P. SUNDARA BHAT Vs. DUGGAMMA

JUDGEMENT

(1.) The plaintiff in O.S.No.157/1994 on the file of the Principal Munsiff Court, Kasaragod is the appellant herein. The suit was one filed by the plaintiff/appellant herein for permanent prohibitory injunction restraining the sole defendant, his men and his agents from trespassing into any portion of the plaint A schedule property or forming a new road or widening the existing road or otherwise interfere with the plaintiff's peaceful possession and enjoyment thereof. During the pendency of the suit, the original defendant died and additional defendants 2 to 7 were impleaded as his legal heirs as per order in I.A. No.1813/1994. Thereafter, additional 8th defendant was also impleaded as one of the sons of the original deceased defendant as per order in I.A. No.488/1995.

(2.) The original defendant entered appearance and filed written statement denying the allegations and also contended that the plaintiff had no cause of action to file this suit and he had constructed the road in the land covered by exchange deed dated 02.11.1992 and he had got the right to widen the same as well. Plaintiff had no cause of action to file the suit against the defendants and prayed for dismissal of the suit with cost and also compensatory cost under Sec. 35 (A) of Civil Procedure Code.

(3.) A commission was taken and commissioner filed reports and plans. The defendant also filed application for injunction against the plaintiff and injunction was granted against him and since that was violated, the defendant filed a petition for prosecution for violation of injunction under Order 39, Rule 2 (A) of Civil Procedure Code and that was tried and he was found guilty of violation of injunction and he was directed to be detained in civil prison and also his property was attached. The appellant herein filed CMA No.27/97 before the District Court and the District Court allowed the appeal in part, confirming the finding on the question of violation of injunction but set aside the order detaining the appellant in civil prison but confirmed the order of attachment passed. In the meantime, the plaintiff filed memo dated 12.2.1998 not pressing the suit, as he had mentioned that at present there was no threat of any trespass. Supplemental defendants filed objection to the same stating that the memo was frivolous, vexatious and the suit filed itself was frivolous one and plaintiff by prosecuting the case caused lot of loss for the defendants and they pressed for heavy loss on the plaintiff in case the suit has to be dismissed, on the basis of the memo.