Decided on June 11,2012

TANVIR Appellant


- (1.) Present contempt petition has been filed by the petitioner under Section 12 of the Contempt of Courts Act with following prayer: It is, therefore, most respectfully prayed that it is expedient in the interest of justice that this Hon'ble Court may graciously be pleased to summon the respondents in person and to punish them for deliberately flouting the order dated 06.02.2006 passed by this Hon'ble Court in Second Appeal No. 77 of 2005 "Ejazul Hassan @ Sultan Chishti & others vs. Tanveer & others" so that it may act as a deterrent precedent for the other erring citizens, failing which the applicant/petitioner will suffer irreparably, or may be pleased to pass such further order as this Hon'ble Court may deem fit and proper under the circumstances of the case. The facts which have given rise to this petition are that plaintiffs/respondents instituted suit No. 26 of 1984 before the court of Civil Judge (Junior Division), Roorkee, District Haridwar on 26.07.1984. Defendant/petitioner filed his written statement and contested the suit on merit. The plaintiffs/respondents also filed injunction application, which was heard by the Civil Judge (Junior Division) and an order was passed on 31.03.1993 granting interim injunction in favour of the plaintiffs/respondents. Civil Appeal No. 18 of 1998 filed by the defendant/petitioner was allowed on 07.10.2005 as a consequence, the suit of the plaintiffs/respondents was dismissed. The plaintiffs/respondents filed Second Appeal No. 77 of 2005 before this Court alongwith stay application No. 557 of 2006. On 06.02.2006, this Court passed an order staying the operation of the order dated 07.10.2005 passed by the Additional District Judge in Civil Appeal No. 18 of 1998 till further orders of the Court. This Court further directed the parties to maintain status quo as of that day.
(2.) The contention of Shri M.S. Tyagi, counsel for the petitioner is that though the Second Appeal was listed on number of occasions but same could not be argued and the respondents taking advantage of the fact, started raising construction on the land in dispute in violation of the order dated 06.02.2006. He submitted that this action of respondents is clear cut violation of order dated 06.02.2006 passed by this Court in Second Appeal No. 77 of 2005 and thus, they are liable to be punished for flouting the order of the Court.
(3.) On the other hand, Shri S.K. Jain, learned counsel for the respondents raised objection regarding maintainability of the contempt petition and submitted that in the event of breach of interim order in Second Appeal, only remedy available to the petitioner is under Order XXXIX Rule 2A of C.P.C. He prayed that contempt petition should be dismissed on this ground alone. He also submitted that Second Appeal is a continuation of suit, therefore, provision of Order XXXIX Rule 2A will apply and trial court is competent enough to tackle the contempt matter. He further submitted that even respondent Nos. 3 & 4 are not party in the suit, therefore, no contempt proceedings can be initiated against them. He contended that in the present Second Appeal an interim order/injunction order was passed by the Court on 06.02.2006 and in case there is any breach or disobedience of the order passed by this Court, for disobedience of the same, the procedure is provided under Order XXXIX Rule 2A of C.P.C. and petitioner should have availed that remedy.;

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