JUDGMENT Banwari Lal Sharma, J. - The present misc. appeal is preferred by the appellant-non-applicant assailing the impugned order dated 27.10.2010 passed by learned Additional District Judge No. 9, Jaipur City in Civil Misc. Application No. 29/2008 submitted under Order 39, Rule 2A CPC whereby learned Court below convicted the appellant-nonapplicant for one month civil imprisonment for disobeying the Court order dated 18.07.2007. 2. The brief facts of the case are that appellant-plaintiff filed a suit for partition with application for temporary injunction wherein on 18.07.2007 following order was passed :- 3. Thereafter, on 05.05.2009, respondent-defendant filed an application under Order 39, Rule 2A CPC before the Court below wherein it was stated that after passing the aforesaid order, appellant-non-petitioner constructed a wall of three feet height on the roof of two rooms between 20.04.2009 - 23.04.2009, accordingly, she deliberately dis-obeyed the order and committed contempt of Court, wherein after hearing learned Court below convicted the appellant as aforesaid vide impugned order dated 27.10.2010. 4. Aggrieved by the aforesaid order, appellant-non-petitioner preferred this misc. Appeal before this Court. 5. Mr. V.V. Harit learned counsel appearing on behalf of appellant submits that from the perusal of impugned order, it seems that learned Court below didn't consider the evidence of parties which were available on record, rather decided the application after applying the provision enshrined under Order 8, Rule 5 CPC treating the reply of respondent as admission in absence of specific denial, therefore the impugned order is not sustainable. 6. Mr. Sanjog Kamal Sharma learned counsel appearing on behalf of respondent supported the impugned order and submits that even after repeated try, respondent is not in his contact and she failed to supply him the required documents and file. However, he assisted the Court at his best. 7. I have considered the submissions made at Bar. 8. From the perusal of impugned order, it reveals that learned Court below specifically observed that since non-petitioner specifically not denied the allegations levelled by the petitioner in her application submitted under Order 39, Rule 2 A CPC, therefore according to Order 8, Rule 5 CPC, it amounts to admission and decided the application without appreciation of evidence available on record. 9. From the perusal of record, it reveals that appellant-nonpetitioner in her reply specifically pleaded that " 10. 9. From the perusal of record, it reveals that appellant-nonpetitioner in her reply specifically pleaded that " 10. therefore, considering the averments made in reply, it cannot be said that appellant-non-petitioner didn't deny from the allegations levelled in the application. 11. Further, she submitted her affidavit as DW-1 for examination in chief, wherein she clearly stated that "' 12. Similarly, DW-2 in his affidavit submitted for examination in chief also denied the allegations but their statements have not been considered and appreciated by the learned Court below. 13. Without considering the evidence available on record, learned Court below only after applying the provision enshrined under Order 8, Rule 5 CPC allowed the application submitted under Order 39, Rule 2A CPC, which is not sustainable and this misc. appeal deserves acceptance. Accordingly, this misc. appeal is allowed and the impugned order dated 27.10.2010 is quashed and set aside and matter is remitted back to learned Court below with direction that after appreciating oral as well as documentary evidence available on record and after giving opportunity of hearing to parties, matter be decided afresh according to law. 14. Parties are directed to appear before the Court below on 26th September, 2018. 15. Registry is directed to ensure that record of the Court below with copy of this order be reached before the trial Court before the aforesaid date.