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Kochira Krishnan Vs. Joseph Desouza - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberC.M.A. No. 44 of 1985 and C.M.P. No. 5317 of 1985
Judge
Reported inAIR1986Ker63
ActsCode of Civil Procedure (CPC) , 1908 - Sections 151 - Order 39, Rule 2A
AppellantKochira Krishnan
RespondentJoseph Desouza
Appellant Advocate K. Vijayan and; N.N. Sugunapalan, Advs.
Respondent Advocate S. Ananthasubramonyan and;Govt. Pleader
Cases ReferredIn Antony v. Itoon
Excerpt:
.....in the above circumstances, i am satisfied that the action of the respondent in constructing the wall was totally unjustified and was violative of the undertaking given by him. the construction of the wall was done in breach of the undertaking, by misleading the police authorities and without any good faith......file counter-affidavits and reply affidavits. inasmuch as there were allegations against the sub-inspector of police, palluruthy, he too was directed to file an affidavit and make available the relevant records. though records were called for from the sub-divisional magistrate's court no further records were available in that court, as by that time, all the relevantrecords had been sent from that court to theoffice of the sub-inspector of police,pallurulthy. 9. it is clear from the records now availablethat the respondent had been attempting toput up a wall stealthily and without bona fides,by seeking the intervention of the authorities,including the sub-divisional magistrate. therespondent moved on 13-11-1984 a petitionthrough^ counsel, before the sub-divisionalmagistrate. the.....
Judgment:

Sukumaran, J.

1. The appeal is directed against ah order of the Court below by which an application, LA. No. 160 of 1985 for taking action under Order 39 Rule 2A of the Civil Procedure Code against the respondent therein had been dismissed by the Court in the light of the disposal of the appeal itself.

2. The present proceedings had their origin in a suit for injunction instituted by a kudikidappukaran against the landowner. According to the kudikidappukaran he was entitled to purchase 10 cents of land. Initially his application had been allowed. It is unnecessary to refer to the subsequent and somewhat strange happenings before the authorities under the Land Reforms Act, including the mystery involved in the disappearance of the files before the Land Tribunal. (The fact that no superior authorities have paid any attention to the disappearance of Government files is itself a disturbing feature). The extent which could be purchased by the kudikidappukaran is an issue now pending consideration before this Court in C.R.P. No. 2400 of 1983. The kudikidappukaran apprehended that if the landowner constructed a wall on the northern boundary of the kudikidappu, it would cut off areas which he could legitimately obtain if his claim of 10 cents is ultimately upheld. Along with the suit an application for interim injunction was moved. The defendant-landowner then undertook that he will not put up any wall till the disposal of the suit. The suit was ultimately dismissed in 1984. The kudikidappukaran then moved this Court foran injunction by an application filed in C.R.P. No. 2400 of 1983. Interim injunction was granted. Thereafter, an appeal from the trial Court decree was filed as A.S. No. Ill of 1984. An application for injunction was moved before the appellate Court also. A formal order became unnecessary in view of an undertaking given by the landowner not to construct the compound wall till the disposal of the appeal. The complaint is that the landowner constructed the compound wall on 18-1-1985, during the pendency of the appeal and violating the undertaking given before the Court.

3. It is admitted by the landowner that the appeal was disposed of only on 21-1-1985 and that the compound wall was constructed on 18-1-1985, before the disposal of the appeal. The excuse put forward is a consent given to landowner's counsel by the kudikidappukaran's counsel, 'at the time of final hearing of the appeal', for the construction. Along with the counter affidavit of the landowner, an affidavit of his counsel Sri James, is also produced. It is, however, evident from the records that the Court has not recorded any such development. The recording of the undertaking made by the Court remains unaltered. The averment that the counsel (Shri Sreekumar) for the kudikidappukaran agreed to the construction is strongly repudiated. Having regard to the materials on record, I hold that there was no such consent from counsel for kudikidappukaran, as pleaded by the landowner. This necessarily leads to the finding that the construction of the wall on 18-1-1985 was a clear contravention of the undertaking given by the landowner to the Court.

4. The above legal and factual position notwithstanding, the Court below dismissed the application on the sole ground that the appeal itself had been disposed of by that Court.

5. The point urged by Mr. Sugunapalan, counsel for the appellant is that the later disposal of the appeal is no ground whatever for not dealing with and discussing the serious complaint voiced in LA. No. 160 of 1985. This contention is fully justified. The legal position is well established. The Privy Council made the position clear in Eastern Trust Company v. Makenzie Mann & Co. Ltd., AIR 1915 PC 106(2), when it observed at page 110;

'An injunction, although subsequently discharged because the plaintiffs case failed, must be obeyed while it lasts;.......'

If there is a disobedience of the order of injunction, the aggrieved party can seek reliefs by invoking the inherent power of the Court under S. 151 of the Civil Procedure Code. See Magna v. Rustam, (AIR 1963 Raj 3). The Court is concerned only with the question whether there was a disobedience of the order of injunction and not with the ultimate decision in the matter, (see Gobinda v. Chakradhara, AIR 1971 Orissa 10).

6. Any action by which the process of the Court is attempted' to be thwarted has to be viewed seriously. If an order of injunction is violated, that violation has to be dealt with sternly and seriously, for, otherwise, it will undermine the very basis of the Rule of Law. There is no difference, whether the violation pertains to an order, or to an undertaking made before a Court of law, which too will have as much effect as an interim injunction in such circumstances. The Court below disposed of such a serious complaint without considering it on merits. In so doing, it has erred; that error has to be corrected.

7. On merits, there cannot be any doubt that an undertaking had been given by the respondent before the Court below during the pendency of the appeal before that Court. The materials indicate that that undertaking was not honoured during the pendency of the appeal. A departure from the undertaking so given to the court below is therefore established. That action is punishable.

8. Along with the appeal, C.M.P. No. 5317 of 1985 was filed before this Court for taking action against the respondent. Having regard to the seriousness of the allegations contained therein and the necessity to have corrective action which would restore the position of the parties prior to the violation of the undertaking, the parties were directed to file counter-affidavits and reply affidavits. Inasmuch as there were allegations against the Sub-Inspector of Police, Palluruthy, he too was directed to file an affidavit and make available the relevant records. Though records were called for from the Sub-Divisional Magistrate's Court no further records were available in that Court, as by that time, all the relevantrecords had been sent from that Court to theoffice of the Sub-Inspector of Police,Pallurulthy.

9. It is clear from the records now availablethat the respondent had been attempting toput up a wall stealthily and without bona fides,by seeking the intervention of the authorities,including the Sub-Divisional Magistrate. Therespondent moved on 13-11-1984 a petitionthrough^ counsel, before the Sub-DivisionalMagistrate. The Magistrate made the followingendorsement: &

'Forwarded to the Section 1 of Police, Palluruthy for urgent necessary action. If there is any direction from a Civil Court in favour of the petitioner, the orders may be implemented (by hand) D/- 13-11-1984. Sub-Divisional Magistrate, Fort Cochin.'

The original of the petition with the endorsement of the Magistrate thereon was despatched to the police by hand through the same counsel (as appears to be the practice in such cases, as admitted by both sides and the. Government Pleader) For reasons which are not easily discernible, the respondent kept: with him the petition (which contained the' direction of the Magistrate). It was presented before the Sub-Inspector of Police nearly two months later, on 14-1-1985. The Police appears to have been taking action pursuant to that. The appellant herein then filed a-petition dated 16-1-1985, pointing out the unauthorised attempt of the landowner to construct the compound wall, in violation of the undertaking given to the civil Court Specific reference was made to the details of such undertaking as given by the respondent This petition too was forwarded by the Magistrate by her endorsement dated 16-1-1985 to the police for 'urgent necessary action'. The Sub-Inspector of Police apparently insisted on the production of the order of the Court containing the undertaking and directed the appellant to convince the Sub-Inspector about the same. It is the case of the appellant that he had done so after having obtained an urgent certified copy for that purpose. On this aspect there is controversy. According to the Sub-Inspector, the necessary orders were not made available to him. It is, however, a fact that the compound wall was constructed by the respondent on the basis of the police help rendered in the matter.

10. Though two affidavits have been filed by the Sub-Inspector of Police disputing the material averments relating to the production before him of the certified copy of the order evidencing the undertaking, I do not want to specifically pronounce on that aspect The learned Government Pleader was at pains to explain the part played by the Sub-Inspector of Police. Inter alia, it was pointed out that the Sub-Inspector could not possibly appreciate fully the implications of all the relevant orders of the Magistrate and the Civil Courts. The Government Pleader assured this Court that the Sub-Inspector had not intended in any manner to help a party by overlooking the orders of a Court or an undertaking given to the Court In view of the stand so taken by the learned Government Pleader, I do not intend to pursue the matter further as- regards the acts complained of against the Sub-Inspector; It must, however, be pointed out that the Sub-Inspector should have been more careful in a, matter like this. In Mathew v. Kuruvilla, 1983 Ker LT 104,1 Iiad emphasised the duty of the police not to be swayed by extraneous considerations in the discharge of their onerous and responsible duties. In particular, the provisions of the Police Manual dealing with the principles of police conduct had been referred to therein. A duty to enforce the law firmly and impartially, without fear or favour, malice or vindictiveness is cast on them under the aforesaid provisions. Paragraph 87(c) of the Police Manual emphasises that 'the police should not usurp or even seem to usurp the functions of the Judiciary and sit in judgment ' on cases.'

11. As regards the respondent, however, there could possibly be no defence whatever. He must be aware of the undertaking. The existence had been highlighted even in the representation of the appellant made before the Magistrate, which had been transmitted to the Sub-Inspector of Police. The only excuse attempted is that 'there had been an' oral variation in the light of an assurance by counsel for the appellant That is not an acceptable plea. When there is an undertaking noted by a Court of law, a variation should be reflected by a clear and cogent recording to that effect by the Court itself. There is also the fact that the allegation about the appellant's, counsel having agreed to the construction of the wall is denied on behalf of the appellant.

12. In the above circumstances, I am satisfied that the action of the respondent in constructing the wall was totally unjustified and was violative of the undertaking given by him. The only further question is about the action that should be taken against him.

13. In Antony v. Itoon, C.R.P. No. 22^8 of 1982, I had taken the view that the court will insist upon a punctilious observance of the orders of the Court by a party to the case I had found the person-guilty of the violation of the order in that case and ordered his detention in civil prison. The finding has been upheld by the Supreme Court, though in relation to the direction regarding detention there was a modification, with appropriate directions for meeting the costs of the party affected by the violation of the order of Court

14. In the present case, having regard to the age of the party and other circumstances, I do not intend to give a direction for his detention in civil prison. That, however, does not mean that the appellant who had been complaining about the gross violation of the undertaking given to the Court and has been knocking at the door of the Magistrate and of the Sub-Inspector for reliefs, should not be granted due reliefs. As observed by the Patna High Court in State of Bihar v. sha Devi, AIR 1956 Pat 455, if a court comes to a conclusion that a party by disobeying an order of a Court has done something for its own advantage to the prejudice of the other party, it is open to the Court under its inherent jurisdiction to bring back the parties to a position where they originally stood as if the order passed by the Court has not been contravened. The principles underlying the exercise of such a power by the Court is that no party can be allowed to take advantage of his own wrong in spite of an order to the contrary passed by the Court. I have modulated the relief in the appeal taking into consideration the above aspects. The construction of the wall was done in breach of the undertaking, by misleading the police authorities and without any good faith. I would therefore direct that the respondent shall, within two weeks from today, demolish the compound wall to the extent it abuts the kudikidappu land of the appellant. It will be open to the appellant to move for appropriate other directions or clarifications, in case this direction is not complied with by the respondent.

15. The appeal and the C.M.P. are disposed of as above. The appellant will have his costs here and in the Court below.

16. Before parting with the case, it has become necessary to advert to a practice which exists in the Court of the Executive 1st Class Magistrate, of forwarding the original of the petition submitted before it along with the endorsement of the Magistrate direct to the Sub-Inspector. It was submitted at the Bar that this practice creates avoidable hardship to the parties. No copy of the petition, it is submitted, is generally kept in the office of the Magistrate. A person who requires a certified copy of such a petition is completely helpless to get it from the Magistrate's Court For more reasons than one, it is not reasonably practicable to obtain a copy of, or even information relating to, such petitions filed before the Magistrate, once they are despatched to the police authorities. The facts of the present case show how the petition with the endorsement of the Magistrate had been retained with the party, apparently to suit the time at which it could be presented before the police. It is desirable that these complaints are looked into seriously. A copy of this judgment will be sent to the Executive 1st Class Magistrate, Fort Cochin, for taking necessary and appropriate steps in the matter.


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