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2012 DIGILAW 699 (HP)

Jameet Singh v. Raj Kumar

2012-10-09

SURINDER SINGH

body2012
JUDGMENT : Surinder Singh, J. (Oral) The instant appeal has been preferred by the appellant, hereinafter referred to as the petitioner, feeling aggrieved and dissatisfied by the order passed by the learned District Judge in CMA No.401 of 2007, decided on 5.8.2011, whereby the application preferred by the petitioner under Order 39 Rule 2-A of the Code of Civil Procedure alleging defiance, was dismissed. 2. Record of the learned Court below was called for and the matter was heard on admission. 3. The perusal of the record shows that CMA No.6 of 2007 was preferred by the petitioner, before the learned District Judge. Vide order dated 13.6.2007, the learned District Judge ordered to maintain status quo qua the nature and possession of the suit property till disposal of the main suit pending trial between them before the learned trial Court with a further direction to the respondent to remove the debris excavated during the construction of the retaining wall in the path within a fortnight from the date of passing the order. According to the petitioner, the debris was not removed within time and was still lying on the spot, as such made a request to detain the respondent in civil prison as a consequence of breach of above order. 4. The respondent denied the above allegation. According to him, he had complied with the orders. 5. On the pleadings of the parties, the learned District Judge framed the issues accordingly. Both the parties led their evidence. On the appreciation of the evidence, the learned District Judge held that in fact petitioner Jameet Singh did not appear as a witness to corroborate his case, whereas only his wife appeared PW1, as Special Attorney, thus drew adverse inference for the non-examination of the petitioner. Further, both the PWs were joint owners of their land, but were not aware of the total area of the land and also its boundaries. The learned District Judge also took note of the statements of the respondent and his witness and came to the conclusion that the alleged defiance stands not proved. 6. As a matter of fact, the proceedings envisaged under Order 39 Rule 2-A of the Code of Civil Procedure are penal in nature and defiance thereof is required to be proved by the party like a criminal case. 6. As a matter of fact, the proceedings envisaged under Order 39 Rule 2-A of the Code of Civil Procedure are penal in nature and defiance thereof is required to be proved by the party like a criminal case. The petitioner relies upon the photograph mark-A alleged to have been taken by PW1 and also the statement of PW2 Balwant Singh, Pradhan, but their statements do not show that the debris was still lying on the disputed land, whereas RWs1 and 2 stated that it was cleared from the spot, as directed. In absence of any cogent evidence pinpointing the disputed land and non-removable of the debris by the respondent, it stands not proved that the respondent did not comply with the said order. Therefore, the appeal is dismissed in limine, so also the pending application, if any.