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MCA/670/2011 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.CIVIL
APPLICATION - FOR CONTEMPT No. 670 of 2011
In
MISC.CIVIL
APPLICATION No. 1950 of 2009
In
SPECIAL CIVIL APPLICATION No. 12113 of 2006
=========================================================
RAMESHBHAI
DAJIBHAI PATEL & 1 - Applicant(s)
Versus
LALLUBHAI
RAMABHAI PATEL & 5 - Opponent(s)
=========================================================
Appearance :
MR
UTPAL M PANCHAL for
Applicant(s) : 1 - 2.
DELETED for Opponent(s) : 1,
MR NV GANDHI
for Opponent(s) : 2 -
6.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE R.M.CHHAYA
Date
: 09/11/2011
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE JAYANT PATEL)
The
basis of the present proceeding is the noncompliance to the order
dated 06.07.2010 passed by this Court earlier in MCA No.1950/09,
whereby this Court had issued the following directions –
The
repairing and construction as declared in paras 5 & 6 of the
affidavit referred hereinabove shall be removed within one month by
the respondents and the report shall be submitted before this Court
for the compliance within two weeks thereafter to the Registrar of
this Court.
No
additional equity shall be claimed by any of the respondents in the
suit pending before the Trial Court on the ground that any
construction was made by them pending the suit, may be prior to
District Court granting injunction or even thereafter.
The
respondents shall not make any new construction as per the
undertaking given before this Court referred to in para 6 of the
aforesaid affidavit.
The
respondents shall pay Rs.5,000/- by way of cost to the petitioners
within 20 days from today and the amount shall be sent by Money
Order or Demand Draft to the petitioners.
The
undertaking shall also be filed by the respondents Nos. 2,3,4,5 and
6 within two weeks from today to comply with the earlier directions.
Upon
filing of the undertaking and upon compliance to the aforesaid
directions, the further action would not be required to be taken
under the Contempt of Court Act.”
We
may also state that since there is a reference to the declaration
made in the affidavit, which came to be reproduced in the above
referred order at para 7, the same read as under –
“7. Today,
the affidavit has been filed by one Vajirbhai Ramabhai Patel in
response to the aforesaid order and it has been inter alia stated at
paras 5, 6 & 7 as under:
“5.
We state that after the order passed by this Hon’ble Court, the
opponent No.2 herein i.e. Arvindbhai Lallubhai Patel has repaired the
slab only covering otta of his house. The opponent no.3 herein i.e.
Natubhai Lallubhai Patel had also repaired the slabs of two rooms of
his house as the said slabs were on verge of falling down and
therefore some cementing work was done on them to protect the house
members from heavy rain in monsoon season. The opponent no.4 herein
Vajirbhai Ramabhai Patel has installed door and window frames and at
present because of the open house he is residing at a place where the
cattles are kept as there is no roof on his house. The opponent no.5
herein i.e. Amratbhai Ramabhai Patel has not made any repairs
whatsoever. The opponent no.6 herein Shantaben Ramabhai Patel has
also not made any repairs and she is residing with Natubhai Lallubhai
Patel.
6.
We undertake to abide the orders of this Hon’ble Court to remove the
said repairs as for the reasons stated hereinabove the undertaking
could not be filed before this Hon’ble Court as directed. We further
undertake not to put any kind of construction on the suit properties.
7. We
pray to this Hon’ble Court to take sympathetic view in the present
matter.”
We
have heard Mr.Panchal for the petitioners and Mr.Gandhi for the
respondents.
After
the process was issued, further directions were given in the present
proceeding and it was undertaken on behalf of the concerned parties,
viz., Arvindbhai, Natubhai and Vajirbhai, respondents no.2, 3 and 4
that they shall comply with the directions. Thereafter, the
photographs are produced which go to show that the slab over the Ota
has been removed by Arvindbhai, respondent no.2. The slab over the
two rooms have been removed by Natubhai, respondent no.3 and so far
as respondent no.4 Vajirbhai is concerned, he has removed all
constructions. The undertakings have been filed which are part of
the record of MCA No.1950/09. The amount of cost as ordered by
the Court has also been paid.
Under
these circumstances, we find that the earlier order date 06.07.2010
passed by this Court has been complied with, but since there was no
compliance prior to the initiation of the contempt proceeding by
this Court, appropriate cost also deserves to be imposed. We would
have further recorded the reasons, however, Mr.Gandhi for the
respondent agreed to abide by the same. Therefore, considering the
facts and circumstances, it is directed that the respondent shall
pay the cost of Rs.5,000/- of the present litigation to the
petitioner which will be sent by DD/M.O. within a period of four
weeks from today to the petitioners.
Mr.Panchal,
learned counsel appearing for the petitioners attempted to contend
that the earlier order which was passed by the District Court of
maintenance of status quo and thereafter, the further construction
made would also constitute breach of the order and therefore, this
Court may consider the said aspects.
In
our view, the said aspect did exist at the time when this Court
passed the order on 06.07.2010 and at the relevant point of time,
vide direction at para 9(b) it has also been observed that no
additional equity shall be claimed. Under these circumstances, the
concerned court which is seized with the proceeding of the suit
shall be in a position to pass effective order and the construction
made if any after the order passed by the District Court would not
operate as a bar in the event the plaintiff succeeds in the suit.
As the clarification is already made, no further clarification
deserves to be made.
In
view of the above, as the further cause of the petitioner would no
more survive, the petition shall stand disposed of accordingly.
It
would be open to the either side to move to the concerned court for
early hearing of the Suit.
(JAYANT
PATEL, J.)
(R.M.CHHAYA,
J.)
*bjoy
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