P. S. NARAYANA, J. ( 1 ) HEARD the learned Counsel. ( 2 ) THIS CRP is filed by the judgment debtor No. 1 in E. P. No. 99 of 1994 on the file of V Junior Civil Judge, City Civil Court at Hyderabad, dated 14-6-2000. Though the order was made sentencing both the judgment-debtors to undergo imprisonment for two years each, the direction was given to issue warrant to both of them, judgment-debtor No. l alone had questioned the said order. The facts in a nutshell are as follows: ( 3 ) THE first respondent-decree-holder filed EP No. 99 of 1994 on the file of the V Junior Civil Judge, City Civil Court at Hyderabad, under Order 21, Rule 32 (2) CPC praying the Court to detain the judgment-debtors in civil prison for wilful disobedience of the decree of injunction dated 30-12-1992 in O. S. No. 2142 of 1992. The revision petitioner-judgment debtor No. 1 had filed a counter-affidavit denying the allegations alleged by the first respondent decree-holder. No doubt, he had admitted that he is the tenant of the 1st respondent and his father by name Khasim Khan was the Nigrankar for more than 40 years during his life time and he became the tenant of the said property after the death of his father in the year 1983 and the suit property is a Wakf property and he has been residing in the western portion of the suit property. He had also specifically averred that he did not carry out any construction whatsoever in the western portion to his property. The judgment-debtor No. 2 also had filed a counter-affidavit. It is pertinent to note that no witnesses were examined. A Commissioner was appointed and on the strength of a report of the Commissioner, the Court below had come to the conclusion that the judgment debtors 1 and 2 are guilty of violating the orders of the Court and had sentenced to undergo imprisonment for two months each. ( 4 ) SRI C. R. Pratap Reddy, learned Counsel representing the revision petitioner had explained the peculiar situation in which judgment debtor No. 1 alone had preferred the present CRP though the Court below had sentenced both the judgment debtors to undergo imprisonment for a period of two months. ( 4 ) SRI C. R. Pratap Reddy, learned Counsel representing the revision petitioner had explained the peculiar situation in which judgment debtor No. 1 alone had preferred the present CRP though the Court below had sentenced both the judgment debtors to undergo imprisonment for a period of two months. The learned Counsel had drawn my attention to the report of the Commissioner, the plaint filed in the suit, the judgment and decree filed in the said suit. The learned Counsel also had drawn my attention to several portions of the impugned order where there are several disputed questions. ( 5 ) THE learned Counsel had contended that along with the plaint there was no plan annexed and the particulars of the constructions had also not specified. Apart from all these, no evidence was given to prove the wilful disobedience, and hence, the impugned order is liable to be set aside. He placed strong reliance on the judgments of the Supreme Court in State of Bihar v. Sonabati Kumari, AIR 1961 SC 221 , Kariyappa v. Haladappa, AIR 1989 Karn. 163, Kedarnath Khetan v. Jainarain Ram, AIR 1954 Pat. 497 and Harihar Pandey v. Mangala Prasad Singh, AIR 1986 All. 9 . ( 6 ) SRI Mohd Ghulam Hussain, learned Counsel representing the 1 st respondent had contended that the report of the Commissioner can be treated as evidence and the Court had arrived at the correct conclusion in making the impugned order and therefore, it does not suffer from any legal infirmity whatsoever. ( 7 ) IT is not in dispute that no oral evidence had been let in by the parties, and no documents also were marked on either side. In fact, the Court below at para 10 of the order observed as follows: "on the Commissioner s report judgment debtor No. 1 filed objections stating that the Advocate Commissioner did not come to the schedule at 10. 30 a. m. , on 10-4-1999, but he came at about 12. 00 p. m. , in Fiat car along with Decree Holder Secretary and commenced the work at 12. 20 p. m. This Court is not going to consider this objection at all because there is no substantial material placed by judgment-debtor No. l before this Court to support the aforesaid aspects. Judgment-debtor No. 1 Counsel also denied that there is a thatched partition in B Schedule property. 20 p. m. This Court is not going to consider this objection at all because there is no substantial material placed by judgment-debtor No. l before this Court to support the aforesaid aspects. Judgment-debtor No. 1 Counsel also denied that there is a thatched partition in B Schedule property. A mere denial of the Commissioner s report without placing any iota of oral or documentary material before this Court cannot be accepted at all. If really there are latches on the part of the Advocate Commissioner, then the judgment debtor Counsel can cross-examine the Advocate Commissioner by filing a petition before this Court. But he has not chosen to do so. The objections of judgment-debtor No. l are not supported with any material to enlight this Court, so that, this Court is not going to accept those flimsy objections. " ( 8 ) THE judgment in OS No. 2142/1992 on the file of the V Assistant Judge. City Civil Court, Hyderabad, dated 30-12-1992 reads as under: "pw1 is examined. Ex A1 to A4 are marked. Suit claim is proved. Suit is decreed with costs as prayed for. " ( 9 ) THE suit claim is for perpetual injunction restraining the defendants, their agents, workmen etc. , from making any construction or otherwise changing the nature of the suit house as shown in the schedule a and b hereunto. ( 10 ) THE decree also reads that the defendants, their agents, workmen, etc. , are hereby perpetually restrained from making any construction or otherwise changing the nature of the suit houses (portions), as shown in the A and B schedule hereunto to this decree. ( 11 ) IN para 4 of the plaint, it was pleaded as follows: "that the defendants without any right and title are illegally attempting to make construction on the eastern side suit land and in the suit house. The defendant No. 2 is the son-in-law of Sri Marghoobul Hasan who is in unlawful possession of the northern portion of house No. 16-1-167 and against whom the plaintiff has obtained decree for recovery of possession and mesne profits in OS No. 803/78 in the Court of the II Additional Judge, City Civil Court, Hyderabad, has developed hostile attitude towards the plaintiff and they are in collusion of each other. The defendants on 21-5-1992 illegally tried to dig pits for making construction on the suit land and the same was resisted on receiving information and work was stopped by the plaintiff. The defendants are threatening that they would occupy the suit land and make construction on the suit land and also in the suit house. The plaintiff is unable to protect its lawful possession and to prevent the construction unless the defendants are restrained by grant of injunction by this Hon ble Court. " ( 12 ) THE alleged disputed constructions whether they were made after the suit or long prior to the institution of the suit, whether such disputed constructions are there or not and whether the judgment debtors had clearly violated the decree or not, all these aspects are all factual aspects, which have to be proved by the first respondent-decree-holder. In this context, it is relevant to look into Order 21, Rule 32 (1) and (2) CPC, which reads as follows: "32. Decree for specific performance for restitution of conjugal rights, or for an injunction : (1) Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced in the case of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific performance of a contract, or for an injunction by his detention in the civil prison, or by the attachment of his property, or by both. (2) Where the party against whom a decree for specific performance or for an injunction has been passed is a corporation, the decree may be enforced by the attachment of the property of the Corporation or, with the leave of the Court, by the detention in the civil prison of the Directors or other principal officers thereof, or by both attachment and detention. " ( 13 ) IN State of Bihar v. Sonabati Kumari (supra), the Apex Court had made an attempt to explain the wilful disobedience of the orders. " ( 13 ) IN State of Bihar v. Sonabati Kumari (supra), the Apex Court had made an attempt to explain the wilful disobedience of the orders. In Kedarnath Khetan v. Jainarain Ram (supra), it was held that the question whether the party had an opportunity or not to obey the decree or whether he wilfully disobeyed it is a question of fact and must be decided on the facts of each particular case. In Abdul Latif Nomani v. Commissioner, Gorakhpur, AIR 1968 All. 44 , Ramnath v. Smt. Tapesra, AIR 1985 All. 26 and Harihar Pandey v. Mangala Prasad Singh (supra), it was held that a decree for perpetual injunction can be executed only when the Court records a finding of wilful failure to obey the decree and finding that the judgment-debtor had failed to obey the decree inspite of the opportunity in this regard. In Kariyappa v. Haladappa (supra), while dealing with the aspect of wilful disobedience, it was observed "wilfulness connotes a "deliberate action ", conduct moulded by an obstinacy to act consciously disregarding an injunction against such a conduct. For example, in the case of a right of way, the judgment-debtor may plead that on a particular day he had to put up a fence across it to avert a major disaster and not with a view to obstruct the decree-holder. He may agree to the removal of the obstruction or agree to provide a convenient alternate pathway to the decree holder, when called upon to do so under Order 21, Rule 32 (1) CPC in such a situation, disobedience cannot be termed as wilful. But the initial onus to place the relevant material for an action against the judgment debtor will be always on the decree-holder". Thus, the initial onus to place the relevant material for a direction to arrest the judgment-debtor is always on the first respondent in the present case. ( 14 ) COMMISSIONER was appointed in this case but, however, that order was not challenged. The report filed by the Advocate Commissioner is as follows: "in pursuance of the warrant of commission issued by this Hon ble Court in E. A. No. 58 of 1998 in E. P. No. 99 of 1994 in O. S. No. 2142 of 1992, I have issued notice to the Counsels on record. I fixed the commission of 10-4-1999 at 10. I fixed the commission of 10-4-1999 at 10. 30 a. m. The Hon ble Court was pleased to appoint me as Commissioner for the purpose to note -down the existence of features by drawing sketch of the plaint A and B schedule property as described in the decree bearing premises No. 16-1-167 situated at Darul Aqama, Saidabad, Hyderabad. I went to the suit schedule premises at about 10-30 a. m. By the time I reached the suit schedule premises at about 10-30 a. m. the Counsel for decree-holder, the Secretary of the Wakf property and the Judgment-Debtor Nos. 1 and 2 along with their Counsels were present at the suit schedule premises. The suit schedule premises was identified by the decree-holder. I started the execution of commission at about 10-45 a. m. I seen the Door No. 16-1-167 which is of schedule A and schedule B property. The schedule A property is the constructed property. The schedule B property is the open land. There is thatched partition on the basement in the schedule B property dividing schedule B property into two parts. The northern side of the courtyard is not in use and I found the latrine and septic tank which is not in use and collapsed. There is pial in the middle of the courtyard attached to thatched portion. It is seen on the basement thatched portion was erected, towards the eastern side of the open land temporary room and latrine in B schedule of the property towards the southern side there is pial and also there were plants. At the entrance of the suit schedule property there are two doors which leads to open courtyard and schedule A property. The two doors of schedule A property which find its way into open courtyard of schedule B property. The southern portion of B schedule property is in use of Mujeeb Ahmed. On inspecting the open courtyard of B schedule property it seems that some construction was done long back. I drawn the rough and fair sketch of schedule A and B property. The southern portion of B schedule property is in use of Mujeeb Ahmed. On inspecting the open courtyard of B schedule property it seems that some construction was done long back. I drawn the rough and fair sketch of schedule A and B property. " ( 15 ) EVEN from this material available, it is pertinent to note that in a matter of this nature without examination of the Commissioner and giving an opportunity to the opposite party to cross-examine, the Commissioner, in the facts and circumstances of the case, in my considered opinion, the order of this nature cannot be passed. While making an order of imprisonment involving the liberty of the parties, Courts always are to be careful to see that sufficient proof is available in relation to the violation of the decree. When such factual disputes are there, unless the evidence is recorded by giving opportunity to both the parties. Court cannot arrive at the correct conclusion by recording proper findings in this regard. In any view of the matter, the impugned order is not sustainable in law and it suffers from infirmity and it is liable to be set aside. ( 16 ) FOR the foregoing reasons recorded above, the impugned order dated 14-6-2000 made in E. P. No. 99/1994 on the file of the V Junior Civil Judge, City Civil Court, Hyderabad, is hereby set aside and the matter is remitted back to the Court below to give opportunity to both parties to let in evidence to their respective contentions and decide the matter afresh in accordance with law. ( 17 ) IN the result, the CRP is allowed to the extent indicated above. ( 18 ) BUT, in the circumstances, no order as to costs.