Judgment : G. S. N. Tripathi, J. 1. Sri Ramphal, the petitioner filed the writ petition No. 28293 of 1993 in this Court with a prayer that a writ in the nature of certiorari may be issued quashing the orders dated 3-8-93 and 25-3-89 (Annexures 6 and 7) and a mandamus be issued commanding the respondents not to give effect to the impugned orders and the respondents be directed not to demolish the wall/accommodation of the petitioner bearing Municipal No. 164, Civil Lines, Bareilly. 2. THE petitioner has alleged that he is a tenant of the accommodation owned by Sri Sewa Ram bearing Municipal No. 164, Civil Lines, Bareilly for a long time. THE accommodation is a very old one. There is a registered agreement to sell executed by Sri Sewa Ram and his son Sri Satya Prakash, the owners of the property in dispute to the petitioner. Respondent No. 4, Sri Anil Bhardwaj (alleged contemner) has his hotel just to the east of the petitioner's accommodation. The contemner also claims that an agreement of sale in his favour exists. THE agreement deed was executed by Sri Satya Prakash, s/o Sri Sewa Ram. THE contemner made several efforts to dislodge the petitioner from his accommodation because his hotel is just behind the accommodation to the east of he petitioner's accommodation and the contemner is likely to be benefitted from the removal of front wall if the respondent No. 4 gets success to get the petitioner evicted from the tenanted accommodation. In order to achieve his aim, he brought respondents 1 to 3 in his favour and collusively got an order for demolition of this accommodation in dispute passed against the contemner, of which the petitioner had no notice. THE contemner did not contest that notice and an order was passed by respondent No. 3 to demolish the wall of the petitioner. On coming to know about this collusive proceedings between the contemner and respondents 1 to 3, the petitioner filed a civil suit No. 269/90 in the court of Civil Judge, Bareilly for a specific performance of contract existing in his favour. A stay order passed by the learned Civil Judge is still operative. THE petitioner filed an appeal before the Commissioner (respondent No. 2), which was dismissed as the petitioner was not a party to the original proceedings. A stay order passed by the learned Civil Judge is still operative. THE petitioner filed an appeal before the Commissioner (respondent No. 2), which was dismissed as the petitioner was not a party to the original proceedings. Thereafter, the petitioner moved this court in the aforesaid writ for the aforesaid prayers. The contemner Sri Anil Bhardwaj filed his counter affidavit in the main petition on 23-7-95, wherein he has stated that the Original Suit No. 65 of 1992 filed by the petitioner in the court of Civil Judge, Bareilly, is pending. An application under Order XXXIX, Rules 1 and 2 C. P. C. against the respondents is still pending. Again Suit No. 65 of 1992 is still pending. Earlier suit No. 369 of 1990 was filed by the petitioner. In that suit, an application under Order XXXIX, Rule 2, C. P. C. is pending disposal. All these petitions and suits cannot run together. Further he has alleged that Sri Sewa Ram has no right to execute a sale-deed in respect or the disputed property in favour of the contemner as he was not the owner. Smt. Elaichi Devi was the real owner. In fact, the petitioner also wanted to purchase this property. But he could not succeed because the property was sold to Sri Sewa Ram by the true owner Smt. Elaichi Devi. The agreement deed in favour of the contemner was cancelled on 12-1-90. The contemner is not interested in demolition of the property in dispute. A copy of the writ petition, without any order of the court, was received by the contemner on 9-5-95. Then only he came to know about the interim order passed by this Court on 23-8-93, which is as follows: "till 30-10-93, parties arc directed to maintain status quo. " Before that the walls in dispute had already been demolished by the respondents 1, 2 and 3. 3. IT is said that after getting the knowledge of the writ petition and the order dated 23-8-93, the contemner Sri Anil Bhardwaj, demolished the walls in dispute. Hence Contempt Petition No. 573 of 1993 was moved by the petitioner on 4-4-95. In that petition, the court ordered on 5-4-95 as follows: "in the meantime, respondent is directed to make all endeavours to see that the orders of the court are complied with. Hence Contempt Petition No. 573 of 1993 was moved by the petitioner on 4-4-95. In that petition, the court ordered on 5-4-95 as follows: "in the meantime, respondent is directed to make all endeavours to see that the orders of the court are complied with. " Meaning thereby, that the order to maintain status quo should be allowed to operate. The petitioner further prayed that the respondent be directed not to raise any construction over the land in dispute, which is now an open space. In support of his allegations in the contempt petition, the petitioner admits in paragraph 8 that the contemner got success to get the agreement deed from Sri Sewa Ram in his favour. The fact that contemner had no knowledge of the order dated 23-8-93 for nearly two years is not correct. But he admits that suit No. 269 of 1990 has been filed by him for a specific performance of the contract and the contemner is respondent No. 4 in that suit and the stay order passed by the civil court, is still in operation against the contemner. The contemner demolished the wall on 10-12-94 in defiance of the court's order. Therefore, this petition for contempt was moved on 4-4-95. 4. IN the counter affidavit filed by the contemner Sri Anil Kumar Bhardwaj, dated 25-5-95, the allegations made by the petitioner, had been denied and it has been claimed that only when the contempt petition was served upon him on 9-5-95, he learned about the main petition as well as this contempt petition. Before that, he had no knowledge. Therefore, the question of violating this Court's order does not arise. The petitioner has simultaneously instituted the proceedings under Order 39, Rule 2a C. P. C. in the Court of IInd Addl. Civil Judge, which is pending. The Misc. application was instituted on 20-3-95. In fact, the petitioner has been harassing the contemner by filing multiple litigations against him. The property is owned by Sri Suresh Pal Singh by virtue of the sale deed dated 21-4-90. The petitioner filed a suit against Sri Suresh Pal Singh. But later on, he handed over possession to Sri Suresh Pal Singh on 8-12-94 and executed a deed in his favour. He also moved an application in suit No. 269 of 90 fat-withdrawal of the suit as no interest was left with him in this property. The petitioner filed a suit against Sri Suresh Pal Singh. But later on, he handed over possession to Sri Suresh Pal Singh on 8-12-94 and executed a deed in his favour. He also moved an application in suit No. 269 of 90 fat-withdrawal of the suit as no interest was left with him in this property. Smt. Elaichi Devi had executed a sale deed dated 21-4-90 in favour of Sri Suresh Pal. Suit No. 65 of 1992, filed by the petitioner is still pending. The deponent has not demolished the property and committed no contempt. In fact, it was demolished by the Bareilly Development Authority as the construction had been illegally raised by the contemner. As a law abiding citizen, he complied with the direction of the Bareilly Development Authority. It is unexplained as to why the petitioner did not move any authority immediately on or after 8-12-94, when the property was said to have been demolished. He did not lodge any F. I. R. on 1-3-95, he applied for dismissal of the suit, as he wanted to withdraw it. In fact, on 10-12-94, the petitioner was outside Bareilly. Thus the question of contempt does not arise. 5. NOW Affidavits v. Affidavits are the only evidences on the record. It has to be seen in these circumstances as to whether the petitioner has succeeded in proving his case that the contemner, despite knowledge of this Court's order, has violated it. 6. FROM a narration of allegations made by the parties, it is clear that good number of questions of fact in the two pending suits are yet to be decided by the proper courts. In those suits also almost the same questions of fact are involved, as to whether the petitioner is the owner of the property or the contemner, whether Smt. Elaichi Devi was the true owner or her son Sri Satya Prakash and her husband Sri Sewa Ram (deceased ). It is alleged that the father-in-law of Smt. Elaichi Devi was the owner of the property. He executed a will in favour of Smt. Elaichi Devi, his daughter-in-law because her husband was addicted to many bad habits. Whereas, the allegations from the side of the petitioner is that in fact, Smt. Elaichi Devi was not the owner but her sons and husband were the owners. The alleged Will in favour of Smt. Elaichi Devi is not valid. Whereas, the allegations from the side of the petitioner is that in fact, Smt. Elaichi Devi was not the owner but her sons and husband were the owners. The alleged Will in favour of Smt. Elaichi Devi is not valid. Again the question whether the petitioner has acquired any interest in the property in suit or not. In the same way, whether the contemner has any interest in the property or not. There are deeds in favour or both the parties as well as in favour of Smt. Uma Bhardwaj, the wife of the contemner. As yet the civil court has not been able to give any verdict in favour of any party. While sitting in contempt jurisdiction or even in writ jurisdiction, it is not possible for this court to conclude as to which one of the parties was the owner and in possession. Similarly, it cannot be definitely said that the construction in dispute was demolished on 8-12-94 by the contemner. Rather, it appears that others including the Bareilly Development Authority had taken exception to the construction in dispute and passed an order for demolition. The petitioner went in appeal before the Commissioner's court. His appeal was dismissed. Then he filed the writ petition referred to above. Meanwhile he had filed two suits also in respect of the same property in the court of learned Civil Judge/addl. Civil Judge, Bareilly. Those suits are pending. Two applications under Order 39, Rule 2 C. P. C. for taking suitable action according to law against the respondent-contemner for the alleged demolitions are pending in both the suits. They are yet to be decided. The contemner is all along constantly saying that he is not responsible for the demolition. The evidence on the record, is not sufficient at this stage to give a conclusive finding that the demolition has been done by the contemner. Alleging all these facts in his counter affidavit filed in the main petition, the contemner has moved an application dated 23-7-95, praying that the order dated 23-8-93 be recalled. In his counter affidavit, he has denied that he has demolished the constructions. He has taken other pleas that civil litigations are going on. An application under Order 39, Rule 2 C. P. C. is also pending and no conclusive finding has been recorded by the civil court as yet. In his counter affidavit, he has denied that he has demolished the constructions. He has taken other pleas that civil litigations are going on. An application under Order 39, Rule 2 C. P. C. is also pending and no conclusive finding has been recorded by the civil court as yet. Under these circumstances, I find that unless the application for recall moved by the respondent is decided against him, this court should not proceed on the contempt side against the respondent contemner. The Hon'ble Supreme Court in the case of State of Jammu and Kashmir, v. Mohd. Yakub and others 1992 (2) UPLBEC 1166 has observed as follows: "we do not agree. The scope of a contempt proceeding is very different from that of the pending main case yet to be heard and disposed of (in future ). Besides, the respondents in a pending case are at a disadvantage if they are called upon to meet the merits of the claim in a contempt proceeding at the risk of being punished. It is, therefore, not right to suggest that it should be assumed that the initial order of stay got confirmed by the subsequent orders passed in the contempt matter. We, therefore, hold that the High Court should have first taken up the stay matter without any threat to the respondents in the writ case of being punished for contempt. Only after disposing it of, the other case should have been taken up. It is further significant to note that the respondents before the High Court were raising a serious objection disputing the claim of the writ petitioners. Therefore, an order in the nature of mandatory direction could not have been justified unless the Court was in a position to consider the objections and record a finding, prima facie in nature, in favour of the writ petitioner. Besides challenging the claim on merits, the respondent is entitled to raise a plea of non-maintainability of a writ application filed for the purpose of executing a decree. It appears that at an earlier stage the decree in question was totally put in execution when the parties are said to have entered into a compromise. According to the case of the State, the entire liability under the decree (treated with the compromise) has already been discharged. The dispute, therefore, will be covered by Section 47 of the Code of Civil Procedure. According to the case of the State, the entire liability under the decree (treated with the compromise) has already been discharged. The dispute, therefore, will be covered by Section 47 of the Code of Civil Procedure. It will be a serious question to consider whether in these circumstances the writ petitioners was entitled to maintain his application under Article 226 of the Constitution at all, we do not want to decide any of these controversies between the parties at this stage, except holding that the orders passed in the contempt proceedings were not justified, being premature, and must, therefore, be entirely ignored. The High Court should first take up the stay matter in the writ case, and dispose it of by an appropriate order. Only thereafter, it shall proceed to consider whether the State and its authorities could be accused of being guilty of having committed contempt of Court. " 7. THE views expressed by the Hon'ble Supreme Court are very meaningful as well as reasonable. Unless the application for withdrawal of the impugned order is decided by the court, it is not proper to punish the contemner rather, the court should wait for the decision in the main petition. Therefore, I wish to pay due regard to the observations made by the Hon'ble Supreme Court above and think it may be proper to order that this petitioner shall remain pending till the disposal of the main petition No. 28293 of 1993 filed by the petitioner. It shall be revived only after the said writ petition has been decided in favour of the petitioner and it has been held that the respondent contemner has committed an offence alleged against him. But it shall not be practical as the decision of the main writ shall take time. Hence I wish to dismiss the contempt petition. A fresh petition for contempt may be filed again if need be. 8. APART from the aforesaid observations of the Hon'ble Supreme Court, I find that the civil courts have wider jurisdiction under Order XXXIX, Rule 2a, C. P. C. that what this Court possesses under the Contempt of Court Act. The civil court is in a better position to record the evidence of witnesses and note the indemeanour. Civil Court can inspect the spot itself or get it inspected by some Commissioner. The civil court is in a better position to record the evidence of witnesses and note the indemeanour. Civil Court can inspect the spot itself or get it inspected by some Commissioner. After taking the entire evidence on the record, the Civil Court may come to the conclusion that the petitioner is not at all the owner of the property, rather, the contemnor is the owner or somebody else is the owner, other than the petitioner. The Civil Court can also come to the conclusion that it is not the petitioner but the contemnor and other persons, who are not party to the suit, are the owners of the property. Similarly the civil court is in a better position to come to a conclusion, on the basis of evidence on the record, that actually no wilful disobedience of the court's order, has been made by the contemner. The Civil Court may dismiss the suit with costs, including exemplary costs, for putting up a case based on totally false grounds. Under these circumstances, it will be better to wait for the decision of the civil court on all the relevant facts. This is another reason why I think that this Court should not proceed in contempt jurisdiction for punishing the alleged contemner right now. Apart from it, I think that supposing that this court comes to a conclusion that the contemner has not committed any offence, doors of the civil court in both the suits, shall be slammed for ever, because no civil court, which is directly subordinate to the High Court, can dare to pass an order on facts or law in contravention of this Court's decision. A very grave injustice is likely to occasion if this court records a finding on facts on the basis of cryptic evidence available in the shape of affidavits, filed by the petitioner. Every paragraph and every allegation made by the petitioner, have been controverted and denied by the respondents contemner on oath. Therefore, I think that it is proper for this court to wait for the decision of the civil courts in suits pending before them before proceeding in this contempt jurisdiction. 9. EVEN otherwise, I find that the contempt petition, prima facie, does not appear ligent arguments can never substitute evidence. Therefore, I think that it is proper for this court to wait for the decision of the civil courts in suits pending before them before proceeding in this contempt jurisdiction. 9. EVEN otherwise, I find that the contempt petition, prima facie, does not appear ligent arguments can never substitute evidence. This court, being a court of record, cannot go without evidence on the record, under these circumstances, I find that the possibility of Sri Anil Bhardwaj demolishing the construction, if at all, in obedience to the order of the Bareilly Development Authority without the knowledge of restraint order of this Court, dated 23-8-93, cannot be ruled out although I do not wish to record any categorical finding on this point. I am simply pointing out multiple holes in the net 01 the petitioner's case, through which mosquitoes, like Sri Anil Bhardwaj, could escape. 18. It is said that the documents executed in favour of the petitioner, Suresh Pal Singh etc. were all collusive. Smt. Elaichi Devi was not the owner. In fact, her husband and son Sri Satya Prakash were the owners. These are the questions of fact waiting decision at the hands of the civil court. Therefore, it is not proper for this Court to hold that all the documents in favour of the contemner or his alleged collaterals are fictitious documents. Smt. Elaichi Devi's registered sale deed in favour of Sri Suresh Pal Singh (Annexure C. A. 2) discloses that the property had been given to Smt. Elaichi Devi by her father-in- law through a sale-deed dated 26-1-65 and hereby, she became the owner. Thus the property did not belong to her husband. Hence it could never devolve upon him son Sri Satya Prakash. EVEN this old sale- deed of 26-1-65 has been branded by the petitioner as a fictitious document. Is it possible for this Court to give a finding even without a shred of legal evidence on the record? Can it be said that this registered document, whereby a consideration of Rs. 60,000 passed in cash is fictitious, simply because the learned counsel so argues? Under these circumstances, I find that it is hazardous for this Court to say at this stage that these documents are fictitious documents. 19. Can it be said that this registered document, whereby a consideration of Rs. 60,000 passed in cash is fictitious, simply because the learned counsel so argues? Under these circumstances, I find that it is hazardous for this Court to say at this stage that these documents are fictitious documents. 19. In paragraph 6 of C. A. 3, filed by the petitioner before the learned Civil Judge, it is alleged that the petitioner was kidnapped on 8-1-94 forcibly and the construction was demolished on 10-12-94. It does not appear to be logical to say that whereas the petitioner was kidnapped-on 8-1-94, the contemner waited till 10-12-94 to demolish the construction, specially when for nearly 5 months, the petitioner kept this fact concealed in his bosom and had not brought this fact to the notice of the court also. Thus after waiting for nearly one year, the contemner demolished the construction on 10-12-94. The contemner could have done it very well on or around 8-12-94 and could not have waited till 10-12-94 when the multiple allegations and counter allegations had seen the light of the day. 20. The petitioner executed a document disclaiming any interest in the disputed property on 8-12-94 (C. A. 5 ). He has admitted that the sale deed in his favour was not a valid document. He applied before the learned Civil Judge for dismissal of his suit on 1-3-95 (C. A. 7 ). He gave an affidavit that he does not want to proceed with the suit, on 28-4-95 the learned counsel argued that on these documents, when they were blank, the petitioner's signatures and thumb-impressions had been obtained by the contemner. All these allegations have been denied by the contemner on oath. Can it be held by this Court, at this stage, that these documents were obtained when the petitioner was in the custody of the contemner, specially when he kept this secret inside his heart for nearly 5 months. After such a long time, the petitioner said that his signatures were obtained on blank papers, under duress and coercion. I do not want to say categorically that these allegations are totally wrong, for want of proper evidence. But I am simply pointing out that it will not be proper for this Court to draw a conclusion like this at this stage, specially when these allegations are waiting an adjudication in the Civil Court. 21. I do not want to say categorically that these allegations are totally wrong, for want of proper evidence. But I am simply pointing out that it will not be proper for this Court to draw a conclusion like this at this stage, specially when these allegations are waiting an adjudication in the Civil Court. 21. In his affidavit dated 6-9-95, filed in the contempt petition, the petitioner has alleged that Smt. Elaichi Devi has no concern with the property, therefore any sale deed executed by her in favour of Sri Suresh Pal Singh, is not correct. I am not going to express any opinion on this point. In paragraph 12, it has been alleged that Sri Suresh pal Singh is a poor man and he could not be in a position to prove this fact that he has paid a sum of Rs. 60,000 after withdrawing the same from any Bank. The amount was paid by the contemner himself. What is the evidence on the record to prove that Sri Suresh Pal Singh is a poor man? Similarly, what is the evidence to prove that he has withdrawn the amount from Bank or he had any Bank account, specifically in the teeth of the fact that the registered deed was executed in his favour? There is an admission of Smt. Elaichi Devi that she has received the money. She has not filed any counter affidavit that she did not receive the money and the fraud was played upon her by the petitioner or the contemner had obtained this property Benami in the name of Sri Suresh Pal Singh. That is why I find that the arguments may be sonorous and sweet to the ears but they are bitter to the mind. The court of record should not work on the sentiments. It should record a finding of fact, categorically based on legal evidence and legal circumstances, existing on the record. In absence of such pre- requisites, I do not think it proper to agree with the learned counsel for me petitioner that these allegations referred to above, should be taken as a gospel truth simply because the petitioner has so stated on oath. But the learned counsel lacks sanctity when he does not reply as to why similar allegations on oath made by the contemner be not given the same value. But the learned counsel lacks sanctity when he does not reply as to why similar allegations on oath made by the contemner be not given the same value. As observed earlier, all the allegations-have been countered by the contemner. 22. In paragraph 16 of the counter affidavit referred to above, dated 6-9-95, the petitioner says that no agreement was executed by the petitioner in favour of Sri Suresh Pal Singh and possession was never delivered by him to Sri Suresh Pal Singh. The alleged agreement deed dated 8-4-94, is a forged and fabricated document. In the teeth of denial on oath, at this stage, it cannot be said that the petitioner did not execute a document in favour of Sri Suresh Pal Singh and he did not hand over possession to him at the same time or the agreement deed dated 8-12-94 is a forged and fabricated document. 23. Some photographs, in the shape of Annexures (C. A.-7 to C. A.-8) have been filed to show that demolition reconstruction works were supervised by the contemner because some open bricks and man with a spade have been shown in Exhibit 7. The allegations have been made by the petitioner in paragraph 20 in the aforesaid affidavit that ultimately the contemner succeeded in ejectment from and demolition of the property in dispute. After demolition of the construction, the contemner has started reconstruction on the spot under his direct supervision. The said constructions were made on 31-5-95. I do not think that these photographs speak so much and very loudly. Firstly, they cannot be connected with the date of 31-5-95. It cannot be said that they relate to the disputed property or the mason had been engaged by the contemner. Therefore, I find that these photographs do not prove the guilt of the contemner beyond doubt at this stage. 24. The contemner says that he has no direct juril relationship with the disputed property. But in order to counter blast this allegation, a document, Annexure 5, the agreement to sell, executed by Sri Suresh Pal Singh in favour of Sri Anil Bhardwaj, has been relied upon, in which Sri Suresh Pal Singh alleges to be the owner of this property, which he had obtained from Smt. Elaichi Devi by way of a sale-deed dated 20-9-90 for Rs. 70,000. He agreed to transfer this property to Sri Anil Bhardwaj. 70,000. He agreed to transfer this property to Sri Anil Bhardwaj. Therefore, the petitioner wants to connect the alleged misdeeds of Sri Bhardwaj with this deed of agreement by alleging that he had obtained a collusive agreement from Sri Suresh Pal Singh, who is also a gang leader of Mafias, operating at Bareilly. Smt. Elaichi Devi appears to be a big landlady. Therefore, if she chose to transfer some part of her property to Sri Suresh Pal Singh and the latter agreed to retransfer it to the contemner, it cannot be said that they are colluding with each other. After all, Smt. Elaichi Devi was not going to gain anything by colluding with the contemner or Sri Suresh Pal Singh. Hence no adverse inference can be drawn on the basis of this document. On 16-12-91, Smt. Elaichi Devi, executed a general power of Attorney, (Annexure 6) in favour of Sri Anil Bhardwaj, authorising him to appear in the cases on her behalf. The learned counsel says that this is an evidence of collusion between the contemner and Sri Suresh Pal Singh on the one hand and Smt. Elaichi Devi and the contemner on the other. I do not agree. 25. Taking the worst, it has been alleged in the counter affidavit of Sri Suresh Pal Singh, dated 12-9-96 (Annexure 2), in paragraph 6 as noted below: "the petitioner entered into an agreement on 8-12-94 with the deponent (Suresh Pal) and gave possession of the property to the deponent and caused demolition of the construction with the consent of the deponent. Hence no cause is subsisting for maintaining of the writ petition. The wall was demolished with consent of deponent and petitioner. " In support thereof, he relies upon the agreement deed dated 8-12-94 entered into between the deponent and the petitioner (Annexure 3 to the petition ). This way Sri Suresh Pal Singh has taken the liability upon him by admitting that he has demolished the constructions with the consent of petitioner. He does not mention a word that Sri Anil Bhardwaj was also a party to this agreement. This is a question of fact, although denied by the petitioner, but it still remains a question of fact, Prima facie there is a strong evidence available on the record in the shape of the agreement executed the petitioner in favour of ri Suresh Pal Singh. This is a question of fact, although denied by the petitioner, but it still remains a question of fact, Prima facie there is a strong evidence available on the record in the shape of the agreement executed the petitioner in favour of ri Suresh Pal Singh. On this basis, it can be said that it is not the contemner but Sri Suresh Pal Singh- non-Party, who is responsible for this alleged demolition. Proceedings may be started by the petitioner against him because Sri Suresh Pal totally exonerates the contemner rather he alleges that he acted with an authority conferred upon him by the petitioner himself. 26. Taking the totality of the facts and circumstances existing on the record, I find that it has not been proved to the hilt that the case of alleged contempt committed by the contemner Sri Anil Bhardwaj, has been established on the record. 27. The contempt petition is dismissed. Cost easy, it is made clear that the observations on the points of fact made by this court during the course of this judgment, shall not bind the lower court or any other court while deciding the suits and the petitions in the pending or likely to be pending suits and other civil or criminal proceedings. Those courts shall not at all be influenced by these observations and they will decide the cases on the basis of evidence existing on their files. After the decision of writ petition No. 28293 of 1993 finally, the petitioner can file a fresh contempt petition against the contemner or other persons, which shall be decided on the merits of that case. This judgment cannot operate as resjudicata Petition Dismissed.