Gujarat High Court
Maheshbhai Chaganbhai Patel vs Jarin Naushir Dalal D/O Jalambhai ... on 18 December, 2015
Author: Akil Kureshi
Bench: Akil Kureshi, Mohinder Pal
C/MCA/856/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC. CIVIL APPLICATION (FOR CONTEMPT) NO. 856 of 2015
In
APPEAL FROM ORDER NO. 335 of 2010
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MAHESHBHAI CHAGANBHAI PATEL....Applicant(s)
Versus
JARIN NAUSHIR DALAL D/O JALAMBHAI RUSTAMJI & 11....Opponent(s)
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Appearance:
MR NILESH A PANDYA, ADVOCATE for the Applicant(s) No. 1
MR BAIJU JOSHI, ADVOCATE for the Opponent(s) No. 1
MR SP MAJMUDAR, ADVOCATE for the Opponent(s) No. 5
MR ANSHIN DESAI, ADVOCATE with MR. ZALAK B PIPALIA, ADVOCATE for
the Opponent(s) No. 6 - 12
NOTICE SERVED BY DS for the Opponent(s) No. 2 - 3
RULE SERVED for the Opponent(s) No. 4
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE MOHINDER PAL
Date : 18/12/2015
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. This contempt petition is filed by the original plaintiff, who is appellant in Appeal from Order No.335 of 2010. While disposing of the said Appeal from Order, learned Single Judge in his judgment dated 10.11.2011, gave following directions:-
"6.00. In view of the above and for the reasons stated above, present Appeal From Order Page 1 of 5 HC-NIC Page 1 of 5 Created On Tue Dec 22 01:40:59 IST 2015 C/MCA/856/2015 ORDER succeeds. The impugned order dtd.8/10/2010 passed by the learned 15th Additional Civil Judge, Vadodara below application Ex.5 in Special Civil Suit No. 365 of 2008 is hereby quashed and set aside and application Ex.5 in Special Civil Suit No. 365 of 2008 is hereby allowed and the defendants, their agents, servants etc. are hereby directed to maintain status-quo and restrained from transferring, alienating and/or dealing with the suit land in any manner whatsoever during the pendency of the aforesaid suit. In the facts and circumstances of the case the learned trial court is hereby directed to expedite the hearing of the aforesaid suit. In view of the disposal of the Appeal From Order, no order in the Civil Application No.13219 of 2010 and the same is accordingly disposed of."
2. Alleging breach of such directions, the present petitioner had previously filed Contempt Petition No.1651 of 2014, which came to be disposed of by Division Bench on 22.09.2014, in which following observations and directions were issued:-
"[3.0] Shri Pandya, learned advocate appearing on behalf of the applicant has submitted though the construction on the disputed land in question has been removed, still the road on the disputed land in question has not been removed. It is submitted that road on the land in question has been constructed/shown after the order of status-quo passed by this Court in Appeal From Order No.335/2010 with Civil Application No.13219/2010.
[3.1] To the aforesaid, Shri MTM Hakim, learned advocate appearing on behalf of contesting respondent Nos.1 and 6 to 12 has stated at the Bar under the instructions from his client that road, if any, on the land in question shall be removed within a period of one week from today. Concerned respondents are directed to act as stated herein above.Page 2 of 5
HC-NIC Page 2 of 5 Created On Tue Dec 22 01:40:59 IST 2015 C/MCA/856/2015 ORDER [4.0] In view of the above stand taken by the contesting respondents more particularly respondent Nos.1 and 6 to 12 and the aforesaid direction, Shri Pandya, learned advocate appearing on behalf of the applicant does not press the present application, however has requested to reserve the liberty in case the road on the land in question is not removed within stipulated time as stated herein above. Under the circumstances and with above direction, present application is dismissed as not pressed with above liberty."
3. It can thus be seen that in the earlier round of contempt proceedings, the question of construction of residential premises and road in breach of the interim injunction granted by the High Court came up for consideration. Respondents No.6 to 12 through their Advocate stated before the Court that the road, if any, on the land in question would be removed within one week. The contempt petition came to be disposed of accordingly.
4. The grievance of the petitioner is that subsequently, though the construction of the residential unit was removed, the road has not been closed. Respondents No.6 to 12 would, however, contend that construction of the residential unit as well as road were made by the tenants occupying the land in question and was not done by them. They could succeed in removing the construction of the residential quarter, but the tenants resisted digging of the road. Despite their best efforts, the road could not be removed as stated before Page 3 of 5 HC-NIC Page 3 of 5 Created On Tue Dec 22 01:40:59 IST 2015 C/MCA/856/2015 ORDER the Court.
5. Learned Counsel for the petitioner drew our attention to a document at page No.143 produced by the concerned respondents in comparison with the document the petitioner has produced at page No.174 to contend that there have been improvements and overwriting by the said respondents. Learned Counsel for the respondent would, however, submitted that document at page No.143 is the xerox of the original certified copy supplied by the DILR, Vadodara.
6. Detailed replies and affidavits have been filed on record by both sides. We have also heard learned Counsel for the parties at considerable length. The central question to be decided in the contempt petition whether the respondents No.6 to 12 or any of them have committed willful breach of the injunction order passed by the learned Single Judge in the said Appeal from Order. The materials on record would suggest that the construction of residential unit, whosoever may have carried out, has now been removed. Affidavits by the concerned respondents and the photographs attached therewith would prima facie show an attempt to dig up the road also, which action was resisted by the occupants. Under the circumstances, it is not possible to hold that the said respondents had willfully breached the order of Page 4 of 5 HC-NIC Page 4 of 5 Created On Tue Dec 22 01:40:59 IST 2015 C/MCA/856/2015 ORDER the Court. Learned Counsel for the petitioner, however, submitted that they may be allowed to dig up the road with the help of police authorities. We are afraid, we cannot give any such power to the petitioner, that too when any such action or permission given by the Court for such action would touch the persons who are not parties before us.
7. Under the circumstances, the contempt petition is disposed of. Rule is discharged.
(AKIL KURESHI, J.) (MOHINDER PAL, J.) SHITOLE Page 5 of 5 HC-NIC Page 5 of 5 Created On Tue Dec 22 01:40:59 IST 2015