SB Civil Misc. Appeal No.1327/2008 Abdul Rashid Vs. Abdul Gaffar & Ors. 1 SB Civil Misc. Appeal No.1327/2008 Abdul Rashid Vs. Abdul Gaffar & Ors. DATE OF ORDER : - 18.12.2008 HON'BLE MR. PRAKASH TATIA, J. Mr. SP Sharma, for the appellant. Mr. Rajesh Joshi ] Mrs.Pramila Acharaya ],for the respondents. <><><> Heard learned counsel for the parties. The appellant has moved this application for preponing hearing of the appeal and according to learned counsel for the appellant in the trial court the civil original suit itself has been fixed for final arguments on 9.1.2009. According to learned counsel for the appellant in case the trial court will decide the suit before decision of the appeal then the main case of the appellant will prejudice. According to learned counsel for the appellant, the trial court has committed serious error of fact as well as error of law in rejecting the appellant's application filed under Order 39 Rule 2A CPC, which has been filed on violation of the interim order dated 26th April, 1999 by the SB Civil Misc. Appeal No.1327/2008 Abdul Rashid Vs. Abdul Gaffar & Ors. 2 respondent. It is submitted that on 26th April, 1999, the trial court ordered to maintain the status quo with respect to the properties mentioned in Schedule – Ka appended to the application and therefore, the defendants-respondents agreed that the properties mentioned in the Schedule are in existence and the allegation of the plaintiff is that the respondents have removed huge property out of the properties which is mentioned in the Schedule – Ka. It is submitted that on earlier occasion Commissioner was also appointed by the trial court and the trial court committed serious error of law by rejecting appellant's application for appointment of Commissioner, who could have brought on record the material facts on the basis of which, the trial court could have decided the application of the appellant filed under Order 39 Rule 2A CPC. Learned counsel for the appellant submitted that even today if Commissioner is appointed, the position will be more clear. Learned counsel for the appellant also submitted that the trial court observed that the appellant failed to produce any evidence with respect to the allegation SB Civil Misc. Appeal No.1327/2008 Abdul Rashid Vs. Abdul Gaffar & Ors. 3 of sale of the properties by the respondents and in spite of the fact that evidence could not have been in possession of the appellant. At the cost of repetition, learned counsel for the appellant submitted that, that position could have been made clear by obtaining report through Commissioner and it was the duty of the court itself to look into the facts and should have appointed the Commissioner to find out whether the properties mentioned by the appellant is available on site or not. I considered the submissions of learned counsel for the parties and perused the record also. The first contention of learned counsel for the appellant that decision of contempt petition may have effect on the merit of the suit is concerned, that is absolutely has no legal foundation. The violation of any interim order passed by the civil court may have its consequence against the contemnor, but cannot have any consequence on the merit of the main suit. The evidence in the civil suit is independent and that only can be looked into while deciding the civil suit by the court. The proceedings under Order 39 SB Civil Misc. Appeal No.1327/2008 Abdul Rashid Vs. Abdul Gaffar & Ors. 4 Rule 2A is ancillary proceedings and in that proceeding scope is limited to see whether the order has been violated by the other party or not. On the basis of decision on that issue appropriate relief of punishing the contemnor can be granted. Learned counsel for the appellant also submitted that in case in contempt proceedings, the court will reach to the conclusion that the property in question for which suit for partition has been filed is not in existence then the plaintiff will not get any relief in the suit and in case the court finds in the contempt proceedings under Order 39 Rule 2A CPC that the property was in existence then the court can pass the order for restoration of the property as well can take note of this fact while deciding the suit. That contention also has no effect over the merit of the main case because of the plain and simple reason that the existence of any property as well as his right over the property in dispute for which claim has been raised by the plaintiff or by defendant is required to be proved by their positive evidence and not by circumstance that in any misc. SB Civil Misc. Appeal No.1327/2008 Abdul Rashid Vs. Abdul Gaffar & Ors. 5 proceedings like in contempt proceedings for violation of an order, the other party was punished. Even if a property in existence which is subject matter in the suit for which interim order has been passed to maintain status quo then any party removes that property then that party may be punished in spite of fact that, that very party is owner of the property because of the reason that interim order merely restrains the party from over reaching the process of the court and dealing with the property. In this proceeding the court cannot decide the title to the property. However, if the allegation of committing contempt because of remove the property is not proved in contempt proceedings and ultimately, civil court after trail finds that the person who alleged contempt against other party is the owner of the property then the civil court can certainly and bound to pass appropriate decree, which may be just and proper in the facts and circumstances of the case. There may not be difficulty for passing decree for immovable property for which if evidence comes on record in the civil suit that the property was in existence and plaintiff had right over the SB Civil Misc. Appeal No.1327/2008 Abdul Rashid Vs. Abdul Gaffar & Ors. 6 property and defendant has dealt with the property during pendency of suit then the relief can be granted to the plaintiff with respect to the property. But when property in question is movable and if it is specific property and the property can be located, the relief of restoration of property can be granted. If the property is movable and lost and not traceable then proper decree can be passed to compensate the plaintiff. In view of the above reason, the contention of the learned counsel for the appellant that any decision on contempt petition by the trial court or by this Court may have any bearing on the merit of the civil original suit is rejected. So far as merit in the contempt petition is concerned, the interim order was passed on 26th April, 1999. the contempt petition has been submitted in the court in April, 2005. As per the facts mentioned in the para no.2 of the contempt petition itself according to the plaintiff-applicant himself that the respondents sold the marble of huge quantity of Rs. 8 lacs then a notice was given by the SB Civil Misc. Appeal No.1327/2008 Abdul Rashid Vs. Abdul Gaffar & Ors. 7 applicant-appellant to the respondents demanding 1/3rd of the cost of the said goods. Thereafter, it has been submitted that respondents brought back the marble of cost of Rs. 8 lac on the site and that was done in the month of May, 2003. How that could have been done by the respondents has not been explained because why the purchaser of the property worth Rs.8 lacs will return the property to seller-respondent for putting it on the site. In stead of taking any action at that time in the year 2003, the appellant submitted this contempt petition in the year 2005 with the allegation that on 27.2.2005 the applicant- appellant came to know that again respondents have removed the marble slabs, marble block and marble Kareji etc again of Rs. 8 lacs. According to appellant the said goods were sold when appellant was at Bombay. He also stated that Jeep No. RJ 21 C 941 was also sold. The pump set was removed and sold and certain fixed structures have been removed. In support of said facts, the appellant gave his statement and in cross-examination admitted that he had no knowledge to whom the goods of Rs. 8 lacs were SB Civil Misc. Appeal No.1327/2008 Abdul Rashid Vs. Abdul Gaffar & Ors. 8 sold, to whom jeep was sold, to whom pump set was sold and when those transactions affected. For taking action for breach of the order of the court , some more is needed than the vague allegation. The civil issue may be decided on preponderance of probabilities and may determine the civil rights, but whether to punish the contemnor mere preponderance of probabilities are not sufficient in all cases. In this case if the trial court decided not to proceed against the contemnor after appreciation of evidence of the parties and did not choose to punish the respondent, this Court is not inclined to interfere in the said order of the trial court dated 5.8.2008. So far as the appointment of the Commissioner is concerned, that is not meant for collecting evidence. The fact which could be proved by the parties are required to be proved by the parties itself. The plaintiff also had opportunity to obtain the Commissioner's report in the civil original suit by moving application under Order 26 Rule 9 CPC and that could have been allowed by the trial court only if the facts of the case would have warranted, but so far as, not SB Civil Misc. Appeal No.1327/2008 Abdul Rashid Vs. Abdul Gaffar & Ors. 9 appointing Commissioner by the trial court in this proceeding cannot have any material bearing because of the reason that substantially the petition itself is delayed because the first violation alleged was of the year 2003 and second is of the year 2005. In view of the above reason, I do not find any merit in this appeal and the same is hereby dismissed. However any observation made in this order or order passed by the trial court dated 5.8.2008 shall not have any bearing on the merit of the suit and the trial court may decide the suit uninfluenced by any of the observation made by this Court. (PRAKASH TATIA), J. c.p.goyal/-