HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. Contempt (C) no. 5 OF 2004 Kaki Devi Petitioners Karan Singh & Ors Respondent !Mr. B. L. Kalgotra, Advocate ^Mr. O. P. Sharma, Advocate HON'BLE MR. JUSTICE SUNIL HALI, JUDGE Date: 16/11/2009 :J U D G M E N T :
Dispute with respect to the inheritance regarding land
measuring 8 acres comprised in Khasra nos. 103, 107, 109,
109 min, 110 and 111 situated at village Ghore Bains tehsil R.
S. Pura, has been engaging the parties in various courts. It is
contended that Ananti Devi allegedly made a Will of her
occupancy rights in favour of Karan Singh and Kanta Devi. In
this respect a civil suit came to be filed before the trial Court in
which decree was passed in favour of the petitioner. On an
appeal being filed before the learned District Judge, the decree
passed by the trial Court was set aside. Against this Civil
Second Appeal was filed in this Court. This Court vide order
passed on 22.05.2003 directed that operation of the impugned
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judgment and decree shall stay. The second appeal was,
however, dismissed for default on 30.09.2003. While passing
the order of dismissal, this Court had vacated the stay order
granted on 22.05.2003. The appeal was restored on
15.04.2004 to its original number subject to payment of Rs.
500/- as costs.
It is contended by the petitioner that after restoration of
the appeal, respondents dispossessed him, from the land in
question and it is under these circumstances the present
contempt petition has been filed.
Respondents in their objections have stated that one Raj
Singh had filed a suit before learned Munsiff R.S.Pura wherein
order of status quo was passed on 12.06.2003. On an
application filed by Raj Singh, plaintiff, direction was issued to
S.H.O. Police Station R. S. Pura to implement the order of
12.06.2003 and ensure that no obstruction is caused in
cultivating the suit land by the applicant. Against this order an
appeal is stated to have been preferred by the present
respondents before learned Ist Additional District Judge
Jammu, who, vide order dated 16.04.2004, set aside the orders
passed by learned Munsiff R. S. Pura. It is contended that Raj
Singh was acting as an intermediater for and on behalf of the
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petitioner in claiming to be in possession of the land for and on
their behalf.
The positive case of the respondents is that petitioner
was never in possession of the property nor was there any
order of stay passed by this Court.
I have the learned counsel for the parties.
It is contended by the petitioner that after the restoration
of the appeal the stay order was to automatically revive.
Learned counsel for the petitioner has contended that after
revival of the appeal, stay order becomes operational and
respondents could not have dispossessed her from the said
piece of land. He contends that respondents trespassed in the
land on 26.06.2004 but failed to dispossess the petitioner on
that date and subsequently they trespassed into land on
07.07.2004 by ploughing it with five tractors. He has placed
reliance on a judgment of Hon’ble Supreme Court, in Vareed
Jacob v. Sosamma Geevarghese & Ors, reported as AIR 2004
SC, 3992.
The stand of the respondents is enumerated herein
above. The power to proceed for non-compliance of an order of
injunction passed under Order 39 Rule 1 and 2 of the Code of
Civil procedure is under Rule 2 (a). The determination is
required to be obtained from the Court that the contemnor has
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violated the order of the Court and then appropriate orders are
required to be passed by the Court after such determination.
The present petitioner has not taken any steps to adduce
evidence to prove the alleged violation of the Court order by the
respondents. It is yet to be seen as to whether the present
petitioner was in actual possession of the property at the time
the order of stay was granted by the Court and consequently
when the appeal was restored to its original number. It is all
matter of proof. Petitioner was required to prove these facts
before seeking the punishment of the respondents for having
violated the Court order. Petitioner has failed to prove all these
allegations in this contempt petition.
Petitioner’s other contention that on revival of the appeal
the order of stay would get automatically revived, cannot be
accepted in the present case. The judgment relied upon by the
petitioner clearly makes a distinction that once the suit or
appeal is dismissed, there is automatic revival of the stay,
unless Court expressly or impliedly excludes its operation. It is
admitted in the present case that when the appeal was
dismissed for default, the interim order of stay passed by this
Court was also vacated. Once the order of stay was vacated,
the revival of appeal would not automatically mean that the stay
order has also been revived. I say so because stay order has
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been expressly vacated by the Court while dismissing the
appeal, which, on revival of appeal, would not automatically get
revived.
Viewed thus, I find no force in this petition, which is,
accordingly, dismissed.
(SUNIL HALI)
Judge
JAMMU:
16.11.2009
Anil Raina, Secy.
