K.T Sankaran, J.:— The respondent filed O.S No. 386 of 2009 on the file of the Court of the Munsiff, Muvattupuzha against the petitioners for declaration of title and for permanent prohibitory injunction restraining the defendants from trespassing upon the plaint schedule property. The suit was filed on 21.8.2009 Along with the suit, I.A No. 2310 of 2009 for temporary injunction and I.A No. 2311 of 2009 for appointment of a Commissioner were filed. A Commissioner was appointed as per the order dated 22.8.2009 In the injunction application, notice was ordered and the application was posted to 10.9.2009 On 10.9.2009 the following order was passed.
“The respondent appeared. No objection filed. Parties are directed to maintain status quo as noted by the Commissioner until further orders. For objection if any and hearing to 21.10.2009”.
2. On 8.9.2009 the plaintiff filed I.A No. 2417 of 2009 to appoint a Commissioner. In the application for appointing a Commissioner, the plaintiff stated that after the date of first inspection, the defendants cut down trees and committed mischief. I.A No. 2417 of 2009 was filed for a direction to the Commissioner to ascertain the changes affected to the property, the details of the trees cut etc.
3. On 10.9.2009, the court below allowed I.A No. 2417 of 2009 and appointed the same Commissioner to inspect the property. The plaintiff filed I.A No. 2844 of 2009 under Section 151 of the Code of Civil Procedure alleging that the defendants altered the status quo of the suit property, in flagrant violation of the status quo order passed by the court. The petitioners/defendants filed objections to that application. The court below, by the order impugned in this Original Petition, allowed the application and directed the defendants to remove the shed constructed by them in the plaint schedule property.
4. The court below found in the order impugned that on 10.9.2009, an order of status quo as noted by the Commissioner was passed. It was also found by the court below that subsequent to the filing of the suit, the first defendant transferred the property in favour of his son, who was impleaded as supplementary second defendant. It was held that the second defendant was also bound by the order of status quo passed by the court below.
5. The learned counsel for the petitioners submitted that for the first time, an order of status quo was passed on 5.10.2009 and no order was passed on 10.9.2009 He also submitted that the shed was constructed after 10.9.2009 and before 5.10.2009 The counsel submitted that the order of status quo was not violated and therefore, the court below was not justified in passing the order impugned.
6. The learned counsel for the respondent submitted that an order of status quo was passed on 10.9.2009 and the offending acts were committed after the date of the order. The counsel submitted that the Commissioner inspected the property thrice. On 10.9.2009, the counsel appeared for the defendants before the court below. The defendants were aware of the order passed by the court below. The offending acts were committed by the defendants in flagrant violation of the status quo order. The construction was made to overreach the process of the court and to deny the plaintiffs the fruits of the order passed by the court below.
7. As there arose dispute as to the date on which the order of status quo was passed, the records were called for from the court below. It is seen from the application for injunction that an order of status quo was passed on 10.9.2009 The counsel for the petitioners submitted that the A Diary does not show that such an order was passed on 10.9.2009 Certified copy of the entries in Diary Register (A) on 10.9.2009 and 5.10.2009 were produced by the learned counsel for the petitioner.
8. The entry on 10.9.2009 is as follows:
“Defendant appeared through Advocate Prasad M. Baby. I.A 2417 of 2009 allowed. Advocate Remya A. Ravi is appointed. Pay Rs. 1,000/- as C.B For CR and written statement to 21.10.2009”. There is no mention of any order in I.A No. 2310 of 2009 in the A Diary. The counsel pointed out that in the Civil Register No. 22, namely, Diary Register (A), three columns are to be filled up. They are (1) date, (2) number of suit, appeal or petition, and (3) purport of proceedings. Going by the A Diary, on 10.9.2009, no order was passed on I.A No. 2310 of 2009. According to the learned counsel for the petitioners, since the A Diary does not show the existence of the order of status quo, the order passed on the Interlocutory Application for injunction would not be of any avail. In these circumstances, it is submitted that the court below was not justified in passing the order impugned restoring the status quo as on 10.9.2009
9. The learned counsel for the respondent, on the other hand, submitted that the absence of an entry in the A diary is not quite relevant, when the application itself shows that order of status quo was passed on 10.9.2009 The order was passed by the Judge and it was noted on the application for injunction itself in her own handwriting. Even if the order is wrongly mentioned or not mentioned in the A diary, the effect of the order of injunction would not be affected. The counsel for the respondent also submitted that the counsel for the defendants did appear before the court below on 10.9.2009 and therefore, he must be posted with the knowledge of the order passed by the court on 10.9.2009 in the application for injunction.
10. I am not inclined to accept the contention put forward by the petitioners that the A diary prevails over the order of the status quo passed by the court below in application for injunction. The operative and executable order is the order passed by the judge and not what is noted in the A Diary by the Clerk in the office. It is true that the A diary should reflect the true state of affairs in respect of the proceedings in court. However, the absence of an entry in the A Diary does not lead to the conclusion that the order which was passed by the learned Munsiff vanishes.
11. The case of the petitioners/defendants is that the order of status quo was passed on 5.10.2009 The entry in A Diary on that date only indicates that I.A 2606 of 2009, an application for advancing the hearing of the suit, was allowed. There is no entry in A Diary on 5.10.2009 to show that an order of status quo was passed.
12. Rule 382 of the Civil Rules of Practice, Kerala Provides for maintaining A Diary. Rule 382 reads as follows:
“382. A Diary— In all suits, appeals, and miscellaneous proceedings, a general diary shall be maintained setting out only the judicial work done in each case. Entries such as filing of suits, appeals, petitions and issue and return of processes, etc., which are only ministerial, shall be omitted. The A diary shall be signed by the Judge himself.”
13. It is seen from the certified copy of the A Diary produced by the learned counsel for the petitioner that the A Diary was not properly maintained. The judicial work done in the case is not truly reflected in the A Diary. The argument that no order was passed by the court on a particular day was advanced only on the ground that no entry was made in the A Diary. The judicial officers should insist on properly maintaining the relevant registers including A Diary in all courts.
14. I am also not inclined to accept the contention put forward by the petitioners/defendants that they were not aware of the order of status quo passed by the court. A counsel appeared for them before the court below. Therefore, the defendants must be deemed to have knowledge of the orders passed by the court. The Commissioner inspected the properties even before 10.9.2009 and the parties very well knew the disputes between them. When a he is pending before the court, both the parties are bound to maintain the status quo in respect of the property involved in the suit. Even if no order of injunction or an order of status quo was passed, the defendants were bound to take the court into confidence and if they wanted to make any construction, they ought to have sought the permission of the court. High handed acts intended to overreach the orders passed by the court cannot be countenanced and cannot be encouraged. Technical and hyper technical arguments so as to show that the court becomes helpless also cannot be countenanced by the court. The court below considered all the relevant aspects and the status quo was directed to be restored. There is no illegality, irregularity or impropriety or jurisdictional error in the order impugned. No interference is called for under Article 227 of the Constitution of India.
15. Accordingly, the Original Petition is dismissed.
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