SURJYA ROY Vs. LEELANATH

JUDGEMENT

(1.) Heard Mr. N. Choudhury, learned counsel for the petitioner and Mr.N.H. Majarbhuyan, for the respondents.

(2.) The respondents herein have filed a suit for a decree for declaration of their right, title and interest and possession of the Schedule -1 land and for declaration that Sri Surjya Roy, petitioner herein, is a trespasser over the suit land. An application for ad interim injunction was also filed. The trial court by its order dated 04.08.1998 has passed an order of tempo - 04.08.1998 has passed an order of temporary injunction in the terms, which has been quoted in paragraph 6 of the lower appellate court's judgment- "restraining the O.P.No. 1 from transferring the suit land and from changing the topography of the suit land and the suit house". Later on, an application was filed by the respondents herein before the trial court under Order 39 Rule 2A CPC complaining about the breach of injunction. It is alleged in the petition that the petitioner herein has violated the injunction order by cutting bamboo from the bamboo bushes situated over the suit land and constructed a kachha house with bamboo structure on the northern side of the suit land thereby changing the nature and feature of the suit land giving rise to multiplicity of proceedings, causing irreparable loss to the plaintiff respondents. Notice was issued to the defendant petitioner and the petitioner submitted his objection contending, inter alia, that he is holding the land in the capacity of tenant of the plaintiff respondents and all the houses with bamboo structure required to be repaired in the winter season in order to save the house from impending storm. Accordingly repairs have been made of the house already standing on the land and there was no construction of anew house. It is only the old house, which was repaired, and thus he has not violated the order of injunction. The Court has appointed the Commissioner for local inspection. The Commissioner submitted his report. After considering the entire evidence, the trial court recorded its findings that the petitioner has made repair of the house by cutting bamboos standing on the land, but it was done with the intention to substantiate his claim of tenancy right of the suit property. Thus, although the breach of injunction complained about, which is a matter of repair of the old house, is not very serious in nature, but the motive behind it not being candid, the petitioner herein is guilty of violation and disobedience of the injunction order issued by the court and consequently directed for lodging the petitioner in the civil prison for 15 days and the respondents herein were directed to bear all the costs of imprisonment.

(3.) Aggrieved by the order passed by the trial court, an appeal was preferred by the petitioner. The appellate court has also agreed with the findings arrived at by the trial court that the petitioner has not constructed a new house on the suit land, but has only made repairs of the old house by remodeling the old one - roofed bamboo house in two-roofed bamboo house which amounts to breach of injunction granted by the trial court and confirmed the order of the trial court of civil imprisonment. Thus, the appellate court has reached to the conclusion that repairs of the old structure tantamount to change of the nature and feature of the house standing on the suit land and on this finding confirmed the imposition of punishment of civil imprisonment. Against the said order of the appellate court, the present revision petition is filed.