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Yenikokalva Gorla Narappa Vs. Yenikokalva Chinnareppa and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1947Mad98; (1946)2MLJ115
AppellantYenikokalva Gorla Narappa
RespondentYenikokalva Chinnareppa and ors.
Cases ReferredA. B. Gurumurthi Chetti v. Sella Perumal Pilled
Excerpt:
- - the defendants complained that in contravention of this undertaking the petitioner had dug a channel......given by the plaintiff is regarded as an injunction issued by the court restraining him from digging a channel, or whether his undertaking should be regarded as a part of the interim injunction issued against the defendant. in either view there would be an injunction, a breach of which would be punishable under order 39, rule 2, sub-rule (3).3. with regard to the second point, the petitioner is not entitled to raise a question of fact in this civil revision petition; but learned counsel for the petitioner argues that the question is one that can be raised in revision because the lower court has misconceived the scope of the undertaking. i do not think that this was the case. it appears from the judgment of the district munsiff that a commissioner reported that there was no channel.....
Judgment:

Happel, J.

1. The petitioner was the plaintiff in O.S. No. 60 of 1944 in the Court of the District Munsiff of Anantapur, which was a suit for a permanent injunction restraining the defendants from interfering with the plaintiff's right to take water to his land. While the suit was pending, the petitioner applied for an interim injunction against the defendants, and this was granted on an undertaking given by the plaintiff that during the pendency of the suit he would not dig a channel in the defendant's land. From the lower appellate Court's judgment the actual terms of the undertaking were:

I shall not dig a channel. Neither myself nor my servants shall dig a channel newly for taking water to my land.

The defendants complained that in contravention of this undertaking the petitioner had dug a channel. The District Munsiff held that the petitioner had contravened the undertaking and ordered his detention in a civil prison for a period of seven days. His order was upheld by the District Judge of Anantapur, on appeal.

2. Two arguments are put forward on behalf of the petitioner : (1) that as there was no injunction against the petitioner, there was no disobedience, and (2) that there was not in fact a violation of the undertaking. The first argument is not so much that there can be no disobedience but that there could be no disobedience to an injunction so as to render the petitioner punishable under Order 39, Rule 2, Sub-rule (3) of the Civil Procedure Code. I do not accept this contention and I agree respectfully with the decision of Varadachariar, J., in A. B. Gurumurthi Chetti v. Sella Perumal Pilled : AIR1936Mad651 , to which my attention has been drawn. That was a case of an undertaking given by a defendant, but the reasoning appears to me to apply. equally to a plaintiff. It would certainly be surprising, in a case where a temporary injunction has been granted against a defendant subject to an undertaking by the plaintiff, if the defendant could be punished under Order 39, Rule 2, Sub-rule (3) for a breach of the injunction whereas the plaintiff could not be punished under that provision of the Civil Procedure Code for a breach of the undertaking. In the circumstances of this case, it does not seem to me to matter whether the undertaking given by the plaintiff is regarded as an injunction issued by the Court restraining him from digging a channel, or whether his undertaking should be regarded as a part of the interim injunction issued against the defendant. In either view there would be an injunction, a breach of which would be punishable under Order 39, Rule 2, Sub-rule (3).

3. With regard to the second point, the petitioner is not entitled to raise a question of fact in this civil revision petition; but learned Counsel for the petitioner argues that the question is one that can be raised in revision because the lower Court has misconceived the scope of the undertaking. I do not think that this was the case. It appears from the judgment of the District Munsiff that a Commissioner reported that there was no channel on the land and in view of this report, any channel dug by the petitioner must be a contravention of his undertaking. He seems to have maintained that he was only repairing an old channel and not digging a new one. But, as there was no channel in existence at the time of his digging, it is impossible to call, whatever he did, ' repairing a channel'. He was digging a channel in contravention of his undertaking.

4. The petition must, therefore, be dismissed with the costs of the contesting respondents.


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