1. The present Civil Revision Application u/s.115 of the Code of Civil Procedure has been preferred by the applicants herein – original plaintiffs to quash and set aside the impugned order dated 04/04/2005 passed by learned Civil Judge (J.D.) and Judicial Magistrate First Class, Bhiloda below Exh.1 in C.M.A. No.7 of 2003, by which, learned Trial Court has dismissed the said application submitted by the petitioners herein, which was submitted for initiating the appropriate proceedings under the Contempt of Courts Act for breach of permanent injunction granted in Regular Civil Suit No.144 of 1985.
2. It is not in dispute that the impugned order has been passed by learned Trial Court without permitting the parties to lead the evidence and learned Trial Court has given the finding that even in criminal case also, the petitioners have failed to prove the allegation/case of tress-passing by the respondents (though admittedly the criminal case is pending before the concerned Magistrate). It cannot be disputed that in the application for breach of decree/ permanent injunction for suitable action under the Contempt of Courts Act, parties are required to be given an opportunity to lead the evidence and only thereafter the concerned Court can decide whether in fact there was/is breach of permanent injunction or not.
3. Mr.Japee, learned advocate appearing on behalf of the contesting respondents is not in a position to dispute that while dismissing the application for initiating proceedings under the Contempt of Courts Act, parties were not permitted to lead the evidence and without any evidence, the impugned order has been passed by learned Trial Court. Mr.Japee, learned advocate appearing on behalf of the contesting respondents is also not in a position to satisfy the Court how the finding given by leaned Trial Court that the petitioners have failed to prove the case before Criminal Court, can be sustained as proceedings before Criminal Court is still pending. Under the circumstances, the impugned order passed by learned Trial Court cannot be sustained and the matter is required to be remanded to the learned Trial Court to decide C.M.A No.7 of 2003 afresh in accordance with law and on merits and after permitting the respective parties to lead the evidence on the aspect in fact there was/is breach of permanent injunction granted by learned Civil Court in Regular Civil Suit No.144 of 1985 or not.
4. In view of the above and for the reasons stated hereinabove, the present application succeeds in part and the impugned order dated 04/04/2005 passed by learned Civil Judge (J.D.) and Judicial Magistrate First Class, Bhiloda below Exh.1 in C.M.A.No.7 of 2003 is hereby quashed and set aside and the matter is remanded to the learned Trial Court to decide and dispose of the said application afresh in accordance with law and on merits and after permitting the respective parties to lead the evidence on the aspect in fact there was/is breach of permanent injunction granted by learned Civil Court in Regular Civil Suit No.144 of 1985 or not. It is made clear that this Court has not expressed anything on merits in favour of either of the parties and it is for the concerned Court to decide the same afresh, in accordance with law and on merits and on the basis of evidence led. The aforesaid exercise shall be completed by learned Trial Court at the earliest but not later than six months from the date of receipt of the copy of the present order. Rule is made absolute to the aforesaid extent. No costs.
*dipti [M.R.SHAH,J]