Rajiv Maheshkumar Mehta vs Pratapbhai Ganpatbhai Jagariya
2021 Latest Caselaw 17893 Guj

     C/AO/17/2021                               ORDER DATED: 30/11/2021




       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/APPEAL FROM ORDER NO. 17 of 2021
                             With
         CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
            In R/APPEAL FROM ORDER NO. 17 of 2021
=====================================================
                  RAJIV MAHESHKUMAR MEHTA
                            Versus
               PRATAPBHAI GANPATBHAI JAGARIYA
=====================================================
Appearance:
VIRAL K SHAH(5210) for the Appellant(s) No. 1
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1,2,3
=====================================================

 CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                          Date : 30/11/2021

                              ORAL ORDER

1. Heard Mr. Viral K. Shah, the learned counsel appearing for the appellant. Though served, respondents have chosen not to appear either in person or through an advocate before this Court.

2. On 12.02,2021, the coordinate Bench of this Court passed the following order:

"Heard, learned advocate Mr. Viral Shah for the appellant through video conference. He submitted that the appellant has challenged an order dated 27.01.2021, passed by the learned Chamber Judge, Court No. 31, City Civil Court, Ahmedabad below applications, exh. 35, preferred under O.39 R.2(a) of the Civil Procedure Code, 1908 (CPC) and exh. 51 preferred under O.7 R.11(d) of the CPC, in Civil Suit (CCC) No. 2073 of 2018. It is submitted that

C/AO/17/2021 ORDER DATED: 30/11/2021

application exh. 35, preferred under O.39 R.2(a) of the (CPC) was rejected with, subject to framing of a separate issue at the time of final adjudication.

The issue requires consideration. Hence, issue notice, making it returnable on 7 th May 2021. Direct service is permitted through fax / e-mail / any other electronic mode.

Mr. Shah, learned advocate for the appellant further submits that identical matter between the same parties is pending before this Court and accordingly, he requests that the same may be tagged with this matter, for which, he is permitted to file necessary note before the registry."

3. It is submitted by Mr. Viral K. Shah, the learned counsel appearing for the appellant that there is a clear disobedience of the order of injunction passed by the Court below dated 23.01.2019 passed below Exh.6/7, whereby, the parties were directed to maintain the status-quo regarding the suit property, more particularly, with regard to title and possession of the suit plots / properties, till final disposal of the suit. It is submitted by Mr. Shah that the Court Commissioner's report below Exh.38 clearly states that the defendants / respondents have removed the fencing at the western side of the suit property and constructed a new compound wall. It is further submitted by Mr. Shah that the respondents - defendants have willfully disobeyed the order dated 23.01.2019 passed by the Court below in Exh.6/7.

4. The Court Commissioner's report below Exh.10 and 28 as well as the Court Commissioner's report below Exh.38 do not match. The trial Court failed to appreciate the primary object of the Order-39, Rule-2(a) of the Code of Civil Procedure, 1908.

C/AO/17/2021 ORDER DATED: 30/11/2021

5. Though, this Court issued Notice making it returnable on 07.05.2021, the matter thereafter has been adjourned from time to time. The respondents, however, have not appeared, and therefore, this Court is constrained to proceed with the hearing. Under such circumstances, a strict view is required to be taken with regard to the subject matter.

6. The appellant herein filed the application below Exh.35 seeking following reliefs:

"(a) Kindly hold that the defendants broke the fencing of wire and made compound wall on the west side of the property in question and thereby, they have committed contempt of the order of the learned court to maintain status quo regarding possession and title and they have committed such contempt intentionally and pass the order to send each defendant in the civil custody for three months and attach their properties.

(b) Kindly pass the order directing the defendant to remove compound wall made by breaking the fencing of wire on the western side of the property in question and restore the original position of the fencing of wire. Kindly pass the order to maintain status quo.

(c) Kindly pass the order to provide police assistance at the cost of plaintiff to restrain defendants from making any construction or change against the order and for the implementation of the said order to maintain status quo regarding the possession and title to the property in question passed by the learned Court below Exhibit-6 and 7. (It is the judgment of the Hon'ble High Court of Gujarat in the case of Jagadishbhai Madhubhai Patel V/s.

C/AO/17/2021 ORDER DATED: 30/11/2021

Saraswati Asharam and others reported on 2020(1) - GLR - 304, wherein it was held that order for police assistance can be passed preventing the contempt of order of the Ld. Civil Court).

(d) Kindly grant the cost of this application and any other relief that may deem fit and proper to the learned court."

7. The Court below passed the order on 27.01.2021 below Exh.35 and 51. The operative part of the order reads thus:

"➢ The plaintiff's application Exh.35 under Order 39 Rule 2(a) is, hereby, rejected with subject to framing of a separate issue at the time of final adjudication of the present suit.

➢ The defendant's application Exh.51 under Order 7 Rule 11(d) is also, hereby, rejected.

➢ Both the applications accordingly stand disposed off, with no order as to cost."

8. In view of this Court, the Court below is required to adjudicate the application filed below Exh.35 by the appellant herein, as expeditiously as possible, without waiting for framing of a separate issue, at the time of final adjudication of the suit. Further, an application below Order 39 Rule 2 (a) of the Code of Civil Procedure, wherein the subject matter is breach of the order passed by the Court below, has to be decided on the basis of evidence and the same should be taken-up by the Court, as expeditiously as possible. The object of Order-39 Rule-2(a) of the Code of Civil Procedure, 1908 is to estoppe the wrongdoers and

C/AO/17/2021 ORDER DATED: 30/11/2021

ensure that there is no violation of the orders passed by the Court from time to time. The ratio has been laid down by the Hon'ble Apex Court in the case of Patel Rajnikant Dhulabhai and others v. Patel Chandrakant Dhulabhai and others reported in AIR 2008 SC 3016, wherein, in para-58 and 59, the Hon'ble Apex Court has held thus:

"58. Speaking for the Court, Jeevan Reddy, J. stated;

Can it be said that orders passed by the Civil Court and the High Court during this period of six years were all non est and that it is open to the defendants to flout them merrily, without fear of any consequence. The question is whether the said decision of the High Court means that no person can be punished for flouting or disobeying the interim/ interlocutory orders while they were in force, i.e., for violations and disobedience committed prior to the decision of the High Court on the question of jurisdiction. Holding that by virtue of the said decision of the High Court (on the question of jurisdiction), no one can be punished thereafter for disobedience or violation of the interim orders committed prior to the said decision of the High Court, would indeed be subversive of the Rule of Law and would seriously erode the dignity and the authority of the courts. (emphasis supplied)

59. From the above decisions, it is clear that punishing a person for contempt of Court is indeed a drastic step and normally such action should not be taken. At the same time, however, it is not only the power but the duty of the Court to uphold 13-12-2021 (Page 13 of 15) www.manupatra.com Mr. J V Bhukan and maintain the dignity of Courts and majesty of law which may call for such extreme step. If for proper administration of justice and to ensure

C/AO/17/2021 ORDER DATED: 30/11/2021

due compliance with the orders passed by a Court, it is required to take strict view under the Act, it should not hesitate in wielding the potent weapon of contempt."

9. Under such circumstances, the order passed below Exh.35 passed by the Chamber Judge, Court No. 31, City Civil Court, Ahmedabad dated 27.01.2021 is quashed and set aside and the trial Court is directed to decide the same afresh as expeditiously as possible, preferably within a period of 60 days from the date of receipt of the order.

10. In view of the above, the present Appeal from Order stands disposed of. The connected Civil Application/s, pending, if any, also stand/s disposed of. Notice is discharged.

(VAIBHAVI D. NANAVATI,J) Pradhyuman