FAKRU SAB Vs. HUSSAIN BE

JUDGEMENT

(1.) There was an order of temporary injunction against the defendants restraining them from interfering with the possession and enjoyment of the property in question by the plaintiff. The finding is that the 1st defendant has trespassed into the land and removed a tree. His explanation that such removal was a bona fide action, as per the direction issued by the Karnataka Electricity Board authority has not been accepted by the courts below. The learned Munsiff directed that the first defendant shall be detained in civil prison for a period of one month. That order was affirmed by the lower appellate court.

(2.) The learned counsel for the petitioner, Sri Krishnappa, contends that the detention of a person under Rule 2A (1) of Order 39 of the Code of Civil Procedure is not a matter of course ; there is a discretion vested in the court either to attach the property of the person who has contravened the order of injunction or to detdin him in civil prison. Primarily, the penalty for disobedience of an order of injunction will be, the attachment of the property of the person who has committed the disobedience. The learned counsel relies upon sub-rule (2) of Rule 2A of C.P.C. as aiding him in this interpretation of Rule 2A.

(3.) The defence of the petitioner that his conduct was bona fide in cutting the tree, has not been accepted by both the courts below. This is a question of fact. On this finding, it was argued by the learned counsel for the plaintiff, Sri Narasimhamurthy, that the discretion exercised by the trial court, in directing the detention of the first defendant, should not be interfered with by this Court.