ORDER : Arun Bhansali, J. This revision petition is directed against the orders dated 20.11.1984 passed by Munsif, Phalodi, whereby, the application under Order XXXIX Rule 2A CPC filed by the respondents herein has been allowed and the petitioners Shri Gopal and Hanuman have been sentenced to one month's civil imprisonment and dated 21.2.1993 passed by Addl. District Judge, Phalodi, whereby, the appeal filed by the appellants against the order dated 20.11.1984 has been rejected. 2. A suit for declaration and mandatory injunction was filed by Heeralal pertaining to the land situated at Dholabala against defendant Shri Gopal and his son Hanuman; along with the suit an application under Order XXXIX Rule 1 and 2 CPC was filed seeking temporary injunction against the defendants from raising construction at the disputed site. On 22.1.1980 Commissioner was appointed ex-parte directing him to visit the site and produce the report by 23.1.1980 while issuing notice to the defendants; on 23.1.1980 the Commissioner produced his report, which was taken on record. On 24.1.1980 on behalf of the defendant Shri Gopal one D.D. Changgani produced authority letter and undertook that status quo would be maintained and no new construction would be raised and, therefore, time was granted for filing reply. Whereafter, ultimately by order dated 28.8.1980 the application under order XXXIX Rule 1 & 2 CPC was allowed and the defendants were directed not to raise construction at the disputed site and not to make any change in the construction already raised. 3. On 24.5.1980, an application under Order XXXIX Rule 2A CPC (though indicated as Order XXXIX Rule 2(3) CPC) was filed by the plaintiff inter alia indicating that undertaking was given on behalf of the defendants that they would maintain status quo and would not make any changes. Whereafter, on the southern side of the house slabs have been placed, construction of a room, which was incomplete, has been completed and doors have been put, flooring has been completed in another room and flour mill has been installed and cement tank has already been constructed, which amounts to violation of the injunction and, therefore, action be taken against the defendants. Another application in the same proceedings was filed on 9.7.1980, further elaborating the averments already made. On 18.7.1980, an application was filed for appointment of Commissioner, which application was allowed and Commissioner was appointed for giving the report. 4. Another application in the same proceedings was filed on 9.7.1980, further elaborating the averments already made. On 18.7.1980, an application was filed for appointment of Commissioner, which application was allowed and Commissioner was appointed for giving the report. 4. A reply to the application was filed by the appellants inter alia denying the averments made in the application, it was denied that no new construction has been raised, no further work has been undertaken and, therefore, the application be rejected. 5. In support of the application, three witnesses were examined and on behalf of the non-applicants four witnesses were examined. 6. The trial court after hearing the parties came to the conclusion that A.W.2-Dev Kishan has alleged raising of construction of a room, which has been proved based on the Commissioner report (Ex.5) by A.W.3-Heera Ram, contrasting the report Ex.5 dated 22.1.1980 with report dated 19.7.1980 (Ex.6), and construction of a tank was also indicated. Based on the material which came on record, the court came to the conclusion that both the constructions were raised after the order of injunction was granted by the court and, therefore, the direction issued by the court has been violated and sentenced the non-applicants with one month's civil imprisonment. 7. Feeling aggrieved, the petitioners filed appeal. The first appellate court by its impugned judgment came to the conclusion that from the evidence which has come on record, after the undertaking was given, the appellants have raised construction, which is apparent from the Commissioner's report dated 19.7.1980 and consequently dismissed the appeal. 8. It is submitted by learned counsel for the petitioners that from the entire material which came on record before the trial court it is not proved that the petitioners committed violation of any injunction granted by the court. It was submitted that no undertaking whatsoever was produced by the petitioners, southern portion of the house does not belong to them and it is owned by Smt. Amba Devi to whom the property was gifted on 24.7.1972 by registered document, who was in possession of the said portion and she was not a party to the case. The petitioners did not raise any construction towards the property of Amba Devi and if Amba Devi has raised any construction, the petitioners cannot be held liable. The petitioners did not raise any construction towards the property of Amba Devi and if Amba Devi has raised any construction, the petitioners cannot be held liable. It was submitted that the trial court did not advert to the statement of Dev Kishan and Shri Gopal and concluded that room has been constructed, which aspect was not proved. 9. Further submissions were made that even the tank was also not constructed, the trial court did not decide the fact as to whether at all the injunction was violated and, therefore, the order impugned deserves to be quashed and set aside. 10. Reliance was placed on Samee Khan v. Bindu Khan : 1999 (1) WLC 518 and Samee Khan v. Bindu Khan : AIR 1998 SC 2765 . 11. Learned counsel appearing for the respondent supported the orders impugned. It was submitted that the violation of the injunction is ex-facie clear from the record and the plea raised by the petitioners in this regard cannot be countenanced. It was submitted that the undertaking was given by the counsel before the trial court on 24.1.1980 and whereafter the violation of the injunction has taken place, which is apparent from the Commissioner's report Ex.5 and Ex.6. 12. Further submissions were made that the plea now sought to be raised pertaining to fact that portion of the property where the construction has been raised belong to Amba Devi was not raised before the two courts below and, therefore, it is not open for the petitioners to raise the said aspect in these proceedings. It was submitted that at no stage it was contended by the petitioners that they were unaware of the undertaking given and the pleas now sought to be raised are only by way of an afterthought and, therefore, the revision petition deserves to be dismissed. 13. I have considered the submissions made by learned counsel for the parties and have perused the material available on record including the record of temporary injunction in which undertaking /injunction was given/granted and the proceedings under Order XXXIX Rule 2A CPC. 14. At the outset it may be noticed that the suit was filed by Heeralal against Shri Gopal and Hanuman. After filing of the suit, Heeralal died and his legal representatives came on record. The application under Order XXXIX Rule 1 and 2 CPC was filed by legal representatives against both the defendants. 14. At the outset it may be noticed that the suit was filed by Heeralal against Shri Gopal and Hanuman. After filing of the suit, Heeralal died and his legal representatives came on record. The application under Order XXXIX Rule 1 and 2 CPC was filed by legal representatives against both the defendants. Shri Gopal also died during the pendency of present revision petition and now it is only Hanuman, who is the petitioner before this Court. 15. As already noticed hereinbefore, when the application under Order XXXIX Rule 1 and 2 CPC came before the trial court on 22.1.1980, while issuing notice to the defendants Commissioner was appointed, the rule was made returnable on 23.1.1980, on 23.1.1980 counsel D.D. Chhangani appeared on behalf of Hanuman and Commissioner also produced his report, the order sheet dated 24.1.1980 reads as under: ^^24-01-1980 i{kdkjku ds vfHkHkkod miŒ izfroknh Jh xksiky dh rjQ Jh MhŒMhŒ Nxk.kh us vFkksZVh ySVj is'k fd;k tks 'kkfey jgs odhy Jh MhŒMhŒ Nxk.kh ;g vUMjVsfdax ysrs gS fd ;FkkfLFkfr dk;e j[kh tkosxh vkSj dksbZ u;k fuekZ.k dk;Z ugha djok;saxsA vr% ekeyk vk;Unk okLrs tcko o cgl fnuakd 02-02-1980 dks is'k gksA ,lMh@& eqaflQ ,oa U;kf;d eftLVsªV izFke oxZ] QykSnhA** 16. The application alleging violation of undertaking dated 24.1.1980 was filed on 24.5.1980, relevant allegations read as under: ^^1- fd oknh dh vkSj ls is'k fd;s x;s nkos esa vnkyrokyk }kjk dfe'uj eqdjj fd;k x;k FkkA ftlus LFky dk fujh{k.k dj Li"V :i ls gks;s gq, fuekZ.k dk;Z dk mYys[k djrs gq, viuh fjiksVZ is'k dh FkhA 2- fd izfroknhx.k }kjk ;g vaMjVsfdax fy;k x;k Fkk fd os ;FkkfLFkfr dk;e j[ksaxs vkSj fdlh izdkj dk ifjorZu ;k ifjo}Zu ugha djsaxsA 3- fd izfroknhx.k us blds mijkar cus gq, edku ds nf{k.k dh rjQ ck;sa dh rjQ if'pe fdukjs dh vkSj Nh.ksa jksi nh gSA cus gq, edku ds nf{k.k rjQ ds v/kwjs dejs dk iwjk dj mlds fdokM+ yxk fn;s gS vkSj iwoZ dh rjQ Nh.kksa o VqdM+ksa ls dejk cuk;k x;k FkkA mlesa Q'kZ cukdj o QkmaMs'ku Hkjdj pDdh yxk nh gS vkSj mlds ckgj dh rjQ ,do lhesaV dh dwaM+h cukyh gSA 4- fd bl izdkj izfroknhx.k us vnkyr ds vkns'k dh vogsyuk dh gSA** 17. Non-applicants Shri Gopal and Hanuman filed the following reply to the said application: ^^1- fQdjk uaŒ 1 izkFkZuk i= dk ;g tckc gS fd oknhx.k us ,d >wBk nkok izfroknhx.k ds fo:) is'k fd;k gS tks bl U;k;ky; esa tSj rtoht gSA 2- fQdjk uaŒ 2 jSdM+Z ds eqrkfyd gS blfy;s tckc nsus dh vko';drk ughaA 3- fQdjk uaŒ 3 izkFkZuk i= drbZ xyr gS vkSj ukeatwj fd;k tkrk gSA vizkFkhZx.k us fLFkfr esa dksbZ ifjorZu djuk vkjEHk ugha gS vkSj u mUgksaus nkok is'k gksus ds ckn dksbZ Nh.ksa jksih gSa ckdh fQdjs ds tckc dh t:jr ugh gSA 4- izkFkZuk i= dk fQdjk uaŒ 4 drbZ xyr gS lkS ukeatwj fd;k tkrk gSA izfroknhx.k us dksbZ fuekZ.k dk;Z 'kq: ugha fd;k gS vkSj u mUgksaus dejk cuk;k gS vkSj u dksbZ dek py jgk gSA izfroknhx.k us dksbZ ikuh fudkyus dh ukyh ugha jksdh gS vkSj u oknhx.k ds edku esa dksbZ ikuh bdBk gksrk gSA izkFkhZx.k us ;g izkFkZuk egt izfroknhx.k dks gSjku o ijs'kku djus dh fu;r ls is'k fd;k gS tks e; [kjps [kkjht Qjek;k tkosA** 18. Additional reply was also filed on 2.8.1980. The crucial paragraph reads as under: ^^1- fQdjk uaŒ 1 nj[okLr tehu eqruktk dk ekfyd oknhx.k ugha gS cfYd izfroknhx.k gh gS vkSj oknhx.k dks viuh tehu ij Nh.ks [kM+h djus dk vkSj bekjr cukus dk iw.kZ gd gkfly gSaA vkSj bl rjg ls fQdjk uaŒ 1 ftl rjg ls o.kZu fd;k gS lgh ugha gSA** 19. A bare look at the allegations made in the application and the response given by the petitioners herein clearly shows that the case of the applicants was specifically regarding violation of the undertaking given before the court and raising of construction after the undertaking was given. Nowhere in response to the said application the petitioners herein raised any dispute about their having not given any undertaking/they being unaware of the undertaking/undertaking being unauthorized/the construction not existing as alleged in the application. 20. The trial court based on the two Commissioner's report i.e. report dated 22.1.1980 (Ex.5) and report dated 19.7.1980 (Ex.6) after contrasting the reports came to the conclusion that construction has been raised during the period 23.1.1980 and 19.7.1980 and found the same in violation of the undertaking given on behalf of the petitioners herein. 20. The trial court based on the two Commissioner's report i.e. report dated 22.1.1980 (Ex.5) and report dated 19.7.1980 (Ex.6) after contrasting the reports came to the conclusion that construction has been raised during the period 23.1.1980 and 19.7.1980 and found the same in violation of the undertaking given on behalf of the petitioners herein. The said finding of the trial court, as upheld by the first appellate court, does not admit of any other interpretation other than what has been reached concurrently by the two courts below, as the change in status of the disputed premises in the two Commissioners' report is too apparent. 21. So far as the submission made by counsel for the petitioners regarding lack of proof as to raising construction is concerned, the additional reply quoted hereinbefore dated 2.8.1980 does not leave any manner of doubt that the construction was raised by the petitioners as it was specifically asserted by the defendants themselves, besides the fact that at no stage the petitioners even disputed the fact that the construction, if any, was raised by someone else. 22. So far as another plea now sought to be raised in the present revision petition about the ownership of the disputed portion vesting in Amba Devi by way of gift deed in her favour is concerned, the said plea also was not raised during the course of proceedings before the trial court/first appellate court and, therefore, now it is too late in the day for the petitioners to raise the said plea, which apparently is only an attempt to get out of the situation in which the petitioners find themselves on account of passing of the order sentencing them to civil imprisonment for a period of one month. 23. In view thereof, the concurrent finding of the two courts below pertaining to violation of undertaking and raising of construction by petitioners does not call for any interference. Once the violation of the direction issued by the trial court and finding recorded thereon are apparent, in terms of the provisions of Order XXXIX Rule 2A CPC the petitioners are liable for consequences thereof and as such have been sentenced to one month's civil imprisonment. 24. Once the violation of the direction issued by the trial court and finding recorded thereon are apparent, in terms of the provisions of Order XXXIX Rule 2A CPC the petitioners are liable for consequences thereof and as such have been sentenced to one month's civil imprisonment. 24. Leaned counsel for the petitioners made submission that looking to the nature of the case, wherein though the suit filed by the plaintiffs was decreed on 2.8.1983, the first appellate court by its judgment dated 9.9.1997 partly allowed the appeal and remanded back the matter to the trial court and directed it to decide the issue no. 12 framed by the appellate court, further misc. appeal filed by the plaintiffs was decided by this Court on 2.5.2017, whereby, the order passed by the first appellate court was not interfered with and as such, now the matter is still before the trial court; one of the petitioners has died during the pendency of the revision petition, the sole petitioner now is also a senior citizen, a lenient view of the matter may be taken in the circumstances of the case. 25. Though the violation of the direction issued by the trial court needs to be dealt with sternly and only because of the fact that the matters could not be taken up by the courts with expedition, the gravity of the violation does not stand diluted. However, in view of the fact that the suit filed by the plaintiffs way back in the year 1980 is still pending before the trial court, the violation took place way back in the year 1980 and the fact that the proceedings for violation of injunction have remained pending now for almost four decades, interest of justice would be met if instead of sending the sole surviving petitioner to civil imprisonment, a fine, though not contemplated by provision of Order XXXIX Rule 2A CPC, is imposed on the petitioner. 26. Consequently, the revision petition filed by the petitioner is partly allowed, while the finding recorded by the two courts below on the issue of violation of undertaking dated 24.1.1980 given by the petitioner before the trial court is upheld, the sentence awarded is modified, and instead of petitioner being sentenced to civil imprisonment for a period of one month, a fine of Rs. 20,000/- is imposed. 20,000/- is imposed. The fine be deposited with the trial court within a period of one month from the date of this order. On failure to deposit the said amount of fine within a period of one month, the sentence awarded by the trial court as upheld by the first appellate court would sprang up and the petitioner would be sent to civil jail for a period of one month.