The revision petitioners are the decree holders in O.S. No.2/2000 on the files of the Munsiff's Court, Androth as well as the petitioners in E.P.No.2/07 filed therein. In the above case, a decree was passed against the respondents/defendants restraining them from evicting the plaintiffs or interfering with the right of residence in the House No.C4-244 situated in the plaint schedule property. The above E.P. was filed under Order XXI Rule 32(1), (2) and (5) of the Code of Civil Procedure on the allegation that on 8-2-2007 the respondents/defendants intentionally demolished the decree schedule house, while the petitioners were away from the house, which has been used by the petitioners and situated in the plaint schedule property. That apart, the judgment debtors sold their household articles worth Rs.75,000/- belong to the decree holders and thus the judgment debtors willfully violated the decree of the court. The act of the judgment debtors is clear disobedience of the order of the court and violation of the decree passed in O.S. No.2/2000.
2. The respondents denied the demolition of the building and sale of the articles belonged to the decree holders. According to them, the decree holders have not resided in the decree schedule property after the passing of the decree and the house was deserted and no one resided there since the last so many years. Electric connection was disconnected long back. A coconut tree and a cheerani tree which were standing in front of the house fell on the house due to strong wind and rain and a a result of that the house was severely demolished. The decree holders have no right over the articles kept in the house and they have a right of residence only in the house till their death. But, they themselves have abandoned the house and they were residing far away and are residing in their own house. In short, the house collapsed due to its old age and natural decay and the trees which were standing near the house in a slanting position fell on the house and thereby the house got destroyed. The judgment debtors are not responsible for any of the alleged acts. The petition is filed due to enmity and it is intended only to harass the respondents.
3. The evidence consists of oral evidence of the decree holders 2 and 3 as P.Ws.2 and 3 and Commissioner as PW1. Exts.A1 to A4 were marked on the side of the decree holders. The second judgment debtor was examined as DW1 and Exts.B1 to B3 were marked on the side of the judgment debtors. Ext.C1 series and C2 are also marked as court exhibits. After considering the evidence available on record, both oral and documentary, the court below found that the decree holders miserably failed to prove that the judgment debtors willfully disobeyed the decree in any manner despite having opportunity to obey the same. The judgment debtors have not violated the injunction order in O.S.No.2/2000. The legality and propriety of the findings under which the above Execution Petition was dismissed are under challenge in this Revision Petition.
4. The learned counsel for the decree holders submits that the court below miserably failed to appreciate both oral and documentary evidence in its correct perspective. The court below should have found that the intention of the judgment debtors was to demolish the house so as to prevent the decree holders from using the same and the judgment debtors had won in materialising the said intention and thereby violated the judgment and decree. The court below went wrong by accepting the case of the judgment debtors that the building was very old and the judgment debtors never used the same as a residence. Thus, the court below went wrong by giving much weight for the residence in the house for the alleged violation of the decree. The main thrust of the argument advanced is that the decree holders' separate residence in their wife house during the time of collapse of the house in the decree schedule property will not take away their right established under the decree and it cannot be held that the decree holders were not residing in the said house. It is also contended that the right of residence accepted by the trial court in the decree is sufficient enough to arrive at a finding that the decree holders were residing in the said house at the time of demolition of the building.
5. Per contra, the learned counsel for the judgment debtors advanced arguments to justify the findings under which the court below dismissed the Execution Petition. According to him, absolutely there is no evidence to show that the judgment debtors willfully violated the decree in disobedience. It is also contended that it was incumbent upon the decree holders to prove that the judgment debtors have willfully violated the decree, despite having opportunity to obey the same. The learned counsel further drew my attention to Ext.C1 commission report as well as the evidence given by the Commissioner and contended that from the commission report it cannot be held that the building was destroyed by the fall of the trees leaning towards the building. The learned counsel cited Padmanabhan Vs. Narayanan (1987 (2) KLT 260) to fortify the point that the alleged act of the judgment debtors must be an act of an intentional mind which was conscious of the prohibition and what was intended and done was a conscious violation. It is also contended that the standard of proof required for preventing the violation of a decree is at par with the standard of proof required for prosecuting an accused in criminal offence.
6. Heard both sides. I have given my anxious consideration to the rival submissions at the Bar. The question that emerges for consideration is whether the court below failed to exercise the jurisdiction vested in it or exercised jurisdiction illegally or with material irregularity?
7. Going by the judgment, it could be seen that admittedly the decree holders were not residing in the disputed house at the time of passing the decree. P.W.2 himself admitted that the decree holders were residing in separate houses far away from the petition schedule building for the last several years. From Ext.B1 it is clear that the mother of the decree holders died while she was residing in 'Arafa Manzil', another house in Androth. It is pertinent to note that the decree is one prohibiting the defendants and their men from evicting the plaintiffs or interfering with the rights of the respondents in house No.C4-244 situating in the plaint schedule property. But, absolutely, the decree holders failed to prove that they were residing in the petition schedule building on 22-8-2007 when the alleged destruction of the building was happened.
8. But, there is sufficient evidence to show that the decree holders are residing in separate houses far away from the demolished house. Going by the earlier commission report, it could be seen that the house situated in the plaint schedule property was an old house and on the back side of the building a small tree (Cheerani tree) was seen lying on the roof of the building and due to the attack of its branches, reaper about one metre in length just below the wall plate that provided on the common rafter for placing tiles was seen broken and about 5 tiles were dislocated from its position. It is also stated that due to lack of proper maintenance for the last 5-6 years, the building was seen very shabby by appearance. In the instance case, the nature of the building as well as the trees standing in a leaning position towards the old building assumes much significance in view of the case of the judgment debtors that the coconut tree and cheerani tree which were standing near the house fell on the house due to strong wind and rain and as a result of that the sheet of the house was severely damaged and the judgment debtors are not responsible for the collapse of the house.
9. Coming to the oral evidence adduced by P.Ws. 1 to 3, P.W.2 is the sole witness who claims that he had witnessed the incident. Going by his evidence, it is seen that though he claims that he witnessed the incident, he came to the spot after the collapse of the house. The reason for the falling of the house is the question in controversy. But, he has not witnessed the pulling or pushing of trees as alleged in the decree holders' case. In his evidence, he admitted that the house was deserted and abandoned without taking any maintenance and thereby the house was in a dangerous condition due to the fall of coconut leaves from the coconut tree standing near the house. Moreover, due to heavy rain, the house was collapsed partially. It is also admitted that a cheerani tree was standing near the house in a leaning position towards the roof of the house. This is also clearly discernible from Ext.C1 report. Though in the petition as well as the chief affidavit the decree holders claim that so many persons of the neighbouring locality had witnessed the alleged act of violation, none of them were examined as independent witnesses to corroborate the sole evidence of P.W.2. It is also pertinent to note that the alleged violation was done on 28-2-2007. But the Execution Petition was filed on 10-5-2007, after the disappearance of evidence which the decree holders could have adduced to prove their case, if it was true. That apart, they complained before the police only on 7-5-2007, after a long lapse of 3 months. P.W.3 himself admitted that at the time of the alleged incident, he was in Mainland for treatment purpose and he reached only after 3 months. The burden is necessarily on the decree holders to prove that all the judgment debtors have willfully violated the decree in disobedience. Here, the learned counsel cited Padmanabhan Vs. Narayanan (1987 (2) KLT 260) and drew my attention to the relevant portion, which reads as follows:
“A judgment-debtor cannot be confronted with the drastic action of depriving him of his personal liberty on the mere finding that the decree is violated or disobeyed. Only when there is wilful failure the court gets jurisdiction to take the extreme action. Mere inadvertent, casual or accidental omission or violation is not what is envisaged under O.21 R.32(1). Some mental element, though it may not be the same as mens rea in the matter of disobedience must be there. The judgment-debtor can have a variety of explanations for what appears to be an apparent violation or disobedience. Violations for which there can be reasonable or plausible explanations of absence of wilful mind cannot be visited with the serious penal consequences. All the attendant circumstances coupled with the explanation of the judgment-debtor will have to enter the judicial mind before giving the verdict that the action or omission of the wrong doer is an invasion into the authority and dignity of the court, willfully made. It is considered more akin to contempt of the authority of the court than as a private grievance of the decree-holder and the object is to bring the judgment-debtor to the authority of the court by making him obey the decree. That is because such decrees may not be capable of execution and enforcement by any other method and decrees and orders of courts will have to be enforced in the interest of society and individual also. The word ‘wilful’ according to dictionary meaning imports a deliberate or voluntary or intentional act. Therefore it must be an act of an intentional mind which was conscious of the prohibition and what was intended and done was a conscious violation. In dealing with the question, courts have to bear in mind that the object of the rule is to enforce injunctions contained in the decrees or orders and not to punish a party guilty of disobedience. Resort cannot, therefore, be had to the rule for the purpose of punishing a person for breach of an injunction. In a contempt matter what is involved is punishment while in the present case it is only enforcement of the decree and the detention is in civil prison and that too only for enforcing the decree and not for anything else. But a casual or accidental or unintentional disobedience to an order of the court is not enough to justify either sequestration or committal; the court must be satisfied that a contempt or disobedience or violation of the decree of court has been committed willfully in other words, that its order has been contumaciously disregarded. Then only the penal consequences could follow.”
10. Bearing the said proposition in mind, I have scrutinized the evidence available on record. I find that absolutely there is no evidence, either oral or documentary, to prove that on 28-2-2007 the judgment debtors caused the falling of trees so as to destroy the house with an intent to evict the decree holders from the plaint schedule building. On the other hand, there are sufficient evidence to show that all the decree holders were residing far away in separate houses of their own and the plaint schedule building was stood in a dilapidated condition as the same was aged more than 70 years. Thus, I find that the decree holders miserably failed to prove the alleged act of violation with an intent to disobey the decree. Hence I find that the court below has rightly exercised its jurisdiction and there is no illegality or irregularity in any of the findings. It is made clear that the observations made above are confined to the question whether the decree holders have willfully violated the decree or not.
This Revision Petition is dismissed accordingly.
Sd/-
(K.HARILAL, JUDGE)
okb.