Petitioner challenged attachment of property and detention in civil prison for alleged violation of injunction. Court found affidavit lacked specific averments of relief sought (preventing passage) and held punishment unwarrantable, quashing it.
Quashed the attachment of defendants' property and the direction for detention of the petitioner in civil prison.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN
TUESDAY, THE 2ND DECEMBER 2008 / 11TH AGRAHAYANA 1930 WP(C).No.27340 of 2008 (D) ---------------------------------OS.149/2007 of PRL.M.C., KOCHI. ....................
PETITIONER: ---------------
VINCENT, S/O.MANUAL, AGED 43 YEARS, RESIDING AT ARAYASSERRY HOUSE, SAUDI, MUNDAMVELIL, RAMESWARAM VILLAGE, KOCHI TALUK, ERNAKULAM DISTRICT.
BY ADV. SRI.T.MADHU
RESPONDENT: ----------------
JOSEPH @ JOSY, S/O.ANTONY, AGED 39 YEARS, KOLOTHUMVEETTIL, SAHAKARANA ROAD, EDAPPALLY, KOCHI-24.
ADV. SRI.K.V.BINOD
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.27340 of 2008 (D)
APPENDIX
PETITIONER'S EXTS:-
EXT.P1:- TRUE COPY OF THE PLAINT IN O.S. NO.183/07 ON THE FILE OF THE PRINCIPLE MUNSIFF'S COURT, KOCHI.
EXT.P2:- TRUE COPY OF THE PLAINT IN O.S. NO.149/07 ON THE FILE OF THE PRINCIPLE MUNSIFF'S COURT, KOCHI.
EXT.P3:- TRUE COPY OF THE I.A. NO.935/07 IN O.S. NO.149/07 ON THE FILE OF THE PRINCIPAL MUNSIFF'S COURT, KOCHI.
EXT.P4:- TRUE COPY OF THE JUDGMENT DT.20/09/07 IN O.S. NO.149/07 AND O.S. NO.183/07 ON THE FILE OF THE PRINCIPAL MUNSIFF'S COURT, KOCHI.
EXT.P5:- TRUE COPY OF THE APPEAL MEMORANDUM IN A.S. NO.19/08 ON THE FILE OF THE SUB COURT, KOCHI.
EXT.P6:- TRUE COPY OF THE APPEAL MEMORANDUM IN A.S. NO.18/08 ON THE FILE OF THE SUB COURT, KOCHI.
EXT.P7:- TRUE COPY OF the EXECUTION PETITION NO.35/08 IN O.S. NO.149/07 ON THE FILE OF THE MUNSIFF'S COURT, KOCHI.
EXT.P8:- TRUE COPY OF THE ORDER DT.26/03/07 IN I.A. NO.826/07 IN O.S. NO.149/07 ON THE FILE OF THE MUNSIFF'S COURT.
EXT.P9:- TRUE COPY OF THE CERTIFICATE ISSUED BY THE VICAR OF OUR LADY OF HEALTH CHURCH, KANNAMALY DT.01/09/08.
K.P.BALACHANDRAN, J.
W. P. C. No.27340 of 2008
Dated this the 2nd day of December, 2008
JUDGMENT
Petitioner is the first defendant in
O.S.149/07 on the file of the Munsiff's Court,
Kochi. As per Ext.P8 order on I.A.826/07, an
interim order of injunction was issued against
the defendants in the suit restraining them from trespassing into the plaint schedule property till 28/03/07. It is seen from para 9
of Ext.P4 judgment that the interim prohibitory injunction was extended until further orders on 28/03/07. The plaintiff filed Ext.P3 application on 03/04/07 under Order 39 Rule 2A and Section 151 of the CPC to punish the respondents/defendants for disobeying the prohibitory order of injunction passed
against them. The allegation against the defendants in the affidavit filed with Ext.P3
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application is that they trespassed into the scheduled property on 29/03/07 and that the petitioner is being substantially harassed by the respondents through their conduct of wilful neglect to obey the order passed against them. It is also alleged that the
defendants are continuing their breach with regard to the injunction order passed against them.
have violated the interim prohibitory order of injunction is not at all alleged in the affidavit except that they trespassed into the scheduled property on 29/03/07. As to what they did in the property by trespassing into it on 29/03/07 is not disclosed. The court
below, however, posted Ext.P3 application along with the suit and while disposing of the
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suit found as per discussions in para 23 of
the judgment that the defendants have violated the injunction order and are liable for prosecution as prayed for and in para 25 and 26 of the judgment directed that the property of the defendants scheduled as 'A' schedule in
the connected suit O.S.183/07 will be kept under attachment and the petitioner/the first defendant in O.S.149/07 shall be detained in civil prison for one month for his intentional violation of the interim injunction order.
counsel for the petitioner that Ext.P3 petition filed under Order 39 Rule 2A was not enquired into and it is on the basis of the evidence adduced at the trial of the suit that the court has found that there is violation of the interim injunction order committed by the
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defendants and has ordered attachment of the property as also awarded punishment of imprisonment as against the petitioner/first defendant vide Ext.P4 judgment and decree and that for the purpose of entering finding that there is violation of injunction order committed by the defendants in O.S.149/07 stray statements of PW1/the first defendant who is the petitioner herein has been taken into account without putting the petitioner/ first defendant to the knowledge that he is being tried for the offence of violation of injunction and that therefore, the finding regarding violation of injunction in Ext.P4 judgment and decree be set aside inasmuch as it has disposed of Ext.P3 petition and to direct the court below to conduct fresh enquiry and dispose of Ext.P3 afresh
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untrammelled by the observations made in Ext.P4 judgment and decree.
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and they are continuing their breach with
regard to the injunction order passed against them. There is no whisper in the affidavit as to what all were the highhanded actions of the defendants. Though it is averred that the respondents trespassed into the scheduled property on 29/03/07, there is no mention as to whether they did any mischief in the property or commit any waste therein or reduce the property to their possession. The court below has found the defendants guilty of having violated the injunction order on the basis of an admission made by the petitioner/ first defendant as PW1 in cross examination that himself and other members of his family are using the property of the plaintiff for their ingress and egress even now; and that, that is violation of the injunction order.
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Ext.P8 injunction order which was later extended till disposal of the suit restrains the respondent only from trespassing into the plaint schedule property with nothing else namely that they shall also not use the property for passage and the respondents/ plaintiffs also did not ask for any modification of Ext.P8 injunction order restraining the defendants in the suit from using any portion of their property as pathway for access to the property of the defendant. Thus, it is a case whether there is no wilful disobedience of any specific prohibitory order issued by the trial court against the defendants and the attachment of the property of the defendants and direction to imprison the petitioner/first defendant are therefore, unwarranted and are liable to be quashed in
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this Writ Petition especially for the reason that the attachment and detention in prison were all being provided for in the decree and judgment and not in any order which the
petitioner can assail in appropriate proceedings.
K.P.BALACHANDRAN, JUDGE
kns/-
3 issues framed by the court
Whether a fresh enquiry into the petition for punishment of contempt is necessary given the lack of specific averments regarding violation of injunction.
Whether the attachment of property and detention in civil prison for violation of injunction were warrantable and maintainable in a writ petition.
Whether theInterim injunction order barred the defendants from using the property as a pathway for access.
2 provisions across 1 enactments
VINCENT
JOSEPH @ JOSY
K.P.BALACHANDRAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
