JUDGMENT D.K. Seth, J.
1. On an application under Order XXXIX, Rule 2A of the Code of Civil Procedure Misc. Case No. 33 of 1991, before the learned Additional Civil Judge (Senior division) Allahabad was registered. By an order dated 22.9.1997 the satd Misc. case was decided against the petitioner holding that he is guilty of violating the order of status quo passed in Original Suit No. 419 of 1989 on 4.10,1989 and, therefore, he was punished by way of Civil Imprisonment of fifteen days. Misc. Civil Appeal No. 271 of 1997 was preferred by the petitioner. The learned District Judge. Allahabad by an order dated 8th May, 1998 dismissed the said appeal and thereby affirmed the order passed by the learned Civil Judge, Senior Division. This order has been challenged in this writ petition.
2. Sri R. N. Singh, learned senior counsel, appearing on behalf of the petitioner contends that the said order is wholly perverse. Since it has not interpreted the scope and extent of the order of status quo and has also not taken into consideration the merit of the case, which is the relevant factor for the purposes of determining the issue. He also contends that the entire appeal court order is based on the evidence of the plaintiff which has been accepted by the appeal court only on the ground that it was not rebutted. According to him, even if evidence is not rebutted the same cannot be acted upon, in view of the decision In the case of M/s. Simplex Conceret Piles Ltd. v. S. Ahmad, 1977 AWC 644. He further contends that the order was passed ex-parte without affording any opportunity to the petitioner and refusing his application for recalling the order of hearing ex-parte, relying on the past conduct of the petitioner, which cannot be looked Into while deciding the application for recalling the order and for expeditious hearing. According to him, it Is to be decided independently on the past conduct of the petitioner, as held in the case of Qaiser Sibtain v. District Judge, Allahabad and others, 1996 ACJ 516. He contends further that the application for interim order is still pending and the same having not been decided, it was not open to the Court to proceed with the proceeding under Order XXXIX, Rule 2A of the Code, as has been held in the case of State of Jammu and Kashmir v. Mohd. Yaqoob Khan and others, 1992 (2) UPLBEC 1166. His last contention was that the allegations as made in the application does not warrant the order that has been passed in the said proceeding, apart from the fact that snapping of telephone wire or Installation of Motor pump in the water line in no way disturb the status quo since the property is in possession of the petitioner, which fact has already been admitted by the petitioner at subsequent stage, though denied at an earlier stage. He has further submitted that the learned Court below proceeded on the basis of statement of the plaintiff alone ignoring all other relevant materials placed before the Court namely the affidavits, which are also relevant factor and which should have been taken note of and thus the omission leads to perversity in the order itself.
3. Mrs. S. Rathi, learned counsel appearing on behalf of respondent, assisted by Miss Gauri Singh. learned counsel, on the other hand contends that both the Courts having come to a concurrent finding that there has been violation of the interim order of status quo, this Court sitting in revisional jurisdiction cannot enter into such concurrent finding of facts and, therefore, this Court should not interfere with the order Impugned. She also contends that from the material on record, the Court below was justified in coming to the conclusion. The conclusion that has been arrived at is concluded by the fact of belief and disbelief, with which this Court cannot interfere while exercising revisional Jurisdiction. She further contends that the report of the Commissioner was taken into consideration by the trial court and had also considered other materials and had come to the finding that the petitioner had violated the order of status quo. The appellate court has also relied upon the Statement and evidence of the plaintiff and had come to a finding of fact that since the same was not rebutted despite sufficient opportunity was afforded to the defendant. She also referred to the conduct of the proceeding, which according to her reveals a very negligent conduct of the case by the defendant. She has pointed out that the defendant was never diligent and never seriously conducted the case. He neither completed his cross examination of the plaintiff who examined himself as P.W. 1 nor the petitioner had made himself available for being examined. She has also pointed out that on many occasions the defendant did not care to appear in the proceeding. Even on such circumstances the cases ,were adjourned and some other dates were fixed. Thus according to her despite haying been given sufficient opportunity to contest the case, if the defendant-does not contest the same. The evidence of the plaintiff has gone unrebutted and the Court had no option but to accept the same. She points out that there were sufficient material to show that the defendant was guilty of violating status quo. She has relied on various decisions in support of her respective contention which shall be dealt with at appropriate stage.
4. I have heard Sri R. N. Singh, learned senior counsel for the petitioner and Mrs. Rathi, learned counsel appearing on behalf of opposite parties at length.
5. It is a settled principle of law if the evidence is not rebutted and if the affidavit is uncorroborated, it is open to the Court to accept the same and proceed on the basis thereof. If the defendant did not care to rebut such evidence despite having been given successive opportunities to cross-examine the witness and despite opportunity having been made available to him to cross-examine and rebut the evidence, the same having not been availed of, he cannot question the acceptance of such unrebutted evidence by the Court . Therefore, the contention that was raised by Sri R. N. Singh, learned senior counsel, relying on the decision in the case of M/s. Simplex Conceret Piles Ltd. (supra) cannot be sustained. In the said case the question of acceptance of oral evidence was not under consideration. It was the affidavit which was not countered by another counter-affidavit was the subject-matter of consideration. In the said case, it was held that the affidavit even if, not countered by any counter-affidavit, has to be accepted on the basis of its intrinsical value as it is worthy of acceptance. This proposition is well-established proposition, with which there can be no two opinions.
6. Admittedly, unrebutted evidences can be accepted and believed, but then it is the duty of the Court to scrutinise the evidence as to how far the same establishes the case of a party leading such unrebutted evideriee, simply because the evidence was not rebutted and is acceptable, that does not absolve the Court of its responsibility in order to come to the conclusion as to whether it enables the parly to establish his case. In other words, whether the evidence that has been accepted proved the case so as to arrive at a conclusion and coming to a finding with regard to the case sought to be made out as against the party, who has been unable to rebut the said affidavit.
7. Having regard to the orders passed by the learned trial court, it appears that the order that was granted was to the extent that the defendant shall not alienate the disputed property till the date fixed. The parties are hereby directed to maintain status quo regarding the disputed property till the date fixed. In the present case, now it is an admitted position that the petitioner was also in possession of the part of the property, which also finds support from the plaint itself where the petitioner has been described as care-taker occupying certain quarter. Therefore the possession of the petitioner is admitted even in the plaint. The order of status quo would not have the effect of dispossessing the possession of the petitioner nor can it have any effect on the enjoyment of the property by the petitioner so far as it is in his possession. Neither can it have any impact on the manner of enjoyment of the property in his possession. The status quo would only amount to the extent which would amount to changing the nature and character of property. In the present case, it is not being alleged that the property have been alienated. So far as snapping of telephone wire or installation of motor pump in the water line is concerned, that will not alter the status quo. If such interpretation is made, in that event it will have the effect of converting the order of status quo into prohibitory injunction prohibiting the petitioner in his enjoyment of property, which is admittedly in his possession, be that as trespassers or otherwise. But then there is no finding by the appeal court to the extent that the telephone wire was snapped or water pump was installed.
8. So far as the finding of the trial court is concerned, it has based its finding on the basis of report of the Commissioner. The finding of the trial court is to be examined on the basis of material which has been relied on for the purposes of coming to such question. This question has been dealt with by the appellate court where he had found that the Commissioner had submitted two reports on 30th November, 1995. being Paper Nos. 20A and 22A which do not contain any material which may decide the present issue. It appears that he had filed another report on 22.12.1995 which was alleged to have been typed on 30.11.1995. The second report appears to be different from the first report. The appellate court found that both the reports having been typed on the same day, how could one be filed on a later date. He had also come to a finding that the said report dated 22.12.1995 was secretly taken on record, about which no information was given to the petitioner neither any opportunity was afforded to the petitioner to file objection thereto. Thus, he has come to a finding that the second report was smuggled into the record. On this basis, the learned appellate court has discarded the second report as waste paper. Thus, In view of such findings of the appellate court, with which I do not find any reason to differ, to discard the finding of the trial court, based on the Commissioner's report, appears to be without any foundation and as such cannot be relied upon.
9. The appellate court had also discarded one report of the City Magistrate on the ground that the same was not admissible in evidence because of absence of its proof and was not properly brought on record. It had also discarded the Commissioner's report. The appellate court had proceeded only on the basis of para 17 of the judgment of the appeal court. In the said para he records that the only evidence which remains in support of the case of the respondent is his statement on oath. A plain reading of para 17 shows that the appellate court had relied on the oral evidence of the plaintiff alone. He has neither considered the affidavit filed by the plaintiff or the counter-affidavit filed by the defendant. In a proceeding under Order XXXIX. Rule 2A of the Code the affidavits are also material. Application under Rule 2A was submitted by an affidavit on the basts whereof the case was made out. which was sought to be supported by oral evidence, Similarly the case was sought to be defended by the defendant through his counter-affidavit. This counter-affidavit would have been supported by oral evidence. Even if it is not supported by oral evidence but still then it formed material on record, from where the defence that has been made out appears to be on record. The omission to consider such material definitely is an omission to consider the material on record. Such omission leads to perversity in the finding, when it completely ignored the other materials. The question was required to be considered balancing the cases made out by either of the parties and the material placed before it. Nowhere in para 17 of the judgment or any where of the judgment the appellate court has endeavoured to come to in a finding on the basis of material that has been led by the plaintiff as to whether it has proved the case made out by the plaintiff. It has simply accepted the evidence of the plaintiff. It has not examined as to after acceptance of such evidence, whether the said evidence proves the case of the plaintiff.
10. My attention was also drawn to the evidence led by the plaintiff. In the said evidence the plaintiff had pointed out that on 12.12.1990 the petitioner had taken possession of the open space of the property. It has not been pointed out as to what was the open space that has been occupied, what is the extent and at which portion and at which direction the said open portion is situated. It has also been alleged that in 1995 a room was constructed. It was not pointed out as to which place such room was constructed and what was the nature of the room and as to how it was constructed. It has also not mentioned the date or month when the said construction was made. It has also not been pointed out that this construction has been made near the well. Whereas the trial court had come to the finding that such construction has been made near the well. It may be on the basis of report of the Commissioner which was filed on 22.12.1995. When the report of the Commissioner of 1995 and the application under Order XXXIX, Rule 2A of the Code was filed sometimes in 1995, it cannot go into the question which is alleged to have taken in 1990 with regard to possession of open space.
11. Then again the appeal court has not come to any finding on the basis of material as to what was violation of the status quo with regard to the property. He has not come to any finding as to how the petitioner has violated the order of status quo. Thus, it appears that the finding of the appeal court as well as that of the trial court as discussed above, does not lead us to decide how the petitioner was guilty of committing contempt, as has been sought to be alleged by the plaintiff. Therefore, the outcome of the appeal as has been recorded in the order dated 8th May, 1998 by the learned District Judge, appears to be wholly perverse and contrary to his own findings. Inasmuch as on the prayer of the plaintiff a Commission was Issued and the Commission had made spot Inquiry and submitted its report but the Commissioner's report did not mention anything and when second Commissioner's report was discarded the first report remained on record. This has also to be considered by the appeal court. While accepting the oral evidence, it should have also taken Into account the first report of the Commissioner and ought to have examined the worthiness of the oral evidence having regard to the counter-affidavit as well as the first report of the Commissioner.
12. Mrs. Rathi had relied on the decision in the case of V. Ram Chandra Ayyar v. Ramalinga Chettiar. AIR 1963 SC 302, in order to contend that the High Court cannot Interfere with the conclusion of fact recorded by lower appellate court, however erroneous it may be. There is no doubt about the said proposition. But at the same time, the said Judgment has also held that in case where the finding is perverse or such as no reasonable person can arrive at such conclusion the above principle of non-interference will not apply. The present case being one under the tatter class can very well be interfered with following the ratio of the said case.
13. She next relied on the decision in the case of Syed Yakoob v. K. S. Radhakrishnen and others, AIR 1964 SC 477. to support her contention that while exercising writ jurisdiction High Court does not exercise appellate jurisdiction and as such cannot correct error of fact. In the said case, it was also held that an error of law can be corrected under the said Jurisdiction. In the present case. It is pot the question of sufficiency of the material or the drawing of Interference from such material. But it is a case of no finding at all coupled with non-consideration of material facts--cases which are excepted by the established principle of law.
14. Then she relied on the case of Narain Singh v. Hardayal Singh Harika, AIR 1958 Punj, 50, and contended that however unjustified the order may be vlolatlve thereof would definitely entail attraction of contempt. There is no doubt about the proposition. But here in the facts and circumstances the said ratio has no manner of application since such a point is not in issue in this case.
15. She next contends relying on the decision in the case of State of U. P. v. Radhey Shyam Tripathi, 1983 Cal LJ 1153, in a contempt proceeding particular law of evidence does not govern the procedure. But in the said case, It has been held that the Court has undoubtedly to be satisfied that contempt has been committed adopting Its own procedure for deriving satisfaction. Here in this case, the procedure is not in dispute. The question is whether the satisfaction arrived at can be so arrived by any reasonable person. Therefore, this decision does not help her in the facts and circumstances of the case.
16. The decision in the case of Advocate General State of Blhar v. M/s. Madhya Pradesh Khair Industries and another, 1980 (3) SCC 311, cited by Mrs. Rathi does not apply in the present case since it was related to contempt regarding abuse of process which is not the case here.
17. In that view of the matter the petition succeeds and is allowed and the order dated 8.5.1998 passed by the District Judge, Allahabad in Appeal No. 271 of 1997 and the order dated 22.9.1997 passed by the learned Additional Civil Judge, Senior Division. Allahabad in Misc. Case No. 33 of 1991 is hereby set aside.
18. In that view of the matter, it is not necessary to go into other questions and citations as raised by Sri R. N. Singh and Mrs. Rathi, respectively.
19. Before parting with the case, I may observe that the ad interim injunction order was issued sometimes in 1990 till the next date fixed, but uptil date the same has not been decided. Therefore, it is expected and desired that the application for temporary injunction should be decided on its merit as early as possible, preferably within a period of three months of the reopening of the Court after long vacation.
20. There will, however, be no order as to costs.
21. Let a copy of this order be given to the learned counsel for the petitioner on payment of usual charges within a week.