Page No.# 1/3 vs Mansur Ali Ahmed
2023 Latest Caselaw 4149 Gua

                                                                     Page No.# 1/3

GAHC010215042023




                           THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                              Case No. : I.A.(Civil)/2947/2023

           SANTOSHI AGARWALLA AND ANR
           W/O- SANJAY AGARWALLA, R/O- MANCOTTA TOM TOM TULA, P.O-
           MANKOTTA, P.S AND DIST- DIBRUGARH, ASSAM, PIN-786001

           2: SANJAY AGARWALLA
            R/O- MANCOTTA TOM TOM TULA
           P.O- MANKOTTA
            P.S AND DIST- DIBRUGARH
           ASSAM
            PIN-78600

           VERSUS

           MANSUR ALI AHMED,
           S/O- NIZAMUDDIN AHMED, R/O- NEAR TV CENTER , P.O- CR BUILDING,
           P.S- DIBRUGARH, DIST- DIBRUGARH, ASSAM, PIN-786001

Advocate for the Petitioner : MR. P J SAIKIA, SR. ADV
Advocate for the Respondent : MR SISHIR DUTTA


                                        BEFORE
         HON'BLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
                                       O R D E R

06.10.2023

Heard Mr. PJ Saikia, learned senior counsel for the applicants respondent contemnors and Mr. S Dutta, learned senior counsel for the contempt petitioner.

By the judgment and order dated 16.12.2022 in FAO 58/2022, in paragraph 18 thereof, the following order was passed requiring the parties to maintain Page No.# 2/3

status-quo over the suit property as on the date when the order was passed i.e. 16.12.2022.

"So, considering the entire facts and circumstances of this case, I find that modification of the order passed by the learned Court below is deemed necessary and hence, I find it justified to direct both the parties to maintain status quo over the suit property till disposal of the title suit. Accordingly, both the parties are hereby directed to maintain status quo over the suit property as on today and the learned Court below is directed to proceed with the case and shall dispose of the case expeditiously within 6 (six) months."

Alleging wilful violation of the order of the status-quo, contempt petition No. 215/2023 has been instituted wherein the order dated 26.04.2023 was passed directing the applicants respondent contemnors not to undertake any fresh construction over the suit land. Later on, by the order dated 28.08.2023, it was further clarified that the applicants respondent contemnors are not to carry on any business activity on the suit premises and that the same be stopped immediately.

Against the order dated 28.08.2023, this interlocutory application is instituted for recalling the same.

Mr. PJ Saikia, learned senior counsel for the applicants has raised the contention that when we read paragraph 17 of the judgment and order dated 16.12.2022, it can be discerned that the applicant is the owner of the suit premises and that there is a question of right of pre-emption by the contempt petitioner. Accordingly, it is stated that the situation when the order of status- quo was passed was that the applicants were continuing with their business activities over the suit premises.

As a factual assertion has been made that the applicants were continuing with their business activities over the suit premises as on 16.12.2022 when the Page No.# 3/3

judgment and order under violation was passed, we are of the view that a factual determination is required to be made as to whether the applicants respondents were undertaking any business activity over the suit premises as on 16.12.2022.

Mr. S Dutta, learned senior counsel for the contempt petitioner on the other hand states that as on 16.12.2022, no business activity was continued to have been done by the applicants as on 16.12.2022.

For an effective adjudication, in exercise of the powers under Order XXVI Rule-9 of the CPC, we appoint Mr. S. C Keyal, respected learned counsel of this Court to make a local investigation on the issue as to whether as on 16.12.2022, the applicants respondents contemnors were continuing with their business activity and if yes, the nature and extent of the business activity and also as to what kind of business activity is being done by the applicants as on the date of the inspection and the report be submitted before the Court.

To facilitate the process, the contempt petitioner as well as the applicants respondents shall equally bear the cost of the Commission which is quantified at Rs. 50, 000/- (rupees fifty thousand) including the expenses.

List the matter again on 16.10.2023 for the report of the commission.

Let a copy of this order be furnished to Mr. SC Keyal, learned counsel.

JUDGE

Comparing Assistant