(Per : HONOURABLE MR.JUSTICE C.L. SONI) Draft amendment granted.
The applicant has complained of breach of an interim order of status quo dated 24.12.09 passed in Special Civil Application No.13778 of 2009 in respect of the property in question. It is stated in the application that the opponent herein has started making construction in the property though there is an order of status quo operating in Special Civil Application No.13778 of 2009.
In response to the notice issued by us, the opponent has appeared through her advocate and filed affidavit in reply stating that no new construction has been made in the property in question. However, since the property was in dilapidated condition, a compound wall was required to be erected to protect the property. To the aforesaid reply, the applicant has filed rejoinder and has pointed out that not only construction was made in defiance of the order of status quo, but a stranger is found to have been in possession of the property in question. It is stated in the rejoinder that a third party Sagar Nagjibjhai Rabari is presently in occupation of the property in question. Today, the learned advocate for the applicant has also drawn our attention to a copy of the plaint, which is a suit filed between the opponent, who was originally in possession of the property and another person who was claiming to be the tenant in the property. In the draft amendment, it is stated that pending the said suit, the opponent herein and the person claiming to be the tenant have arrived at a settlement outside the court and Sagar Nagjibhai Rabari is allowed to occupy the premises. Learned advocate for the applicant, therefore, pointed out that not only construction is carried out in the property inspite of status quo order granted by this Court, but even the possession is also handed over to third party.
Having gone through the averments made in the application as also the contents of the reply filed by the opponent and the documents annexed with the draft amendment, we are of the opinion that except the bald assertion on the part of the applicant, no other material is produced on record to point out that third party is presently in possession of the property. As far as making construction by the opponent in breach of the status quo order is concerned, we find that there is no construction of a nature totally changing the structure of the premises made by the opponent. It appears from the photographs that the building is in dilapidated condition and a wall appears to have been made to protect the property in question. The photographs, of course, show one small room containing some articles. It is difficult for this Court to come to the conclusion that what is asserted by the applicant is supported by any evidence. We are, therefore, of the opinion that if any such third party is in possession of the property, it is always open for the applicant to take other alternative remedy available to the applicant before the competent forum. So far as the complaint of breach of status quo order is concerned, we are prima facie of the opinion that there is no material on record suggesting that the opponent has committed breach of the order of status quo. We, therefore, close this contempt proceeding. However, while closing this proceeding, we take note of the fact that some construction of compound wall is made. The opponent, henceforth shall not carry out any further construction in future without the permission of the court and if in future the opponent is found making any construction in the property in question, serious view will be taken by the court. The application is disposed of accordingly. Notice is discharged.
(Akil Kureshi J.) (C.L.Soni, J.) (vjn) Top