IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA COPC No. 117 of 2009 Date of decision: 07.10.2010 Prakash Chand ... Petitioner Versus Hardial Singh … Respondent Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 Yes. For the petitioner: Mr. Bhuvnesh Sharma, Advocate. For the respondent: Mr. Shivank Singh Panta, Advocate. V.K. Ahuja, J. (Oral): The present reference has been made by the learned Civil Judge (Senior Division), Kangra at Dharamshala, under Section 10 of the Contempt of Courts Act, for taking action against the respondent. 2. Briefly stated, the facts of the case are that the respondent filed a suit in the Court of learned Senior Sub Judge, Kangra and alongwith the suit, an application under Order 39 Rules 1 and 2 read with Section 151 C.P.C., was also filed, restraining the respondent from blocking, stopping free flow of Kuhl passing through the land of the applicant/plaintiff. An order of status quo was passed accordingly in CMA No. 71 of 2003. It was alleged that inspite of the order of the status quo, the respondent/plaintiff in the suit land had constructed a large residential house on the part of the suit 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 land inspite of the fact that he had given undertaking on 5.8.2003 that he would maintain the status quo regarding nature, construction and flow of water on the suit land till the final decision of the suit. 3. Thereafter, an application under Section 10 of the Contempt of Courts Act, 1971, was filed before the learned trial Court that action be taken against the plaintiff/respondent. The reply was filed by the respondent. Both the parties led evidence and the learned trial Court has made the present reference under Section 10 of the Contempt of Courts Act, for taking action accordingly. 4. I have heard the learned counsel for the parties on the question as to the maintainability of the petition under Section 10 of the Contempt of Courts Act. There is a specific provision under Order 39 Rule 2-A C.P.C. for taking action against a party for Contempt of Court for violating the orders passed on the application under Order 39 Rules 1 and 2 C.P.C. The provisions of Section 10 of the Contempt of Courts Act are being sought to be invoked by the applicant, though there is a specific remedy available to him under Order 39 Rule 2-A C.P.C. 5. My attention has been drawn to some decisions of the various High Courts on this point by the learned counsel for the respondent. My attention has been drawn to a decision of this Court in Dalip Singh Vs. Ram Nath and another, 2003 CRI. L.J. 2984, wherein this question was considered by a learned Single Judge of this Court and in Para-10 of the judgment, the following observations were made:- “10. The exercise of power under the Contempt of Courts Act is discretionary and is to be sparingly exercised. Generally, law of Contempt of Court should not be invoked 3 in cases of disobedience of the order of injunction since special provision and procedure therefor are contained under Rule 2A of the Code of Civil Procedure, itself.” 6. The learned Single Judge has also made reference to a judgment of Division Bench of Delhi High Court as well as judgment of Division Bench of Calcutta High Court and after referring to these decisions, it was finally concluded in Para-16 of the judgment as under:- “16. In the present case the petitioner, who had the alternative remedy under Rule 2-A of Order 39, Code of Civil Procedure, failed to avail such remedy. No reasons are forthcoming as to why he did not avail of such alternative remedy. Therefore, following the ratio and principle laid down in the above referred cases, with which, I am in full agreement, it is held that the exercise of discretionary powers under the Contempt of Courts Act, is not called for in the present case.” 7. On the same point, reliance was also placed by the learned counsel for the respondent on a decision of the learned Single Judge of Delhi High Court in Govind Sarda Vs. Sartaj Hotels Apartments & Villas Pvt. Ltd. & Ors., 130 (2006) Delhi Law Times 460, wherein also it was held that proper procedure under which the application is required to be made is Order 39 Rule 2-A C.P.C. and accordingly the petition was dismissed. 8. Reliance was also placed upon the decision in Rudraiah Vs. State of Karnataka and others, AIR 1982 Karnataka 182, wherein also it was held that the proper provision is under Order 39 Rule 2-A C.P.C. and contempt jurisdiction cannot be invoked. 4 9. No decision to the contrary was cited by the learned counsel for the petitioner. 10. Keeping in view the above decisions and specifically the decision of learned Single Judge wherein this question has been decided, I am of the opinion that the present reference petition is not maintainable as filed by the petitioner and is dismissed accordingly. However, the petitioner is at liberty to file appropriate application before the learned trial Court, if permitted by law. There is no order as to costs. ( V.K. Ahuja ), October 07 , 2010 Judge (BSS)