IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CR 206 of 2007. Judgment Reserved on April 8, 2008. Date of decision April 10, 2008. Janak Raj ….Petitioner. Versus Pawan Kumar and another ….Respondents. Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. For the petitioner Mr. Praneet Gupta, Advocate. For the respondents: Mr. Ajay Sharma, Advocate. Dev Darshan Sud, J. This revision petition has been filed by the petitioner – defendant against the order passed by learned District Judge, Hamirpur, dismissing the appeal preferred by the petitioner herein against the order of the learned Civil Judge (Senior Division), Hamirpur in an application under Order 39 Rule 2-A of the Code of Civil Procedure preferred by the respondents herein. 1 Whether Reporters of Local Papers are allowed to see the judgment? Yes. - 2 - Brief facts which may be noticed are that Civil Suit No. 7/99, titled as Janak Raj etc. versus Pawan Kumar etc. was instituted by the respondents in which an order was passed on 6.1.1999 whereby both the parties were directed to maintain status quo. It was the case of the respondents herein that the petitioner had notice of this order, but despite this he did not allow the respondents to open the shutters and allow access to the passage. After consideration of the evidence led by both the parties including the evidence of PW-5, Shri R.S.Jaggi, who had proved on record his report Ex.PW-5/A and the local commissioner Shri B.N.Lakhanpal, PW-3, who proved Ex.PW-3/B, the learned Court held that the petitioner was guilty of disobeying the order. To reach this conclusion, the Court considered the report of the local commissioner(s) as also the evidence of the parties. Accordingly, the petitioner herein was sentenced to undergo simple imprisonment for a period of one month and his property was attached for violation of Court order. An appeal preferred by the petitioner herein proved unsuccessful. The entire factual position was - 3 - again reconsidered afresh by the learned District Judge. It was urged that the description of the suit property, subject matter of the injunction, was not established on record of the case. The second contention urged was that the two local commissioners PW-3 and PW-5 were not appointed in the main suit and were appointed in two other suits, namely civil suit No. 408 of 1998 and civil suit No. 9 of 1998 inter se between the same parties. The learned District Judge held that the objection regarding identification of the property was raised only in the grounds of appeal and not urged and proved as a fact before the trial Court. So far as the reports of the local commissioners are concerned, the learned Court considered them in detail holding that the subject matter of the two suits was the same as the suit out of which the present proceedings arise. This was not the sole ground on the basis of which disobedience of the decree was held to have been established. The evidence of the respondent Pawan Kumar (PW-1) was also evaluated and it was held as a fact that his evidence and the reports corroborated each other on all material particulars. - 4 - Learned counsel for the petitioners has urged a number of grounds in support of his contention that the judgment of both the Courts below is against facts on record. Learned counsel urges from the material on record that Court was wrong in holding disobedience of the injunction order passed by the learned trial Court. He reiterates that the two reports cannot be used for purposes of establishing disobedience of the ex parte order which had been passed in favour of the respondents. A perusal of the judgment of the learned trial Court shows that it was not only the two reports on which reliance was placed, but they were used as corroborative piece of evidence to support the testimony of the respondents herein. Moreover, both these witnesses were offered for cross examination and there was nothing in the evidence which could discredit their testimony. The learned District Judge has also considered this fact and affirmed the findings of the learned trial Court. On the question of identity of the property, the learned appellate Court rightly holds that the objection has been raised for the first time in - 5 - appeal and was not proved as a fact before the learned trial Court where it was accepted that the order of status quo related specifically to the property in dispute. I do not find any perversity in appreciation of evidence or any illegality in the order requiring interference under Section 115 of the Code of Civil Procedure. However, I find from the record that there is ample material on record to show that the petitioner is suffering from a heart ailment. His detention in civil prison, in these circumstances, would not be warranted. The order of imprisonment is, therefore, set aside. It would be open to the learned trial Court to enforce the order by adopting other measures in accordance with law. This revision petition is accordingly disposed of. There shall be no order as to costs. April 10, 2008 (PC). (Dev Darshan Sud), J.