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Judgment
Smt. R.S. Dalvi, J.—The appeal is filed against the order of the Civil Judge, Senior Division, Bicholim dated 21.04.2008 holding the defendant in the suit to have willfully breached the order of temporary injunction passed in the suit by putting up a compound wall. The order partly granted the plaintiff''s application under Order 39 Rule 2 A and Rule 11 of the Civil Procedure Code. The order directed the defence of the defendant to be struck off under Order 39 Rule 11 of the Civil Procedure Code. The suit came to be filed on trespass on08.04.2002. The plaintiff prayed for peaceful and vacant possession of the suit property bearing surveyno.36/1, 14/1 (part), 37/1, 13/1, 12/2, 4/22 (part),12/1 (part), 48/1, 15/1 (part) shown in red colour in Exh. P to the plaint to be handed over to the plaintiff .The plaintiff also prayed for permanent injunction restraining the defendant to enter upon the suit area. The suit was also for compensation and damages of Rs.1000/-per year until the possession was handed over. The plaintiff claimed to be the owner of the suit property. In paragraph 9 of the plaint the plaintiff averred that on 29.08.1998 upon a survey of the suit property by the plaintiff''s personnel, the plaintiff found the defendant having encroached the suit property and having erected a temporary wooden fencing and cultivated cereals. The plaintiff took out an application for temporary injunction being Civil Misc. Application No.47/2002.In the application the plaintiff stated that the defendant was dumping truck loads of loose stones with an intention to construct a compound wall. The plaintiff apprehended that the defendant would construct the compound wall of loose stones which would change the nature of the suit property.
The defendant filed written statement in July 2002. The defendant inter alia averred that he was in peaceful and cultivatory possession of the suit property. He denied the averments in paragraph9 of the plaint except that he had erected a temporary wooden fencing and cultivated cereals.
Hence it is seen from the pleadings of the parties that there was a temporary wooden fencing around the suit property encroached by the defendant at the time of the filing of the suit and the application for temporary injunction. It was the plaintiff''s case that the defendant had dumped loose stones and would construct a compound wall of such loose stones.
The order of temporary injunction has been passed on 16.08.2002. The order restrains the defendant from constructing any loose stones compound wall in an around the suit area and further encroaching in the suit property beyond the area identified in red colour in Annexure ''P'' annexed to the plaint.
It is therefore, clear that a part of the plaintiff''s property was encroached. The encroachment was fenced with barbed wire. The defendant had dumped loose stones in the suit area. The defendant was not to construct any compound wall of loose stones. There was no such construction of loose stones compound wall prior to the filing of the suit and the order of injunction.
It is the plaintiff''s case that the defendant started to construct loose stones compound wall after the order of injunction was passed, which was reported by the plaintiff''s personnel. A criminal complaint was filed. In the application under Order 39 Rule 2 A and Rule 11 of the Civil Procedure Code, the plaintiff has stated that on29.09.2003 despite the order of injunction the defendant put up loose stone compound wall in the suit area and willfully disobeyed the order of injunction. The defendant was questioned by the plaintiff''s personnel. The defendant threatened them. The plaintiff took certain photographs on30.09.2003 through a professional photographer, which the plaintiff has relied upon.
The defendant replied to the said application. The defendant denied having illegally carried out the construction of the compound wall. For the first time, the defendant stated that the said compound wall was already existing prior to the filing of the suit and the order of injunction.
Hence the lis between the parties is extremely narrow. It has been the defendant''s case in the application that there is no breach of the order as the compound wall existed prior to the filing of the suit and the injunction. If that was the case then that material fact would have formed a part of the defendant''s written statement. That fact would have been considered and order of temporary in junction would not have been granted. The order of temporary injunction granted since 16.08.2002 has not been challenged. It proceeds on a footing that there is no compound wall of loose stones. There was admittedly a barbed wire fencing instead. Upon this defense itself in reply to the application, the breach is prima facie seen. Nevertheless, the learned Judge has recorded the evidence of the parties in the application.
The plaintiff has examined three officers and one photographer to prove the breach of the order of injunction. Pw.1 has stated how on 29.09.2003 the wall was constructed and on 30.09.2003 police complaint was filed and photographs were taken. His cross examination has shown that the length of the compound wall is 200 mtrs. (running). Pw.2 has also stated about the passing of the order and putting up of the compound wall. He questioned the defendant whilst the defendant was putting up the compound wall and he has stated that the defendant even tried to assault him. When he saw the construction, here ported to the Manager Mr. Raikar who came to the spot. His cross examination shows that the total property of the plaintiff is partly fenced with barbed wire and partly with loose stones. The suit area is also fenced with barbed wire That was the case in paragraph 9 of the plaint which was admitted in paragraph 9 of the Written statement. He denied the suggestion of the defendant that the loose stone compound wall existed since the time of the defendant''s father or that the defendant had repaired it or that the defendant had dumped loose stones in the property five to six years prior to the institution of the suit. His cross examination further shows that he saw the defendant constructing the compound wall in the morning hours.
Pw.3 likewise saw the construction and questioned the defendant. His cross examination shows that out of the total area of plaintiff''s factory premises of 100 hectares, 40 hectares was under cultivation the total area was fenced with partly barbed wife and partly with loose stones. The suit area was not fenced. The witness has deposed about the fencing and the wall constructed by the plaintiff. Hence what was in the suit area would not have been constructed by the plaintiff, which is precisely why it has been encroached. The fact remains that the pleadings show the area fenced and that aspect admitted. Admitted facts are not required to be proved. His evidence further shows that he had gone to the suit property for the purpose of paying a visit (i.e. to inspect it) when he noticed the construction of the compound wall.
The photographer examined as Pw.2 has produced the photographs along with the negatives. They have been marked Exh.1/C colly in the evidence. He has identified the trees in the plot. The work was not going on when the photographs were taken. The photographs were taken on 30.09.2003. The defendant was seen constructing the compound wall in the morning of 29.09.2003. The construction was of loose stones which could have been completed within a day. The evidence of the photographer shows that the photographs show the completed construction. They were taken from the nearest road. Only staff members were present when the photographs were taken. The photographs are accordingly proved.
The defendant''s evidence shows that the compound wall was in existence since the time of his father. The compound wall was demolished/collapsed at some places which he repaired. The compound wall collapsed 10 to 12 years prior to the filing of the suit. The evidence of the defendant has been rejected by the learned Judge. His cross examination shows his admission that he had brought truck load of loose stones which he had dumped in the suit property. His evidence is rightly rejected. The case of existence of the compound wall is put up for the first time. It cannot be accepted in view of the admission of fencing of barbed wife and the order of injunction. If the defendant desired to repair the wall he should have taken the permission of the Court.
The learned Judge has rightly held that the defendant beached the order of injunction. The breach was wilful. The application under Order 39 Rule 2 A and 11 therefore lies. The learned Judge is required to exercise discretion in granting reliefs under Order 39 Rule 2 A or Rule 11
Both the plaintiff and the defendant have challenged the order. Appeal from Order 13 of 2009challenges the order in toto. The defendant contends that there is no breach. The unregistered writ petition of 2009 challenges it in part upon the fact that the order which was passed is only under Rule 11 and not under Rule 2 A of Order 39. The petitioner presses for reliefs under Rule 2 A. The learned Judge has correctly exercised discretion. The defence is rightly struck off. Further punitive action is not required. The plaintiff''s suit stands decreed. The plaintiff would be entitled to execute the decree .Both Appeal from Order and the Writ Petition are dismissed. The plaintiff shall get its writ petition registered/numbered.