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Kanakku Kumara Pillai Thanu Pillai Vs. Mathevan Mathevan of Aravamkadu Karakkattu Madathu Veedu and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 818/1958
Judge
Reported inAIR1963Ker179
ActsCode of Civil Procedure (CPC) , 1908 - Sections 96 and 107 - Order 39, Rule 1
AppellantKanakku Kumara Pillai Thanu Pillai
RespondentMathevan Mathevan of Aravamkadu Karakkattu Madathu Veedu and anr.
Appellant Advocate G. Viswanatha Iyer, Adv.
Respondent Advocate C.M. Ramachandra Menon and; R. Narayana Pillai, Advs.
DispositionAppeal allowed
Cases ReferredState of Bihar v. Usha Devi
Excerpt:
.....of the building in question is not an improvement, and for which therefore compensation need not be..........15 cochin lr 167 and said:'under the law as enacted in the travancore-cochin compensation for tenants improvements act, 1956, a tenant is entitled to make legitimate improvements up to the date of actual eviction and if he was restrained by an order of the court from making improvements he is all the same entitled to the value of improvements effected in contravention thereof, even though he may be liable to the penalties for disobedience of the order of injunction'. the statement in 15 cochin lr 167 is:'the next ground urged is that a portion of the building was constructed after the service of injunction in this case and that at any rate, no compensation should be paid for that portion. now, as has been found already, it was a legitimate improvement by the 2nd defendant that was.....
Judgment:
ORDER

Madhavan Nair, J.

The appellant herein is the plaintiff in a suit for redemption of a mortgage; and the appeal concerns only the compensation for improvements and damages for waste claimed mutually. The complaints are firstly, that the Court below has ordered payment of compensation to the defendants for buildings put up by them in violation or an Injunction prohibiting their construction; and secondly, that the Court below has declined to investigate the claim of the appellant for damages for waste (cutting old trees) committed by the defendants during the pendency of the appeal in the Court below on the ground 'No issue regarding waste had been raised in the trial of the suit'.

As regards the waste, the observation of the court below is prima facie unsustainable. No party can be blamed for not moving the trial Court concerning claims that arose subsequent to its decision in the case. The commissioner deputed by the tower appellate Court Inspected the property on January 18, 1953, and submitted his report In Court on February 9, 1953, but in the meanwhile the appeal was disposed of by the District Judge on January 27, 1953. The Commissioner's report, Ext. H, shows that when he had been to the property on January 18, 1953, the com-mission of waste was in progress, to wit, two jack trees whose trunks were big enough to be sawn into planks had been shaven of their branches and made ready for telling. In the above circumstances the question Of waste oughtto have been investigated when the Court proceeded to fix the price of redemption in the case. (Rest of the order of reference is not printed as being not material for reporting.)

OF FUL BENCH

Menon, C.J.

1. The plaintiff in O. S. No. 316 of 1121 or the Court of the Principal District Munsiff of Neyyattinkara, a suit for redemption, is the appellant in this Second Appeal. He was the respondent in A. S. No. 719 of 1956 of the Court of the Principal subordinate Judge of Trivandrum, the appeal from which this second Appeal arises.

2. During the pendency of the suit an injunction was issued by the trial Court prohibiting the respondents from making improvements on the property. In spite of the order and in deliberate violation thereof they constructed a building on the properly. The question for determination is whether the learned Subordinate Judge was right when he directed that the appellant should pay its value as part of the price of redemption.

3. The District Munsiff held that the respondents were not entitled to the value of the building as it was erected in contravention of the order of injunction, and that they should remove it. The Subordinate judge came to an opposite conclusion on the basis of Raman Gangadharan v. Kochukunju Lekshmanan, 1957 Ker LT 12/4: 1958 Ker LJ 1: (AIR 1958 Ker 105).

4. in 1957 Ker LT 1274: 1958 Ker LJ 1 : (AIR 1958 Ker 105) this Court followed 15 Cochin LR 167 and said:

'Under the law as enacted in the Travancore-Cochin Compensation for Tenants Improvements Act, 1956, a tenant is entitled to make legitimate improvements up to the date of actual eviction and if he was restrained by an order of the Court from making improvements he is all the same entitled to the value of improvements effected in contravention thereof, even though he may be liable to the penalties for disobedience of the order of injunction'.

The Statement in 15 Cochin LR 167 is:

'The next ground urged is that a portion of the building was constructed after the service of injunction in this case and that at any rate, no compensation should be paid for that portion. Now, as has been found already, it was a legitimate improvement by the 2nd defendant that was being effected when, by reason of the plaintiffs' misrepresentation, the Court was led to issue the injunction in question. The prohibition to making such improvements was therefore improper. Even in spite of its impropriety the violation of the order of Injunction may lead to appropriate penal consequences. But the declaration or the work to be not an improvement, in spite of its character to the contrary, or the deprivation of the tenant or the legitimate compensation therefor, cannot be regarded as falling among such consequences. A tenant has the right to make legitimate improvement up to the date or the actual eviction from the property. That being so to issue an injunction of the present nature to the effect contended for by the appellants would be an arbitrary and oppressive form of unjustly restricting the rights of the tenant. We do not therefore find any good ground for holding that any portion of the building in question is not an Improvement, and for which therefore compensation need not be paid. The lower Court's decision is therefore right'.

5. Our attention was also invited to Parvathi Amma v. Akkalath Kalanthar, AIR 1944 Mad 262. In that case the Court said:

'The other contention put forward in this second appeal is that despite the fact that the appellant disobeyed the injunction of the Court, she Is nevertheless entitled to improvements up to the date of ejectment. The wording of Sections 5, 6 and 7 Malabar compensation for Tenants Improvements Act, has been cited; and it appears that the tenant is entitled to compensation for all Improvements made up to the date of dispossession, even though some of the improvements may have been made after the suit for ejectment had been filed and even after a decree had been passed. It appears from a reading of these sections that the Court has no discretion in the matter. It must order compensation for improvements made up to the date of dispossession to be paid to the tenant; and it cannot refuse to order compensation to be paid because of some disobedience of an order of the Court.'

6. We take the view that the proper approach to the problem is not what is indicated in these decisions; but something different. It is not disputed that the building concerned is an improvement and that under normal circumstances its value will be a part of the price of redemption. The question for determination is whether the position is not entirely different when the improvement was effected in violation of an order of injunction.

7. This aspect of the question arose for direct consideration in State of Bihar v. Usha Devi, AIR 1956 Pat 455. The Court said:

'If a Court comes to the conclusion that an order passed under Order XXXIX, Rule 1 or 2 has been disobeyed and lay a contravention of that order the other party in the suit has done something for its own advantage to the prejudice of the other party, it Is open to the Court under inherent jurisdiction to bring batch the party to a position where it originally stood as if the order passed by the Court has not been contravened. The exercise 01 this inherent power vested in the Court is based on the principle that no party can be allowed to take advantage of his own wrong in spite of the order to the contrary passed by the Court'.

8. We think that payment should be denied for improvements effected in violation of an order of injunction. As stated in American Jurisprudence, Vol. XXVIII, Page 504.

'an act done in violation of injunction, being unlawful, is to be deemed ineffectual and unavailable as to the purpose intended as though it had not been done'.

9. It is the duty of a person bound by an order of injunction to obey its command. Disobedience will provide the foundation for a punishment; not the basis for a claim.

10. It follows that the respondents are not entitled to the value of the building erected in violation of the order of injunction and that the trial Court's decision on the subject should be restored. There is an allegation of waste by the respondents. That matter has not been investigated, and there is no doubt that it should be investigated as stated in paragraph 2 of the order of reference. We decide accordingly.

11. The appeal is allowed as above. In the circumstances of the case, however, there will be no order asto costs in this Court.


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