KUNHAMMAD Vs. MAMMOOTY

JUDGEMENT

(1.) Defendant in O.S.No.49/98 on the file of the Munsiff's Court, Nadapuram is the revision petitioner. Respondents/plaintiffs filed the above suit for prohibitory injunction restraining the revision petitioner from constructing a building in violation of the Kerala Building Rules and the Kerala Panchayat Raj Act. In the suit the respondents/plaintiffs filed I.A.No.634/98 for interim injunction under O. XXXIX Rule 1 restraining the revision petitioner from constructing the building in violation of rules till the disposal of the suit. Since the revision petitioner refused to receive the order, an Advocate Commission was appointed. Commission filed his report showing that the interim order passed by the court below had been violated by the revision petitioner. Consequently, respondents filed LA. No. 1922/2001 under Order XXXIX Rule 2A of the CPC. In the above application the court below found that the revision petitioner had violated the order of injunction passed by the court below and ordered that the revision petitioner should be detained in civil prison for one month on deposit of subsistence allowance by the respondents. The court below also issued warrant of arrest against the revision petitioner. The revision petitioner filed C.M.A.No. 16/2002 before the Sub Court, Vadakara. Against the warrant of arrest the revision petitioner filed C.R.P.No.817/2003 along with C.M.P.No. 1997/2003 for interim stay of all further proceedings in I.A.No. 1922/2001 before this Court during the pendency of the appeal. This Court stayed the order of warrant on condition that the revision petitioner deposits a sum of Rs.7,500/-, which was complied with by the revision petitioner. The above revision petition was disposed of. But the appellate court confirmed the order passed by the court below. Aggrieved by the judgment in appeal confirming the order in I.A.No. 1922/2001, the revision petitioner has approached this Court by filing the revision petition.

(2.) Heard counsel for the revision petitioner. In the revision though notice was served on the respondents, there is no appearance on behalf of them. It is the case of the petitioner that the court below erred in accepting the report of the Process Server that the revision petitioner refused to receive notice. Learned Counsel for the petitioner also submits that it is mandatory to follow the procedure under O.V Rule 17 CPC before proceed under O.XXIX Rule 1 CPC. To substantiate this contention learned Counsel for the petitioner relies on a decision of the Apex Court reported in Sushil Kumar Sabharwal v. Gurpreet Singh and Ors. 2002 SAR (Civil) 557. The learned Counsel also submits that the order of restraint is related to R.S.No.73/11, wherein there was no construction and the construction work found was in plot A in R.S.No,73/B and 71/1B and hence the orders are not sustainable.

(3.) Admittedly the suit filed alleging violation of Kerala Building Rules. The injunction passed by the court below was an ex parte order. It has come out in evidence that when the Process Server visited the plot, the revision petitioner though present refused to receive the notice and the Process Server thereby reported that the notice was refused by the revision petitioner. As per O.V Rule 17 CPC when the defendant refuses to accept service, the serving officer shall affix a copy of the notice on the outer door or some other conspicuous part of the house of the defendant. It is mandatory on the part of the serving officer to do so. O. Rule 17 reads as follows:--