Delhi District Court
Dharam Singh (Since Deceased) vs Dharam Singh Vs Mohinder Singh & Ors on 16 January, 2019
IN THE COURT OF SH. RAJINDER KUMAR, JSCC-CUM-
ASCJ-CUM-GUARDIAN JUDGE (WEST): DELHI
M- No. 29657/16
1. Dharam Singh (Since deceased)
Through LRs.
(1) Shri Ramesh Kumar (son)
R/o WZ-121, Naraina,
New Delhi-110028.
(2) Rajinder Singh (Son - since deceased)
Through LRs.
(a) Smt. Kamlesh Devi (Wife)
(b) Smt. Anita (Daughter)
(c) Sh. Rajiv Kumar (son)
(d) Sh. Sanjeev Kumar (son)
All residents of WZ-121, Naraina,
New Delhi-110028.
(3) Shri Mahesh Kumar (Son)
R/o WZ-225, Naraina, New Delhi-110028.
(4) Sh. Surinder Singh (Son)
(5) Sh. Narender Singh (Son)
Both R/o WZ-223, Naraina
New Delhi - 110028. .....Petitioners
Versus
Dharam Singh vs Mohinder Singh & Ors.
MNo. 29657/16 1/8
1. Shri Mahinder Singh
S/o Shri Harnand
WZ-548B, Naraina,
New Delhi - 110028.
2. Shri Braham Singh
S/o Shri Harnand
WZ-548 B, Naraina,
New Delhi - 110028.
3. Shri Vijay Pal Singh @ Babu
S/o Shri Harnand
WZ-548 B, Naraina,
New Delhi - 110028.
4. Shri Om Parkash
S/o Shri Harnand
WZ-548 B, Naraina,
New Delhi - 110028.
5. Shri Bhim Singh
S/o Shri Harnand
WZ-548 B, Naraina,
New Delhi - 110028.
6. Shri Birbal Singh
S/o Shri Harnand
WZ-548 B, Naraina,
New Delhi - 110028. ...... Respondents
Date of filing of the applications :22.04.81 & 15.12.1982
Date of reserving order :03.01.2019
Date of pronouncement :16.01.2019
Dharam Singh vs Mohinder Singh & Ors.
MNo. 29657/16 2/8
ORDER
1. Vide this order, two petitions, one dated 22.04.1981 and another dated 15.12.1982, both filed by the petitioners under Order 39 Rule 2A read with Section 151 CPC for initiating contempt proceedings against the respondents shall be disposed off.
2. The brief facts of the petition dated 22.04.1981 as per the petitioners are that the plaintiffs filed an application under Order 39 Rule 1 & 2 CPC, this court granted ad-interim injunction restraining the defendants from changing/interfering the condition of the wall in dispute to the plaintiff's property. That the said injunction order was duly served upon the defendants. That the defendants showed scant regard to the injunction order passed by the court and broke/damaged about 8' long upper portion of the wall at point A to B and raised the height of about 8' bricks. That the defendants violated and disobeyed injunction order of this court.
As per the petition dated 15.12.1982, on the application of the plaintiff under Order 39 Rule 1 and 2 CPC, court granted ad-interim injunction restraining the defendants from changing/interfering the condition of the wall in dispute to the plaintiff's property. That the site was also inspected by the Ld. L. C., whose report dated 24.03.1981 was on record. That the injunction order passed by the court was also duly Dharam Singh vs Mohinder Singh & Ors.
MNo. 29657/16 3/8confirmed on 07.05.1981 and was further upheld on 16.07.1982 in appeal by the court of Ld. Sr. Sub Judge, Delhi.
3. In the reply filed by the non-applicants/defendants, it is contended that the applications as filed were not maintainable as no case has been made out against them. That the applications were malafide and were filed just to pressurize the defendants to accede to the illegal demands of the applicants. It is also contended that the applications were without any merits and liable to be dismissed with costs.
4. On the basis of the pleadings of the parties, the issues were framed on 31.07.2017 which are as under :-
1. Whether the respondents have violated the Court's order dated 07.05.1981? OPP
2. Relief.
5. The applicants/petitioners got examined Sh. Ramesh Kumar (AW-1) (one of LR no. 1 of deceased petitioner). The applicants/petitioners also got examined Sh. Rajeev Kumar (AW-2) and Sh. Sujit Kumar (AW-3). The evidence on behalf of the applicants/petitioners was closed on 04.04.2018.
The respondents got examined the respondent no. 1 as RW-1 in support of their defence and RE was closed on 22.09.2018.
Dharam Singh vs Mohinder Singh & Ors.
MNo. 29657/16 4/8ISSUE WISE FINDING IS AS UNDER :-
ISSUE NO. 1 :-
"Whether the respondents have violated the Court's order dated 07.05.1981? OPP".
6. The onus to prove this issue was put upon the applicants/petitioners. It is the plea of the applicants/petitioner that they filed an application under Order 39 Rule 1 & 2 CPC and this court granted ad-interim injunction restraining the defendants from changing/interfering the condition of the wall in dispute to the plaintiff's property which was duly served upon the defendants. That the defendants broke/damaged about 8' long upper portion of the wall at point A to B and raised the height of about 8' bricks. That the defendants violated and disobeyed injunction order of this court.
As per the contents of petition dated 15.12.1982, Court granted ad-interim injunction restraining the defendants from changing/interfering the condition of the wall in dispute to the plaintiff's property. That the injunction order passed by the court was also duly confirmed on 07.05.1981 and was further up held on 16.07.1982 and appeal by the court of Ld. Sr. Sub Judge, Delhi.
7. It is the contention of the non-applicants/ respondents, that the applications were not maintainable as no case has been made out against them. It is further pleaded Dharam Singh vs Mohinder Singh & Ors.
MNo. 29657/16 5/8that the application was malafide and was filed just to pressurize the defendants to accede to the illegal demands of the applicants.
8. In the evidence affidavit of Sh. Ramesh Kumar (AW-
1), the facts of the petition are reproduced but while under cross-examination, it was deposed by him that he had been coming in the present case since beginning. At page no. 2, it was also deposed that the main suit was dismissed on 27.04.2015. It was further deposed that the respondent continued to disobey the order of the Court for 4-5 days. It was also deposed by him that he took the photographs at/during continuation of violation. However, it was again said by him that he did not take any photographs. It was also deposed by him that he do not possess the negatives of the photographs (Ex. AW1/7) (colly.).
9. Sh. Rajiv Kumar (AW-2) also during his examination in chief supported the contents of the petition but during his cross-examination, it was deposed by him that his date of birth was 21.04.1983 and he started coming to attend the cases only for the last 4-5 months. It was also deposed that the photographs were not taken in his presence. It was admitted to be correct by him that the incident did not take place in his presence and also that he was not aware about the date of order/orders of the Court under consideration.
Dharam Singh vs Mohinder Singh & Ors.
MNo. 29657/16 6/810. It is pertinent to mention here that as per the contents of the petition itself, the defendants have violated the order dated 07.05.1981. It is pertinent to mention here that in the petition dated 22.04.1981, there is no mentioning of any date on which any of the respondents have violated/disobeyed the order of the Court. Similarly, the application dated 15.12.1982 is also silent as to when was the order of the Court was violated and further, as to who had violated/disobeyed the order of the Court. However, in para no. 7 and 8, it is stated by Sh. Ramesh Kumar (AW-1) that order dated 07.05.1981 was disobeyed but it is nowhere stated in the evidence affidavit by any of the AW's as to when was the order of the Court was violated or further, as to who had violated the order of the Court.
11. The applicants/plaintiffs were supposed to plead specifically and further to prove that a specific order was violated. That applicants/plaintiffs were also supposed to depose specifically as to who had violated/disobeyed the order of the Court. There is nothing on record to suggest that either of the orders in question was violated/disobeyed by any of the respondents.
In Thresia & Anr. Vs Johny & Ors., AIR 2003 Kerala 97, it was held by Hon'ble High Court of Kerala that on violation of order of status quo, a person cannot be punished on mere surmises unless there is clear evidence.
Dharam Singh vs Mohinder Singh & Ors.
MNo. 29657/16 7/812. In the case in hand, there is no clear evidence as to which one of the respondents/contemnors violated which one of the order passed by the Court. Moreover, as per Sh. Ramesh Kumar (AW-1), who is one of the LR of one of the applicants/petitioners in this case, he did not tell any date when the contempt was committed. Accordingly, the issue is decided against the applicants/petitioners and in favour of the contemnors/respondents.
Relief :-
13. In view of the above said discussion on the issue no. 1, the petition is hereby dismissed.
Announced in the open Court today the 16th January, 2019 RAJINDER KUMAR Digitally signed by RAJINDER KUMAR Date: 2019.01.18 15:44:02 +0530 Dharam Singh vs Mohinder Singh & Ors.
MNo. 29657/16 8/8