Rule 2-A of Order XXXIX C.P.C - Any finding, which is to result in drastic consequences provided for under Rule 2-A of Order XXXIX C.P.C., must be on the basis of oral and documentary evidence. Even otherwise, Rule 2-A of Order XXXIX C.P.C., provides for two consequences, viz., the attachment of property of the person found to have violated the order of injunction, and his being detained in civil prison. It does not provide for any other measure or alternative. The Court does not have any liberty or discretion to choose something in between, or to order something, which is not provided for. The Tribunal, however, has chosen to direct the demolition of a structure. Such a course does not at all fit into Rule 2-A. Any provision of law, relating to procedure, particularly the one that provides for punishment, must be construed strictly. When the provision contemplates a specific measure, the Court cannot take recourse to a different one, by invoking that provision.


THE HON'BLE MR JUSTICE L.NARASIMHA REDDY          

Civil Revision Petition No.310 of 2012
       
06.09.2012

R.Madan Mohan Guptha  

Mohd.Sharfuddin

Counsel for petitioner: Sri D.Vijaya Chandra Reddy

Counsel for Respondent :  Sri M.T.Ghori

<GIST:

>HEAD NOTE:  

?Cases referred

ORDER:
       
        The 1st respondent filed O.S.No.39 of 2011 before the A.P. State Wakf
Tribunal, Hyderabad, against the petitioner and respondents 2 and 3, for the
relief of perpetual injunction, in respect of Acs.6.26 guntas of land in survey
No.599 of Mankhal Village, Maheshwaram Mandal, Nalgonda District.  It was
alleged that the property belongs to a wakf and that the 1st respondent is an
interested person.  It was alleged that the petitioner herein, who was a
Sarpanch of the village, has made attempts to occupy the land, as part of his
real estate activity.

        I.A.No.159 of 2011 was filed under Order XXXIX Rules 1 and 2 of the Code
of Civil Procedure (CPC), for temporary injunction.  The Tribunal issued notices
to the petitioner and respondents 2 and 3.  The petitioner filed a counter,
opposing the I.A.  He pleaded that the land in question does not belong to wakf,
and on the other hand, it belong to Government.  It is also stated that way back
in the year 1985, the land was divided into plots and pattas were distributed to
as many as 130 persons.  A godown was also said to have been constructed with
the aid of the World Bank, in the year 1985.  The Tribunal passed an order of ad
interim injunction on 17.05.2011.

        The 1st respondent filed I.A.No.324 of 2011 under Rule 2-A of Order XXXIX
CPC, stating that the petitioner violated the order of
ad interim injunction and brought into existence, construction over the suit
schedule property. The Tribunal issued notice and the petitioner filed a counter
denying the allegations. Through its order, dated 07.12.2011, the Tribunal
directed the dismantling of the structure of the community hall, on the ground
that the construction was made in contravention of the orders of temporary
injunction.  The petitioner challenges the said order.

         Heard Sri D.Vijaya Chandra Reddy, learned counsel for the petitioner, and
Sri M.T.Ghori, learned counsel for the 1st respondent.

        The revision arises out of an order passed in an application filed under
Rule 2-A of Order XXXIX of C.P.C.  Whenever an order of temporary injunction is
passed, the respondent, in such an application, is under obligation to obey the
same.  This is so, particularly when the order is passed after hearing both the
parties.

        The remedy provided for in Rule 2-A of Order XXXIX C.P.C., is
extraordinary in nature.  If it is established that the injunction granted under
Rules 1 and 2 of Order XXXIX C.P.C., is disobeyed, The Court may direct
attachment of the property of the person, held guilty and may also order such
person to be detained in the civil prison, for a term not exceeding three
months.  When such drastic consequences are provided for, the findings, as to
violation, must be based upon unimpeachable evidence.

        In the instant case, the temporary injunction was in relation to an item
of immovable property of Acs.6.26 guntas.  A specific plea was raised by the
petitioner that the land was divided into plots of 121 square yards, each, and
the Government distributed the same to the beneficiaries. Reference was also
made to a godown, constructed way back in the year 1985.  When this is the
nature of plea, the order of temporary injunction has its own limitation, from
the point of view of its implementation or enforceability.  Assuming that there
existed some vacant land, apart from the structures that were already there, and
the allegation is that the petitioner made any construction over the suit land,
it was for the 1st respondent to prove the acts of violation, through valid
evidence.  The record discloses that not a single person was examined as a
witness, much less any documentary evidence was placed.  Only two photographs  
were filed and the Presiding Officer initialled them as Exs.X.1 and X.2.  The
Tribunal is a civil Court for all practical purposes and what was before it was
a civil suit simplicitor.  Any finding, which is to result in drastic
consequences provided for under Rule 2-A of Order XXXIX C.P.C., must be on the
basis of oral and documentary evidence.

        Even otherwise, Rule 2-A of Order XXXIX C.P.C., provides for two
consequences, viz., the attachment of property of the person found to have
violated the order of injunction, and his being detained in civil prison.  It
does not provide for any other measure or alternative.  The Court does not have
any liberty or discretion to choose something in between, or to order something,
which is not provided for.  The Tribunal, however, has chosen to direct the
demolition of a structure.  Such a course does not at all fit into Rule 2-A.
Any provision of law, relating to procedure, particularly the one that provides
for punishment, must be construed strictly.  When the provision contemplates a
specific measure, the Court cannot take recourse to a different one, by invoking
that provision.

        Hence, the C.R.P. is allowed and the order under revision is set aside.
The Tribunal shall endeavour to decide the suit itself at the earliest.
        The miscellaneous petition filed in this civil revision petition shall
also stand disposed of.

        There shall be no order as to costs.
____________________  
L.NARASIMHA REDDY, J.    
Dated:06.09.2012

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