- (1.)The State Government along with their officers have preferred this appeal under Order 43 Rule 1(r) of the Code of Civil Procedure, 1908 challenging the order dated 8.9.2006 passed by IV Additional District Judge, Rewa in MJC No. 25/1997 allowing the application under Order 39 Rule 2A of CPC and for the breach of injunction, appellant No. 2 has been directed to undergo civil imprisonment for one month while appellants No. 3,4 and 5 for 15 days. The relevant facts of the case are that respondent instituted a suit in the Court of II Civil Judge Class- I Rewa on 6.1.1992 contending that he is the owner of the land bearing Khasra No. 236/1 and constructed a house and boundary wall thereon. It was alleged that Tehsildar, Nazul, Rewa is trying to demolish the boundary wall constructed by him. The application seeking leave to entertain the suit and to grant the urgent interim relief was also filed under Section 80 (2) of the CPC which was rejected as per order dated 6.1.1992. Feeling aggrieved by the said order, a revision was preferred before the Additional District Judge, Rewa which was registered as Civil Revision No. 3/92 and on the same day an exparte interim order was passed directing that the boundary wall situated in Khasra No. 236/1 shall not be demolished and it be allowed to remain in the same position. The said revision was disposed of vide order dated 29.1.1992 with the observation that the respondent may institute a regular suit in the competent civil court along with an application for grant of temporary injunction, however it was observed that the interim order dated 6.1.1992 shall continue to remain in force till the application for temporary injunction is decided by the Trial Court. The respondent instituted a regular suit in the court of II Civil Judge Class- I Rewa which was registered as Civil suit No, 9- A/92. On filing an application under Order 7 Rule 11 of CPC by the other side, the suit was dismissed as per order dated 11.2.1992 with an observation that no orders are necessary on the application for temporary injunction. Feeling aggrieved by the said order, a regular Civil Appeal No. 13- A/92 was preferred which was allowed vide judgment and decree dated 25.3.1992 setting aside the order of the Trial Court and the matter was remanded back to decide the same afresh in accordance with law. After remand, the application for temporary injunction was decided vide order dated 14.10.1998 restraining defendants from demolishing the boundary wall or to take any action in furtherance thereto. In the application under order 39 Rule 2A, it is stated that the boundary wall has been demolished on 10.6.1997 by the appellants, at that time the order passed by the Additional District Judge, Rewa dated 6.1.1992 was in existence, therefore the appellants No. 2 to 5 have committed the breach of injunction for which they are liable to be punished.
(2.)The appellants in reply contended that the boundary wall of the respondent was demolished on 6.1.1992 even prior to passing of interim order by the District Judge, Rewa, however under the garb of injunction order the respondent has again constructed boundary wall obstructing a public way connecting the village Padra and Dheka. It is stated that the residents of these two villages were using the said way, however by constructing a boundary wall the right to use of the said passage of the villagers was being obstructed by respondent, therefore the order under Section 133 of the Cr.P.C. was passed by the Sub Divisional Magistrate, Tehsil Huzur District Rewa in the proceedings instituted on 24.12.1991 much before filing of the suit. The obstruction by the said boundary wall was causing nuisance to the public at large, however the SDM passed an order on 5.5.1997 in exercise of powers conferred under Section 142 of Cr.P.C. directing the police personnel to remove the obstruction, therefore the boundary wall was removed on 10.6.1997 and the thorough fair was made available for the residents of the villages Padra and Dheka. It was not disputed that appellant No. 2 was posted as Sub Divisional Magistrate while the appellants No. 3 to 5 were the police personnel posted at the relevant point of time. It is said that on the date of demolition i.e. 10.6.1997 the order of injuntion was not in existence, however question of breach of injunction do not arise. It is said that the suit itself was decreed directing payment of compensation in favour of respondent and in furtherance there to the State Government has compensated the respondent by making such payment. In such a circumstances, the order of punishment passed by the Trial Court for breach of injunction is liable to be set aside.
(3.)Shri. R. D. Jain, learned Advocate General for the appellants contends that the effect of order dated 29.1.1992 passed in Civil Revision No. 3/92 has ceased on 11.2.1992, on account of dismissal of the suit itself. Against the said order an appeal was preferred which was decided on 25.3.1992 setting aside the order of dismissal of the suit and to decide it in accordance with law. While passing such order, the appellate court has not revived the order of injunction. In absence of any order of revival, the injunction order was not in existence on the date of alleged breach. The trial Court passed an order of injunction on 14.10.1998 allowing the application for temporary injunction. Thus as per the allegations alleged in the application for committing the breach on 10.6.1997, the order of injunction was not in operation however the punishment as directed for the breach of injunction is liable to be set aside. Learned Advocate General has placed reliance on the Division Bench judgment of this Court in the case of Madanlal Chhotelal and others Vs. Ramprakash Ghasiram, 1963 AIR(MP) 329wherein it was held that if the suit is dismissed and an appeal is preferred then the suit would be at the stage of the appeal, however unsuccessful plaintiff is required to invoke the power for revival of the order of injunction which ceases its effect on dismissal of the suit. While dealing with the said issue, the full Bench decision of the Madras High Court in the case of Tavvala Veeraswami Vs. Pulim Ramanna and others, 1935 AIR(Mad) 365has been distinguished and relying upon the Full Bench judgment of Mysore High Court in the case of Gangappa V. Boregowda and others, 1955 AIR(Mys) 91 dissenting from the Full Bench decision of Travancore- Cochin High Court in the case of Muhammad Abdul Khadir Vs. Padmanabha Pillai,1952 AIR(Trav) 414and relying upon the Division Bench judgment of Andhra Pradesh High Court in the case of Kumaji Sare Mal Firm V Kalwa Devadattam, 1958 AIR(AP) 216 upholding the another Full Bench Judgment of Madras High Court in the case of Balaraju Chettiar V. Masilamani Pillai, 1930 AIR(Mad) 514, propounded that on dismissal of the suit the interim order ceases its effect, and on filing the appeal it would not automatically revive. It is submitted that the Full Bench of Allahabad High Court in the case of Abdul Hamid V. Karim Bux and others, 1973 AIR(All) 67have taken the same view, and also relied upon the judgment of Madhya Pradesh High Court on the said issue. Subsequently the Single Bench of Allahabad High Court in the case of Nagar Mahapalika Vs. Ved Prakash, 1976 AIR(All) 264has taken the same view. The Gauhati High Court in the case of Smt Usha Rani. Banik Vs. Haridas Das and others, 2005 AIR(Gau) 11 has also approved the same principle. Considering the views taken by various High Courts, it is apparent that the order of injunction ceases its effect on dismissal of the suit. On filing the appeal, if the appellate court has directed for remand, the order of injunction would not automatically revive unless and until the order of revival of injunction is passed. In the present case, while directing remand the order of revival of injunction was not passed and in the suit injunction was granted on 14.10.1998 prior to the same the boundary wall was demolished on 10.6.1997, therefore there is no breach of the order of injunction by the appellants, however prayed that the order of punishment may be set aside.