[1] By this petition, the petitioners have challenged the order dated 27.08.2012 passed by the learned Additional District Judge, Veraval below Exh.45 in Misc. Civil Appeal No.4 of 2006.
[2] Petitioners herein are original plaintiffs. Petitioners herein had filed suit being Regular Civil Suit No.626 of 2004 before the learned Civil Judge, Veraval for declaration and for obtaining permanent injunction qua suit property. Along with the suit, the petitioners had also preferred injunction application and on the said application, the Court had passed injunction in favour of the petitioners herein. Though injunction is granted in favour of the petitioners herein – original plaintiffs, it is alleged that respondent herein – original defendant made obstruction in the right of way and so present petitioners preferred application under Order 39, Rule 2(A) along with section 151 of Civil Procedure Code and prayed to impose punishment and also prayed for granting mandatory injunction to remove obstruction made in the right of way. Learned Civil Judge after giving opportunity of hearing to both the parties, by order dated 29.12.2005 imposed punishment and directed that the respondent herein be send to civil prison for 30 days. Said order dated 29.12.2005 is challenged by way of filing appeal being Misc. Civil Appeal No.4 of 2006 and the learned Appellate Court after hearing both the parties and considering material on record, by order dated 27.08.2012 partly allowed the appeal and quashed and set aside the order of imposing civil prison for 30 days, but dismissed the appeal qua mandatory injunction granted in favour of the petitioners. It is held by the learned Appellate Court that at the time of deciding the suit, Civil Court will pass necessary orders for breach of order under Order 39 Rule 2(A). Order dated 27.08.2012 is challenged by way of filing this petition.
[3] Heard Mr.Prachhak, learned advocate for the petitioners herein – original plaintiffs. Mr.Prachhak, took this Court to provisions of Order 39 Rule 2(A) of Code of Civil Procedure and submitted that from the evidence on record, more particularly, evidence of panchakayas, prima facie it seems that obstruction is put in the way and therefore, there is breach of Order 39 Rule 2(A) of CPC committed by the respondent and so learned Trial Court has passed the order. Thereafter, learned Appellate Court has committed error in modifying the order passed by the learned Trial Court. Reliance is placed on the judgment in case of C.Elumalia v/s. AGL Irudayaraj reported in 2009(0) GLHELSC 43186.
[4] This Court has gone through the order passed by the learned Appellate Court. Initially, for proceeding to impose sentence for breach of order passed by the learned Trial Court, more particularly, injunction application, it is required to record evidence and if the Court is satisfied that concerned person has obstructed with ulterior motive and disobeyed the order passed by the learned Trial Court, than the Court can impose civil prison. So far as reliance placed in the case of C. Elumalia (supra) by the learned advocate for the petitioner is concerned, it seems that after following required procedure, the Court was satisfied that for various occasion, there was breach of condition of injunction and so Hon’ble Apex Court confirmed the order of imposing sentence of civil prison. This Court is in agreement with the ratio laid down by the Hon’ble Apex Court. So far as present case is concerned, the issue is still pending and in opinion of this Court, after giving opportunity of leading evidence, the Court can decide this issue. Therefore, no error is committed by the learned Appellate Court. The petition is therefore, dismissed.
(M.D.SHAH, J.) satish