1. The petitioner is a tenant of premises 3, Convent Road Dehradun. Smt. Sarla Devi Sharma is the owner/land-lady of the house. Towards east of the said accommodation exist a servant tenament after the boundary wall where three opening for outlet for water, rain and flood water used to flow since long. The servient tenaments premises 35/1 had always been on lower level than that of dominant tenament. The respondent No. 3, Dr. M. Singh, started raising constructions over the servient tenament in the month of November, 1982, through architect Sri S.A Khan who was his agent. The petitioner apprehended that the three existing out lets in the boundary-wall openings to the servient tenament was going to be closed by respondent. A civil suit was thus filed by the petitioner impleading Dr. M. Singh as defendant No. 1 and S.A Khan as defendant No. 2 seeking injunction restraining the defendants Nos. 1 and 2 for closing or disturbing the flow of the water of the dominant tenament through the three outlets in the eastern boundry-wall. The petitioner is a teannt in the premises in question i.e the dominant tenament since 1955. The allegation in the plaint was that the dominant tenament was enjoying the easementary right of flowing all rain and flood water through the three outlets inthe boundary-wall towards the servient tenament since more than 50 years back, and has matured right of easement. The original suit was filed on 25-11-1982 with an application for interim injunction. The Court was pleased to issue an ad-interim injunction on 26-11-1982 as under:—
“………… Issue notice, fixing 20-12-1982 for objection and disposal. Meanwhile the defendant No. 1 is restrained from closing the outlets in suit or from obstructing the flow of water from these outlets or get the same done through defendant No. 2 …………”
2. The injunction order was communicated by registered post on 26-11-1982 and personally served to respondent No. 3 on 3-12-1982. The defendant No. 2 Sri S.A Khan was also served with a copy of the interim injunction.
3. It is said that the defendant-respondent No. 3 of the writ petition had visited from Bombay between 3-12-1982 to 20-12-1982. On 20-12-1982 an application was filed on behalf of respondent No. 3 in the civil suit seeking time for filing objection to the injunction application which was allowed. Winter vacation in the meantime intervened. The petitioner had submitted an application on 21-12-1982 for issuing the commission for reporting the spot position at the disputed site. Sri Naresh Kumar was appointed as an advocate-commissioner for the said purpose. In between 20-12-1982 and 25-12-1982, respondent No. 3 and Sri S.A Khan, the architect, got the land of the servient tenament filled and covered with earth up to such hight that all the three outlets in the eastern boundary of the petitioner's dominant tenament were closed. The advocate-commissioner submitted a report that the level of the land was raised freshly by filling by earth. The report was submitted before the court on 2-2-1983.
4. The petitioner filed an application under O. 39, Rule 2A of the Code of Civil Procedure, C.P.C in brief, for action against respondent No. 3. Opposite party filed his objection in the said case on 26-4-1983.
5. In the proceedings under O. 39, R. 2A, affidavits were filed by the parties. The petitioner flied his personal affidavit and affidavit of Smt. Parwati Devi Jha, owner of the building and the affidavit of Sri S.A Khan architect, were also filed, Sri S.A Khan in his affidavit stated that he received the injunction order issued in Suit No. 461 of 1982 and he had admitted that under the instructions of the defendant No. 1, he had got the earth filled in the open strip of the land lying in the rear of the building behind the building of defendant No. 1 and towards the eastern boundary-wall or Sri K.L Virmani and raised the level thereof, blocked the mouth of the said three outlets on the eastern side so that rain water could not flow through them. The respondent No. 3 filed his personal affidavit denying the fact that there was any easementary right for flowing water through the said appertures. He denied to have closed the mouth of the alleged outlets between 21-12-1982 and 25-12-1982 through Sri S.A Khan, or otherwise as alleged or in any manner. The respondent further set up a case that he is not the owner of the plot. In fact, the building under construction is owned by Smt. Savita Singh. It is to be noted that Smt. Savita Singh is none else but the wife of respondent No. 3, Sri M. Singh. The respondent No. 3 stated that between 20-12-1982 and 25-12-1982 he was at Bombay and was not present at Dehradun to get the construction or openings closed by filling earth.
6. It is important to note that in the meantime the civil suit for injunction filed by the petitioner has been decreed for permanent injunction restraining the defendants from closing the openings used for outletting of rain and flood waters. The said judgment has become final as no appeal has been filed against the same.
7. The application for action under Order 39, Rule 2A, C.P.C was considered by the learned trial court and by judgment dated 13-7-1987 the learned II Additional Civil Judge declined to take action against the respondent relying mainly on a decision reported in 1962 ALJ 201: Ram Shanker v. Suraj Prasad. The decision (supra) lays the law that a suit and appeal when concluded, the Court becomes functus officio and has no power to pass any orders for disobedience of the interim injunction or taking any action on such application complaining disobedience of injunction. The learned court aforesaid proceeded with the premises that the suit had already been decided finally and the complaint of disobedience by the respondent now cannot be taken congnizance of by the court on the basis of the aforesaid decision.
8. The learned counsel for the petitioner submitted that the provisions of O. 39, R. 2A, C.P.C provides for punishment to the contemner and does not provide remedy for correcting the wrong by providing relief against the disobedience of the orders of the Court. In such circumstances, it is always the duty of the court to exercise its inherent powers and jurisdiction to undo the wrong done already by disobeying the order. It was submitted that the view taken by the learned Civil Judge that there is no question of the execution of the interim order passed in the suit in the light of the provisions of O. 21, R. 32 of the C.P.C But the question is of granting immediate relief to the aggrieved party which could be done under inherent power. It was further submitted that no party can be allowed to disobey the orders of the court and then to taken advantage of his own wrong. The learned counsel submitted that the Court had ample power and jurisdiction to direct the contemner to undo the wrong in addition to the punishment. As such, the learned trial court incorrectly applied the provisions of law. The learned counsel for the petitioner cited AIR 1975 All 48: Hari Nandan Agarwal v. S.N Pandita. The Division Bench in the said case observed that if a person has been dispossessed by wilful disobedience of an order of injunction granted by the court which issued the injunction order after considering the circumstances of each case and the conduct of the parties has been apparently to show there has been wilful disobdience, then it would be the duty of the court to undo the wrong in favour of the party in whose favour the order of injunction was issued. The exercise of this inherent power vests in every court and is based on the principle that no paty can be allowed to take advantage of its own wrong in spite of the order passed contrary by the Court. The Allahabad Division Bench relied on a case reported in AIR 1956 Pat 455 State of Bihar v. Usha Devi, reported in AIR 1963 Raj 3 Magna v. Rustam. The aforesaid decision clearly shows that the court does not become powerless and even after the suit has been decided the mischief caused or the wrong done by the respondent has to be remedied and undone by the Court exercising inhereint powers. The case relied on by the learned Civil Judge reported in 1962 ALJ 201 relied on the provisions of Order 39, Rule 2A of the C.P.C as it stood prior to the U.P Amendment of 1970 and the amendments in the Code of Civil Procedure by the Central Act in 1976. The provisions of amended Code are admittedly applicable to the present case. The view of 1962 ALJ 201 (supra) based on the unamended C.P.C is no more good law and has no application for the present circumstances of the case.
9. The respondent set up a case that the owner of the disputed premises is Smt. Savita Singh and the respondent No. 3 has denied to be present at the site during the period when the outlets in question were closed by filling earth. The architect who was working at the instance of respondent No. 3 had filed his affidavit and stated that he had filled the strip of land with earth at the instance of respondent No. 3. The respondent No. 3 stated that he had been away from Dehradun at the relevant time and also said that the petitioner has no right of easement. Now, after the judgment of the civil court decreeing the petitioners' suit for injunction accepting the easementary right, it is no more open to the respondent to plead otherwise and deny that there is no easementary right of flowing rain and flood water through the disputed outlets. The technical plea raised is that owner of the premises is Smt. Savita Singh and the respondent is not the owner and he has no concern with the same. The judgment of the learned Civil Judge shows that he mainly proceeded on placing reliance on 1962 ALJ 201 (supra) and has not noticed the relevant amendments made in the Code otherwise he would have invoked the inherent jurisdiction under O. 39, R. 2A. The question whether an agent of the defendant can be proceeded against in a proceeding under O. 39, R. 2A of the Code as amended by 1976 Act, the Patna High Court in AIR 1983 Pat p 278: Ram Pd. Singh v. Subodh Pd. Singh has held that a person is liable to be proceeded against under O. 39, R. 2A of the Code even if he was not presently party to the suit provided he is shown to be the agent or servant of the defendant and to have violated the orders of the Court in spite of knowledge that there was such an order. The respondent No. 3 is the husband of the owner of the premises. The architect stated on affidavit that the appertures were closed at the instance of the respondent No. 3. It is wholly immaterial whether the respondent was personally present at the time of actual closing of the outlets or not and whether he was a party in the suit or not.
10. After hearing the learned consel for the parties at length, I am of the clear opinion that the petition is not to be decided on mere technical view. The justice is to be done between the parties. The suit was filed in 1982 and the injunction was granted in December the same year. The respondent No. 2 had been adopting delaying tactics by seeking adjourments by filing objections to the injunction application and thereby has tried to take advantage of the intervening winter vacation and in the mean time got the strip of land filled with earth and closed the said appertures utlised and enjoyed by the dominant tenament for draining rain and flood water through the servenient tenement. The Court was pleased to direct the parties to file the copy of the site plan and sought categorically information whether the height of the servient tenement is higher than the outlets in the disputed wall of the petitioner. It has been established from the evidence on record that the outlets have been closed by filling earth on the strip of land by the opposite parties. Thus, this is a clear case of defiance of the injunction order by creating perpetual obstructions in the flow of rain and flood water from the dominant tenament to flow through the servenient tenement. After considering the submissions of the learned counsel for the parties and examining the record, I am of the opinion that the wrong done has to be remedied and suitable direction be issued to undo the mischief by the respondent No. 3. The learned counsel for the opposite parties stated that this court is not competent to issue any writ of mandamus to a private individual. He relied on 1991 ARC 231 : AIR 1991 All 114), Ganga Saran v. Civil Judge, Hapur Ghaziabad. No doubt, the Full Bench case aforesaid of our court is of the settled view that a writ of mandamus is not to be issued against a private individual unless he is required to perform certain statutory function. The Court after arriving at the conclusion that the respondents have defied and disobeyed the order of injunction passed by the Civil Court and the application for action under O. 39, R. 2A was dismissed, I deem it proper and hereby direct that the judgment dated 13-3-1987 and 5-7-1988 (Annexure 9 and 10 to the petition) passed by the lower courts are quashed.
11. The learned trial Court is directed to pass suitable orders on the application of the petitioner for taking action under O. 39, R. 2A, C.P.C in the light of the observations made above. The learned court below may get the wrong committed by the respondent No. 3 undone by passing a direction to the respondents to affix the drain pipes connecting with the outlets through the strip of land so that the rain and flood waters which accumulate at the dominant owner's premises may pass through the drain pipes without damaging any part of the building of either of the parties. The pipe so directed to be affixed may be of the diameter of 5″ inches. However, since the respondents have done the wrong, the respondent No. 3 shall have to bear the expenses for such affixation as directed above which affixation may be done within 6 months from the date of order passed by the court below. The Court below shall pass the final orders very expeditiously, if possible, within 2 months from the date of filing of the certified copy of this order.
12. In the result, the petition is allowed. The parties shall bear their own costs.
13. Petition allowed.