Dismissed

Abdul Gafoor v. v.a.Thomas

Kerala HC17 Sept 2012CRP/330/2012

Case brief

AI extract

What is this about?

The High Court affirmed the lower court's order executing a decree restraining the judgment-debtor from altering leased premises. Finding violations like new flooring and false ceilings, the Court directed restoration of the original state and reduced the detention period to two months.

What did the court decide?

Status-quo ante restored; previous detention period reduced to two months; judgment-debtor must remove unauthorized additions.

Abdul Gafoor Vs v.a.Thomas — Execution and Attachment | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE V.CHITAMBARESH

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MONDAY, THE 17TH DAY OF SEPTEMBER 2012/26TH BHADRA 1934

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CRP.No. 330 of 2012 () ---------------------EP.NO.453/2010 IN OS.787/1998 of PRL.M.C.,ERNAKULAM

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REVISION PETITIONER(S)/JUDGMENT DEBTOR:

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ABDUL GAFOOR BURFIS, CC 41/2806, OPP.TOWN HALL ERNAKULAM VILLAGE KANAYANNUR TALUK ALSO HAVING ADDRESS AT BIMBIS JOSE JUNCTION, NEAR MG ROAD, ERNAKULAM COCHIN-16. BY ADVS.SRI.DINESH R.SHENOY SRI.G.HARIKRISHNAN (TRIPUNITHURA) SRI.R.V.RAHUL

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RESPONDENT(S)/DECREE HOLDER:

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V.A.THOMAS S/O.LATE VELUKARAN ANTONY, VELUKARAN HOUSE ST.VINCENT ROAD, NOW RESIDING AT VELUKARAN HOUSE CHAKKUNGAL ROAD, PALARIVATTOM, KOCHI-25. BY ADV. SRI.M.P.RAMNATH

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THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 1709-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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V. CHITAMBARESH, J.

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C.R.P.No.330 of 2012

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Dated this the 17^th day of September, 2012

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Order

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The suit O.S.No.787 of 1998 on the file of the Court of the Principal Munsiff of Ernakulam was decreed by judgment dated 28.09.1999 as follows:

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“The suit is decreed restraining the defendant and his men perpetually from reconstructing or repairing the plaint B schedule shed and from making any addition or alteration to the A schedule building. By way of mandatory injunction, the defendant is also directed to demolish and remove the plaint B schedule shed within a period of 2 months from today, failing which the plaintiff shall be entitled to have it removed through court at the expenses of the defendant.”

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The petitioner in this Civil Revision Petition is the judgment debtor and the respondent herein is the decree holder in the suit referred to above.

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The decree holder had earlier filed E.P.No.44 of 2010 to demolish the plaint B schedule shed whereupon the judgment

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debtor offered to remove it by himself. E.P.No.44 of 2010 was eventually closed even though there is lingering dispute as to whether the plaint 'B' schedule shed is now in existence or not. The present Civil Revision Petition concerns the execution of that part of the decree which pertains to the plaint A schedule building. The parties at that point of time were governed by Ext.B9 lease deed to which the decree holder and the judgment debtor were parties. The lease deed specifically contains a stipulation that 'necessary repairs and maintenance shall be done by the lessor'. This obviously means that the lessee/judgment debtor has no right to do the necessary repairs and maintenance. Added to this is the term of the decree extracted above which specifically restrains the judgment debtor from making any addition or alteration to the plaint A schedule building. The short point that arises in this Civil Revision Petition is as to whether the judgment-debtor has effected any 'additions' or 'alterations' to the plaint A schedule building in violation of the decree. E.P.No.453 of 2010 has been filed by the decree holder in this connection to punish the judgment debtor for having violated the terms of the decree referred to above.

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CRP 330/2012

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An Advocate Commissioner was deputed in E.P.No.453 of 2010 who filed Exts.C1, C2, C5 and C6 reports on various dates as regards violation of the decree. Ext.C1 report dated 13.12.2010 reveals the following facts:

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(i) Fresh cutting of marble flooring with machine cutter.

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(ii) Marking on the side walls parallel to draw concealed water pipes.

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(iii) Bundle of PVC pipes stored outside along with two sintex water tanks kept outside.

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Ext.C2 report dated 7.1.2011 reveals the following facts:

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(i) New false ceiling made with gypsum fixed over the old plywood ceiling.

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(ii) Holes made in the side walls through which water pipes have been drawn.

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(iii) Two sintex tanks earlier kept outside have been loaded and kept above the false ceiling.

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Ext.C5 report dated 7.4.2011 reveals the following facts:

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(i) The additional fittings are removable.

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(ii) The fittings are on the existing interior décor.

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Ext.C6 report dated29.10.2011 reveals the following facts:

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(i) Vitrified tiles pasted on the marble flooring are removable.

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Ext.B9 lease deed dated 6.10.1989 was followed by

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Ext.B1 lease deed dated 12.07.2011 in regard to the same decree schedule premises. The relationship between the lessor and the lessee later worsened resulting in yet another suit as O.S.No.122 of 2011 on the file of the Court of the Munsiff of Ernakulam. The suit is for an injunction restraining the defendants (the judgment debtor and the son of the co-lessee) from making any alteration in the area outside the plaint A schedule building and for mandatory injunction to remove the structures unauthorisedly erected. The Advocate Commissioner deputed in E.P.No.453 of 2010 in O.S.No.787 of 1998 was deputed in O.S.No.122 of 2011 also. Ext.C4 report dated 16.2.2011 filed in O.S.No.122 of 2011 reveals the following facts:

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(i) Conversion of bakery into a hotel.

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(ii) Flooring laid with vitrified tiles above the earlier marble floor.

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(iii) New wall panelings were done.

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(iv) Two wash basins were fixed on the western wall

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and two sinks were fixed on the northern wall.

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It needs no elaboration to find that the acts done by the judgment debtor are in flagrant violation of the decree in O.S.No.787 of 1998 which has become final. The facts reported by the Advocate Commissioner in Exts.C1 to C6 leave no room

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for doubt that there has been 'additions' or 'alterations' to the plaint A schedule building. What disturbs me most is the indifferent attitude of the judgment debtor in continuing with the violation despite the first visit of the Advocate Commissioner who filed Ext.C1 report dated 13.12.2010. The judgment debtor was alerted about the implications of the decree and the action initiated by the decree holder to curb violation. Nevertheless the judgment debtor merrily continued with the violation by addition or alteration in order to enhance the comfort of the lease-hold premises. A person who violates the decree with impunity cannot be let off so easily.

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I am not swayed by the argument of the judgment debtor that what has been done by him to the lease-hold

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premises has been condoned by the decree holder by the execution of Ext.B1 lease deed dated 12.7.2011. E.P.Nos.44 of 2010 and 453 of 2010 were filed 10 years after the decree. The acts complained of were done during the pendency of the execution petition as has been reported by the Advocate Commissioner in the various reports. I am also not impressed by the plea of the judgment debtor that additions can only mean increasing the plinth area or increasing the height and does not relate to interior decoration. 'Additions' or 'alterations' carry the plain meaning and reference to the Kerala Municipality Building Rules or other enactments are out of place. The fact that the judgment debtor has been permitted to apply for water connection in Ext.B1 lease deed does not clothe him with the right to draw concealed water pipes after damaging the side walls of the building. The finding of the court below that the judgment debtor is liable to be punished for violation of the decree and the status-quo ante restored calls for no interference under Section 115 of the Code of Civil Procedure.

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The court below has directed the following acts to be done to restore the status-quo ante as is seen from paragraph 35

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of the order impugned. The same is extracted hereunder:

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(1) The new ceramic tile flooring put up by the judgment-debtor is to be removed and the earlier existed marble floorings is to be restored.

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(2) The new gypsum board false ceiling is to be removed and the earlier plywood false ceiling is to be restored.

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(3) The newly fixed water tanks and pipes are also to be removed.

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I am in perfect agreement with the order of the court below and direct the judgment debtor to comply with the directions therein. The same shall be carried out within a period of one month, failing which the decree holder in O.S.No.787 of 1998 is at liberty to do the same through court and recover the expenses from the judgment-debtor. The detention of the judgment debtor for a period of three months passed by the court below is reduced to

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two months in the facts and circumstances of the case. No mitigating circumstances have been brought out as to why the judgment debtor shall not be arrested and detained in civil prison for flouting the decree of the civil court under the very nose of the Advocate Commissioner. The jurisdiction under Order XXI Rule 32 of the Code of Civil Procedure has been correctly

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exercised by the court below.

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The Civil Revision Petition fails and is disposed of. No costs.

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V. CHITAMBARESH, JUDGE.

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srd

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Abdul Gafoor v. v.a.Thomas

Case brief

What is this about?

What did the court decide?

Abdul Gafoor v. v.a.Thomas

Case brief

What is this about?

What did the court decide?

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