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2001 DIGILAW 614 (CAL)

SANKAR CHAKRABORTY v. PRATAP CHAKRABORTY

2001-09-21

BHASKAR BHATTACHARYA

body2001
B. BHATTACHARYA, J. ( 1 ) THIS is an application for contempt on the allegation of willful disobedience of my order dated December 22, 1999 by which I disposed of a revisional application preferred by the petitioner by setting aside the order passed by the learned first appellate Court below and directing the parties to maintain status quo as regards the suit property with specific direction that so far room No. 1 is concerned, the petitioner and his men and agent will have right of passage over it for the purpose of going to room No. 2 and such right of passage should not be interfered with by the plaintiff. ( 2 ) THE petitioner has alleged that inspite of full knowledge of the said order, the plaintiff has put a padlock at the gate of room No. 1 thereby preventing the petitioner and his customers from entering into room No. 2 which is a place of business of the petitioner. ( 3 ) SUBSEQUENTLY, by supplementary affidavit the petitioner has annexed photographs taken on May 23, 2001 and June 25, 2001 showing that the grill-gate in front of the door of room No. 1 is kept under lock and key. ( 4 ) THE instant application has been opposed by plaintiff by filing affidavit thereby denying the materials allegations made in the application for contempt. According to the plaintiff, he has never obstructed the defendant No. 1 or his men and agents from using room No. 1 as entrance to room No. 2. It has however been admitted that a padlock has been kept at the grill-gate in front of the main gate of room No. 1, but according to the plaintiff, such padlock is put between 9 pm. and 6 am. for the security of the plaintiff and the members of his family and even during the said hours, whenever defendant intended to enter, such lock has always been opened and the defendant No. 1 and his men and agents have been permitted to use room No. 1 for the purpose of passage to room No. 2. ( 5 ) THE other facts stated in the application have also been disputed by the plaintiff. ( 6 ) AT the very outset, I make it clear that I am not at all convinced by the submission of Mr. ( 5 ) THE other facts stated in the application have also been disputed by the plaintiff. ( 6 ) AT the very outset, I make it clear that I am not at all convinced by the submission of Mr. Roychowdhury that in view of existence of an alternative remedy under Order 39 Rule 2a of the Code of Civil Procedure this application is not maintainable. I am of the firm view that notwithstanding availability of an alternative remedy under the aforesaid provisions of the Code, this Court in exercise of its special civil jurisdiction under Contempt of Courts Act as well as Article 215 of the Constitution of India pass appropriate order in case of willful violation of any injunction order. ( 7 ) AFTER hearing the learned counsel for the parties and after going through the materials on record I am prima facie convinced that there have been some obstructions caused to the defendant No. 1 and his men and agents in using room No. 1 as passage for room No. 2. However, in order to hold a person guilty for contempt and to penalise him, such fact must be established beyond any reasonable doubt. After going through the materials on record I find that whether the lock shown in the photograph was really placed only between 9 pm. and 6 am. as stated by way of defence or whether even during that period plaintiff permitted defendant No. 1 and his men and agents to enter the room as alleged cannot be conclusively decided on the basis of materials placed before this Court and for that purpose, regular trial by adducing oral evidence is necessary. Under the aforesaid circumstances, although I am prima facie satisfied about the obstructions faced by the defendant No. 1 and his men and agents, I do not propose to pass any penal order upon the plaintiff at this stage. However, I direct the plaintiff to remove the padlock fixed by him as shown in the photograph annexed-to-the supplementary affidavit and to replace the same with a new one and to give duplicate key of the lock to the defendant No. 1. However, I direct the plaintiff to remove the padlock fixed by him as shown in the photograph annexed-to-the supplementary affidavit and to replace the same with a new one and to give duplicate key of the lock to the defendant No. 1. The plaintiff, if so desires, can also in addition to the lock placed at the grill-gate fix another lock on the wooden door of room No. 1 with similar duplicate key given to the defendant No. 1, but in any case, there should not be any latch from the inner side of the room No. 1. If a lock is fixed on the door itself, in addition to the lock fixed on the grill-gate, the security of the plaintiff will be adequately protected. ( 8 ) I, thus, dispose of this application by directing the plaintiff to remove the padlock placed on the grill-gate and also to remove latch or other obstruction from the inner part of room No. 1 and to place new lock on the grill-gate and also on the wooden door itself with duplicate key to defendant No. 1. The cost of putting on padlock on the grill-gate and/or door itself will be borne out equally by plaintiff and defendant No. 1; such padlock must be removed positively within 48 hours from today. With the above observations, the contempt Application disposed of. Rule is disposed of accordingly. No. order as to costs. Application disposed of 21. 9. 2001 urgent xerox Certified copy of this order, if applied for, the same be given to the learned advocate within one week.