1 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CONTEMPT PETITION NO. 138 OF 2008 Popat Namdev Nale ... Petitioner. Vs. Namdev Raoba Nale & Ors. . … Respondents. ­­­­ Mr. Rawal i/b Mr.P.B. Shah, for the Petitioner. Mr. Rahul Kate, for the Respondents. ..... CORAM: S.C.DHARMADHIKARI,J. DATE : 28 th APRIL, 2010. P.C. 1. This Contempt Petition alleges that during the pendency of the second Appeal restrain Order was issued against the Respondents to the second Appeal from carrying on any construction activity including digging and construing up Well on the suit property. 2. It is alleged that the second appeal is pending and during the hearing of the same noticing activity at site Civil Application was moved, in which the learned Single Judge of this Court granted subject injunction. It is alleged that despite an injunction Order being passed in the presence of the Advocates appearing for the parties, construction activity continued at site. The Order was duly communicated yet construction activity is being carried on at site. 2 3. First Respondent is party to the second Appeal has filed his affidavit and has pointed on oath that it is true that the subjection injunction Order was passed but same is not breached or violated deliberately and willfully by Respondent No.1. In as much as there is no case of civil contempt against him. He states that the property in which the construction activities are being carried on allegedly is not in his possession, but same is in the possession of sons of his second wife Smt.Ratnabai. Sons of second wife are not parties to the litigation. 4. That the Order is allegedly violated by persons who are not parties to the litigation is admitted by the Petitioners’ Advocate and he has submitted that the first Respondent being their father has control over their activities and therefore he could have prevented the breach. I am afraid that such plea cannot be raised while alleging civil contempt. In this case, the breach or violation of the Order is allegedly committed by persons who are not parties to the litigation. 5. The remedy available to the Petitioners to stop such activities lies elsewhere and contempt jurisdiction is not available to him. The Contempt Petition is misconceived and is dismissed accordingly. (S. C. DHARMADHIKARI, J.)