and order of the trial court until it finds the other grounds to be unsupportable. there is no doubt that the appellate court is the court of appeal on the question of fact as well of law but the judgment of the appellate court.....
Judgment:

K. Lahiri, J.

1. The moot questions raised in the civil revision are:--

(A) What is the limit or extent of the jurisdiction of an appellate Court hearing an appeal under Order 43 Rule 1 (r) of the C. P. C.? Whether the appellate Court is competent to interfere with an order passed by the trial Court holding that there was no violation of an order of injunction merely because it arrives at a different conclusion on the same set of facts but without arriving at the conclusion that the findings arrived at by the trial Court were unreasonable, perverse or violative of any known principles of civil jurisprudence?

(B) Whether the judgment of the appellate Court can be sustained when the conclusion arrived at by the trial Court was grounded on several reasons and the appellate Court merely finds one of such grounds to be unreasonable and reverses the judgment and order of the trial Court?

(C) Whether a person not injuncted against by a civil court under Order 39 Rule 1 of the Code can be penalised for violation of an order of injunction?

2. The present petitioners were not parties in title suit No. 26 of 1970 instituted by the opposite party in which an order of injunction had been passed against the defendant Aswini (since dead). Late Aswini was injuncted not to enter into the suit land. There was no order rendered by the learned Addl. Subordinate Judge injuncting his servants, agents, workmen or relations in the manner set out in form No. 8 of Schedule 1, Appendix 'F' of the C. P. C. The forms given in the Appendix are statutory forms as enjoined under Order 48 Rule 3 read with Section 121 of the C. P. C. However, the forms are subject to alteration by the High Court under Section 121 of the C. P. C. Form 'P-18' has been prescribed by Gauhati High Court in Civil Rules and Orders Vol. II page 278. It clearly shows that a Court being satisfied can injunct a defendant and also other persons like agents, servants, relations etc. of the party. The indubitable position in the present case is that there was no order of injunction against the petitioners. Violation of an injunction is punishable under the Code itself. The nature of the proceeding and quality of evidence which are required to be proved and established may not be of the standard of criminal proceedings. Undoubtedly the proceedings are punitive in nature. It is an established law that allegations like fraud, undue influence establishment of violation of order of injunction being punitive proceedings require stricter proof than civil actions.

3. Be that as it may, in the instant case we are concerned with the question, as to whether persons not injuncted by an order of the court can be punished for violating a restrictive injunction. An injunction is a judicial process whereby a party is ordered to refrain from doing or to do a particular act or thing. It is well known, that the former is called 'restrictive injunction,' and the latter a 'mandatory injunction.' An injunction is an order of the Court. An interlocutory or interim injunction is to preserve matters 'in situ' until the case can be tried. In my opinion there cannot be a violation of an order of injunction by a person unless he is pointedly Injuncted not to do or to do certain things by a Court of law. In the instant case I have perused the order of injunction issued by the learned Addl. Subordinate Judge and find that the order did not contain any direction to the petitioners not to enter into the suit land.

As such, assuming, they had been in the land they are not liable for violation of the injunction.

4. In my opinion, when an appellate Court hears an appeal under Order 43 Rule 1 (r) it is an ordinary rule that findings arrived at by the trial court on appraisal of evidence recorded by him on noting the demeanour of the witnesses ought not to be disturbed unless the findings arrived at are such that it amounted to abuse of the process of the Court or caused injustice. The trial court has held that (1) the witnesses for the plaintiff were discrepant on all material particulars; (2) there was material variation of the case presented by the plaintiff in his application for violation of order of injunction and the case put forward in Court; (3) although on the own admission of the plaintiff there were independent and disinterested witnesses who had witnessed the alleged violation and whose names clearly appeared in the application of the plaintiff, they were not examined in court without assigning any reason. As such it has drawn an adverse inference against the plaintiff and disbelieved his allegation as to the alleged violation of the injunction by the petitioners and late Aswini.

5. The appellate Court below reversed the well reasoned order of the learned Addl. Subordinate Judge merely on the ground that in its own estimation the discrepancies were not material. The learned Judge did not arrive at the conclusion that the findings arrived at by the learned Addl. Subordinate Judge were not such that a reasonable person instructed in law could not have arrived at that conclusion. The learned Judge in appeal has merely touched the fringes of the discrepancies and did not take note of the material discrepancies found by the learned Addl. Subordinate Judge. I find that the learned Addl. Subordinate Judge has very rightly held the discrepancies to be material and the proved discrepancies or variations created grave doubt and established by preponderance of probability the case of the petitioners. That apart, the learned Judge reversed the finding of the learned Addl. Subordinate Judge without setting out his finding why the plaintiff did not examine the independent witnesses who were said to have been present at the time of the alleged breach of injunction. The learned appellate Court has not considered the material variation between the case presented by the plaintiff in his application and the case put forward by him and his witnesses during trial. Under these circumstances the learned Judge was not justified in setting aside the order of the trial Court when the latter on consideration of all admissible materials reached a well reasoned conclusion. The learned Addl. Subordinate Judge set out three reasons for rejecting the case of violation of injunction against the petitioners and Aswini. The learned appellate Court merely touched the fringes of one point and found it to be otherwise but could not come to the conclusion that the two other findings were unsupportable. As such the appellate judgment cannot be sustained. The law as to reversal by a Court of apoeal of an order made by Judge below is well established. The appellate Court is competent to set aside the order appealed against when it reaches a clear conclusion that there has been wrongful exercise of power by the trial Court and that no weight or no sufficient weight, has been given to relevant consideration. Then the reversal of the order on appeal may be justified. The Court of appeal should not interfere with an order of the trial Judge acting within his jurisdiction until the appellate Court is clearly satisfied that the trial Court was wrong. If three grounds are set out for arriving at the conclusion, the appellate Court shall be justified in reversing the conclusion reached by a trial Judge only on reversal of the three grounds but not otherwise. The Court of appeal cannot pick up only one point and after holding that the said ground is wrong cannot set aside the entire judgment and order of the trial Court until it finds the other grounds to be unsupportable. There is no doubt that the appellate Court is the Court of appeal on the question of fact as well of law but the judgment of the appellate Court would be incomplete if it does not meet all the points on the basis of which conclusion was arrived at by the trial Court and reverses the entire judgment after reversing only one point. In the instant case the appellate Court has reversed the finding on point No. 1; but did not touch the findings Nos, 2 and 3. The said findings have strong backing of evidence and materials. Under the circumstances, I have no hesitation in holding that the judgment of the appellate Court cannot be sustained. I have gone through the record and find that the findings Nos. 2 and 3 are based on materials on record.

As a result of the foregoing discussions I hold that the impugned appellate order cannot be sustained. Accordingly I reverse it and maintain the order of the trial Court.

6. In the result, I hold that the appellate Court has acted illegally and without jurisdiction in rendering the impugned order which has occasioned a failure of justice. I set aside the impugned order of the learned Addl. District Judge, Tripura in Misc. Appeal No. 3 of 1974. The petition is allowed. However, I make no order as to costs.


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