1. The petitioners of Special Civil Application No.5007 of 2007 are the original defendants and the respondents No.1 to 4 are the original plaintiffs and respondents No.5 and 6 are original defendant No.1 and original defendant No.13 respectively.
2. In this petition under Articles 226 and 227 of the Constitution of India, the petitioners have challenged the judgment and order dated 13.12.2006 passed by 2nd Additional District Judge, Sabarkantha at Himmatnagar in Civil Appeal from Order No.13 of 2006, whereby the learned Judge dismissed the appeal and confirmed the judgment and order passed by learned Civil Judge (JD), Prantij below Exh.453 in Regular Civil Suit No.15 of 1980.
3. It would be necessary to briefly narrate the facts of the instant case to grasp the real controversy between the parties.
4. Respondents No.1 to 4 ( original plaintiffs) preferred Regular Civil Suit No.15 of 1980 before the Court of Civil Judge, Prantij against the respondents (original defendants No. 2 to 38) and the respondent No.5 (original defendant No.1) for declaration to the effect that the defendants No.2 to 38 have no right to construct on the land bearing Survey No.17/B. Respondents No.1 to 4 have prayed for injunction restraining the defendants from making encroachment or construction over the suit land. Plaintiffs and defendant No.1 jointly owned suit land situated at village Jetpur, Taluka: Prantij admeasuring 3 acres and 2 gunthas. Father of the plaintiffs and that of the defendant No.1 jointly applied for the permission of converting the land into non-agricultural land in the year 1967 and such permission was granted by Mamlatdar, Prantij vide its order dated 29.5.1962. Of course, with a condition that the suit land should be divided into 48 plots admeasuring 4894 sq.yards and the remaining land was to be kept open. Defendants No.2 to 29 made construction over 34 plots. It was the case of the plaintiffs that the defendants have no right over the suit land and, therefore, against the construction, declaration and permanent injunction was sought where application for interim injunction under the Code of Civil Procedure was preferred. The original defendants resisted the suit on the ground that there was pendency of one Special Civil Suit No.121 of 1979 before Civil Judge, Prantij against defendants No.1 to 4 and, therefore, present suit was not maintainable. Joint property was sold in the year 1962 to defendants No.2 to 38 for consideration of Rs.9000/- and since then the defendants No.2 to 38 are in possession of the respective plots, the trial Court after hearing both the sides, confirmed the ad interim relief granted by restraining the respondents from making any construction on any part of the suit land and on the marginal land till the final disposal of the suit. Being aggrieved by the said order, the petitioners (original defendants) preferred Appeal from Order being A.O No. 9 of 1980 before the District Court, Sabarkantha, which was partly allowed restraining the defendants from making construction on the respective plots. However, the order restraining them from making use of marginal land was quashed and set aside. The Panchnama was drawn of the plots and the same was carried out for Exhs. No.170,171 and 172 ( Annexure-E).
5. In the year 2000, an application Exh.452 under Order 39 Rule 2A was filed by the original plaintiff along with Section 151 of the Code of Civil Procedure for initiating steps against the defendants for breach of order of injunction. This was given mainly on the ground that despite there being specific order restraining the defendants from carrying out the construction or encroachment on the suit property, exactly contrary was done by the defendants and illegal construction had already been put up.
6. Request of initiating action under Order 39 Rule 2A against petitioners-defendants for breach of injunction was answered by the defendants denying any injunction. The trial Court after hearing both the parties allowed the application Exh.453 directing the defendants to remove the construction marked by red pen in the plan. They were directed to so remove constructions within 30 days of the order.
7. Being aggrieved by this, Appeal From Order No.30 of 2011 was preferred. Joint District Judge, Sabarkantha vide its order dated 16.3.2002 allowed the appeal and remanded the matter back to the trial Court for availing an opportunity of adducing evidence to the parties.
8. The respondents preferred Civil Revision Application No.573 of 2002 against such order, which they eventually withdrew and, therefore, by an order dated 26.12.2003 such revision application was dismissed as withdrawn with a direction to the trial Court to dispose of the application Exh. 453.
9. The trial Court proceeded with the hearing of application Exh.453 on 17.1.2004. Both the sides were given due opportunities and, thereafter vide its order dated 13.2.2006, it directed the defendants to remove illegal construction, namely, toilet, latrine, staircase, plaster, veranda and restore the position as per Exh.170 to 173 ( First Panchnama) within 15 days of the date of order. This order was challenged in Appeal From Order No.13 of 2006 before the District Court and the Court dismissed the appeal by judgment and order dated 12.12.2006. The impugned order is challenged in the present petition on the various grounds narrated in the petition.
10. On issuance of the notice, affidavit-in-reply is filed. It is contended inter alia that the proceedings are not pertaining to the Contempt of Court as provided under the Contempt of Court Act but it is a consequence of disobedience or breach of injunction as provided by Order 39 Rule 2A of the Code of Civil Procedure. It is further the say of these respondents that the restoration of the status quo ante as per the Panchnama Exhs. No.170 to 173 within 15 days from the date of the order is just and balanced order requires no interference. Reliance is placed on the following judgments as under:-
1. Gohel Parbhatbhai Nathabhai vs. Pandya Arwindkumar Ambalal reported in AIR 1987 (Gujarat) 160.
2. Chandan Mull Intra Kumar and others vs. Chiman Lal Girdhar Das Parekh and another, reported in AIR 1940 Privy Council page-3.
3. Southern Command Military Engineering Services Employees Cooperative Credit Society vs.
V.K.N. Nambiar reported in AIR 1988 SC.2126.
4. Giridhari Dhir vs. Golaka Chandra Nayak reported in AIR 1987 Orissa 171.
5. The State of Bihar vs. Ramo Sonabhai Kumari, reported in AIR 1961 SC 221.
6. Dhirajlal Vithaldas Kavaiya vs. Rasiklal Chandulal Patel, reported in 34(1) GLR 2006.
7. Samee Khan vs. Binu Khan, reported in AIR 1998 SC 2765.
8. Vidya Charan Shukla vs. Tamil Nadu Olympic Association and another, reported in AIR 1991 Madras 323.
9. Rameshchandra Mohanlal vs. Chandaben w/o Mohanlal Bholanath, reported in (2004) 7 GHJ (582),
11. It is the say of the respondents that Civil Revision Application No.1901 of 1984 when was preferred by original defendant No.1 the Court was pleased to direct the trial Court to disposed of the suit on or before 30.11.1984 ( Coram: M.B.Shah, J, as he then was). It is urged that till date, nothing has happened and the suit being Regular Civil Suit No.15 of 1980 is pending for all these years. Before making further note of the submissions of learned advocates of both the sides, Special Civil Application No.2019 of 2004 requires a specific mention, wherein, the petitioners-original plaintiff of Regular Civil Suit No.15 of 1980 had challenged the constitutionality and legality of the order of Civil Judge, Prantij vide its order dated 5.1.2004 passed below application Exh.517. What has been challenged is the order of amendment application preferred by defendants No.2 to 13, 24 years after the evidence of the plaintiff was over and defendant examined 19 witnesses from 17.11.1984 to 6.2.1991. Allowing the amendment application at such a belated stage is objected to and, therefore, the original plaintiffs preferred this Special Civil Application for quashing and setting aside the impugned order passed below Exh.517 on 5.1.2004. The parties being the same, common order is being passed for the purpose of addressing the grievances of both the sides.
12. Learned advocated Mr. Ashish H. Shah appearing for all the petitioners of Special Civil Application No.5007 of 2007 forcefully submitted that there is no clarity either in the original order of converting the agricultural land into non-agricultural land and as to what is the marginal land. Moreover, neither from the map drawn by the Court Commissioner nor from any other documents, position gets cleared and, therefore, unless the evidence is recorded, no direction in respect of construction situated on the suit land can be given to remove the same. He has supported the order of amendment passed by the trial Court on the ground that for deciding the disputes between the parties, such an amendment when is necessary, all other aspects pale into insignificance.
13. Learned advocate Mr. B.P.Munshi appearing for the respondents vehemently submitted before this Court that as to how flagrantly the respondents herein have violated the order of the trial Court. According to learned advocate when there was a specific direction given after recording of Panchnama for restraining the parties to construct further or alienate in any mode or manner, impudently if the parties try to flout such an order, the Court must not take a lenient view and both the trial Court and the appellate Court in this regard have consecutively held in favour of the respondents, and, therefore, in supervisory jurisdiction under Article 227 no interference is needed for exercise of powers.
14. Before adverting to the factual details of the instant case and the submissions made by learned advocates for the parties, it would be apt to mention the scope of supervisory jurisdiction under Article 227 of the Constitution of India as proposed by the Apex Court in the case of Surya Dev Rai vs. Remchanden Rai reported in (2003)6 SCC 675 as also in the case of Raj Miral Pawas vs. State of Gujarat reported in 2011 (3) GLH 257 where it is held that exercise of power of superintendence are required to be exercised sparingly.
15. At the outset, it can be said that no jurisdictional error could be pointed out by the learned advocate for the petitioners. There is no miscarriage of justice, nor is there anything on record to suggest that disregarding the material aspects, the trial Court/appellate Court passed an order or that the considerations regarded while deciding the issue are impermissible under the law. There is thus nothing to suggest manifest illegality that shakes the conscience of the Court for it to interfere in the petition. On the contrary without even dilating the issue, from the record, prima facie, it can be said that the petitioners herein have constructed on the marginal land where they were specifically prohibited to construct and had there been no such order passed, the Courts would have failed in their respective duties if they allow such flagrant violation to continue.
16. With these observations, it can be noted that the subject matter of the suit is a parcel of non-agricultural land admeasuring about 14,762 sq. yards being 3 acres and 2 gunthas bearing Survey No.17/2 Block No.67 situated at village Tejpur of District:Sabarkantha. The property was jointly owned by co-owners, namely, Prabhudas Khodidas and Sankabhai Narandas. The original plaintiff respondents No.1 to 4 herein are the legal heirs and representatives of deceased Patel Prabhudas Khodidas and original defendant No.1 ( respondent No.5) herein is the legal heir and representative of deceased Sankabhai Narandas. Permission was obtained jointly on 9.5.1967 to convert land into non-agricultural land and, thereby, the suit property had been divided into 48 plots. However, the permission for construction on this land was granted only to the extent of 4894 sq.yards and remaining land being 9867 sq.yards, was required to be kept open being the marginal land.
As alleged, there was unauthorized construction on the suit land coupled with encroachment, the original plaintiffs filed a suit being Regular Civil Suit No.15 of 1980. It is also not in dispute that the Court granted injunction in favour of the original plaintiffs and such an order when challenged before the appellate forum, it modified the order. It was modified to the extent that the defendants were restrained from making any encroachment or construction upon the land till the final disposal of the suit. Thereafter, the issues were framed 21.1.981 and the evidence of the plaintiff was recorded from July, 1982 to October, 1984. The defendant also began recordance of their evidence between 1984 to 1990. In between allegedly, on having found that there was encroachment and also construction on the marginal land, Application, Exh.453 which was allowed by the Court was moved for disobedience and after receiving the reply of the other side, the Court decided the application. And, therefore, application for appointment of Court Commissioner for carrying out the Panchnama at the suit land was requested for and the same was granted. After noting details of Panchnama the order was passed on 14.3.2001 directing the defendants to remove the encroachment, as indicated in the Commissioner's report, vide Exh.461/5, within 30 days, the same came to be challenged before the District Judge in Appeal from Order No.30 of 2001 where it remanded the matter back to the trial Court.
Such order was therefore challenged by the original plaintiffs in Civil Revision Application No.573 of 2002, which was permitted to be withdrawn and thereafter, once again, a fresh round of litigationstarted before the Principal Judge, who allowed the application and directed the defendants to remove the encroachment vide its order dated 13.2.2006 and, also further directed restoration of the status quo ante. Appellate forum when concurred with the findings of the trial Court that has resulted into preferring the present petition.
17. As noted hereinabove, both the Courts have appropriately dealt with the entire issue. There is nothing which requires supervisory jurisdiction to be invoked.
18. Inevitable at this stage to mention that there is a growing trend noted in Civil matters where people attempt to flout the order of the Civil Court essentially for two reasons, namely, protracted litigation with considerable delay in adjudication of civil disputes and secondly, the lack of deterrent provision and non-exercise of even those powers which exist on statute book when such violation occurs.
There is yet another disturbing aspect which requires specific mention that despite there being categorical direction of the suit to be decided in the year 1985, such direction of the Higher Court is also not adhered to without even bothering to get the extension or in complete disregard to such specific direction. It is usually the tendency of the party which has no hesitation in taking the law in the hands to construct over the suit land or to alter the condition of the property in such manner that it becomes inevitable for the Court to direct the recordance of the evidence and knowing fully well that such issues could be stretched for a protracted period, parties do not mind violating the law with impunity.
19. The present is also the similar case, where the original permission converting the agricultural land into non-agricultural land recommends construction of the property to be precise 4894 sq.yards and marginal land admeasuring 9867 sq.yards which is an undisputed document.
20. It is further to be noted that the fact is also not in challenge that first such Panchnama effected by the Court Commissioner is at Exhs. No.170 to 173. Subsequently, also when an application under Order 39 Rule 2A was preferred seeking direction to restrain the defendants from making any encroachment or construction upon the marginal land, the Court directed carrying out of the Panchnama by directing local inspection under Order 26 Rule 9 of the Code of Civil Procedure. Learned trial Judge had directed the Commissioner to demarcate the encroachment, if there be any, with red ink, after making comparison with the earlier Panchnama and sketch at Exhs. No.170 to 173. There was no objection on the part of the present petitioners for such local inspection, which was carried out in the month of August, 1980.
The Court Commissioner prepared it after giving notices to both the sides vide Exhs.564 and 565 dated 12.8.1980 and 20.8.1080 indicating the encroachment and further construction by red ink ( Exhs.566). It further emerges from the record that Panch witness Yogeshbhai Kantilal was examined by the original plaintiff and the contesting defendants also in evidence examined many persons ( Exhs.No.572, 588, 598, 601, 619,620 and 631) and, thereafter, on comparing such sketches and the reports, the trial Court vide its order dated 14.3.2001 directed to the defendants to remove the encroachment as indicated in the Commissioners Report within 30 days.
21. It can be also further noted that when application Exh.453 was decided on 13.2.2006, which was confirmed in Appeal from Order No.13 of 2006, there is apparent indication of encroachment in the marginal land.
It would be worth mentioning at this stage that learned advocate Mr. Shah admitted that there was so much of confusion with regard to the marginal land and it was virtually not possible for the parties to ascertain as to which portions of the suit land was marginal land to enable the parties to observe the direction of not constructing over the marginal land. He, of course, had no answer as to why in such event clarification was not sought for from the Court. Had there been any confusion in the minds of the respondents with regard to correct interpretation of the order of the Court or with regard to the marginal lands, which were directed to be left open, nothing would have prevented the respondents from approaching the Court for such purpose.
22. It thus clearly appears that the defence raised for such illegal construction is merely an excuse when defendants are found of having constructed illegally over marginal lands, violating Court's direction. Even if construction has come up on account of any misunderstanding or misinterpretation of the order that would not in any manner lessen the gravity of violation nor can that permit sustaining of the action which is per se in breach of the orders of the Courts. The Appellate Court while concurring with the findings of the trial Court has rightly held that mere comparison of the two maps would also clearly reveal such violation which has rightly been directed to be removed within the stipulated time and, therefore, in the light of the discussion hereinabove, status quo ante is required to be established. No party can take advantage of its own wrong. Allowing the petitioners to continue with the illegality of construction over the marginal land would amount to permitting violators of the law to enjoy the fruits of wrongful acts. It would not only amount emboldening those litigants who have scant respect for the law, but, that would further amount to undermining the authority of the Civil Courts.
Resultantly, this Special Civil Application preferred by the original defendants, being Special Civil Application No.5007 of 2007 merits no acceptance.
23. As regards the challenge to the amendment made after the evidence of the plaintiffs is over, and after examining nearly 19 to 20 witnesses of the defendants, it shall need to be seen as to whether such an amount can be permitted under Order 6 Rule 17 of the Code of Civil Procedure, which permits amendment to the pleadings in post amendment period (After 1.7.2002) only when it is established that despite the due diligence, such amendment was not feasible to be brought to the notice of the Court by the party concerned.
24. Order of the trial Court if is examined, it noted that the trial had already begun recordance of evidence after the issues were framed and the amendment application moved by the defendants was on account of the registered sale deed dated 10.11.1989. This was much after the issues were framed on 21.1.1981 ( Exh.51) but the event of registration having occurred in September, 1989, the Court was of the opinion that the same could not have been brought to the notice of the Court prior to the framing of the issues.
25. There is further note that for the subsequent changes of 1989, the amendment had been moved in the month of June, 2003. Therefore, relying on the judgment of this Court reported in the case of Bhalod Gram Panchayat and another vs. State of Gujarat and others reported in 1986 GLH (UJ) 53, the Court permitted this by granting the cost to the other side.
26. Trial Court did not accept the say of the plaintiffs that nature of the suit changes on account of such amendment nor was the Court convinced that the same is likely to prejudice the cause of the plaintiffs. Having reiteratively noted that the delay caused can be attributed to the defendants by filing amendment application at a belated stage, the Court allowed the application after the detailed discussion of various authorities and the provisions of the law by its order dated 5.1.2004.
27. Considering the scope of Article 227 of the Constitution of India and also keeping in mind the findings of the Court, wherein it noted that the original plaintiffs themselves have added the defendants No.2 to 38 as the party defendants on account of the registered sale deed effected in favour of those defendants by original defendant No.1 on 10.11.1989. The subsequent amendment sought by the defendants after delay of about 12 years was held not to be changing the nature of the suit nor was it to be found to be jeopardizing the interest of the plaintiffs. Undoubtedly it is at much belated stage that such amendment has been sought but as the Court has noted that such change was already brought on the record, at the behest of the original plaintiffs and, therefore, the subsequent amendment sought by the defendants and allowed by the Court in aforementioned circumstances require no interference. However, cost granted is in the opinion of this Court less since the plaintiff may need to provide for additional evidence or recall witnesses in his defence, which has been long over. Under the circumstances, by granting cost of Rs.10,000 to the respondents-original plaintiffs and thereby making modification in the original order. Resultantly, this Special Civil Application is allowed to the limited extent by modifying the order of cost of the trial Court to the extent above only.
Both the petitions being Special Civil Application No. 5007 of 2007 and Special Civil Application No. 2019 of 2004 are disposed of accordingly.
Civil Application No.163 of 2005 in Special Civil Application No. 2019 of 2004
In view of the order passed in the main petitions, no order is required to be passed in Civil Application. Civil application is disposed of accordingly.
(Ms. Sonia Gokani, J. ) sudhir