IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 154 of 2010 Date of decision: 24.11.2010 Battan Singh …Petitioner. Versus Rikhi Ram …Respondent. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 No. For the petitioner: Mr. Anup Rattan, Advocate. For the respondent: Mr. Ajay Sharma, Advocate. Deepak Gupta, J. (Oral) 1. By means of this petition the petitioner has challenged the order of the learned District Judge, Kangra at Dharamshala in Civil Misc. Appeal No. 33 of 2008 decided on 8.1.2010 whereby he dismissed the appeal filed by the petitioner (here- in-after referred to as the defendant) and upheld the order of the learned Civil Judge (Sr. Division), Nurpur directing the defendant to be detained in civil imprisonment for a period of five days for willfully having violated the stay order granted by the trial Court on 10.08.2005. 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. 2 2. The undisputed facts are that the parties are real brothers. Respondent Rikhi Ram (hereinafter referred to as the plaintiff) filed a suit in the Court of Civil Judge (Sr. Division), Nurpur, District Kangra, praying that the defendant Battan Singh is raising construction on land jointly owned by the parties and he be restrained from doing so. On 10.08.2005 the learned trial Court granted an order of status quo and this order was passed in the presence of Battan Singh and his counsel. Thereafter an application under Order 39 Rule 2A was filed in which it was alleged that despite order dated 10.8.2005 the defendant had raised construction and had constructed a kitchen on this land and had therefore, violated the order of this Court. The stand of the respondent was that after this order of status quo was passed a compromise was arrived at between the parties on 17.08.2005. By means of this compromise the defendant was permitted to raise construction and therefore, there was no willful disobedience of the stay order granted by the learned trial Court. 3. Both the parties led evidence. Rikhi Ram, plaintiff did not deny the execution of the 3 agreement dated 17.08.2005 and also admitted that in terms of this agreement the defendant had been authorized to raise construction on his own land. He, however, stated that after the stay order was passed on 10.08.2005 the defendant had raised construction on 11.08.2005. The defendant in his statement denied that he had raised such construction but in cross-examination he admitted the suggestion put to him on behalf of the plaintiff that on 11.08.2005 he had laid the foundation and constructed a kitchen. In the next breath he stated that the construction was raised after the decision of the Panchayat. He first denied that he raised any construction after issuance of the stay order but candidly admitted that he had laid the foundation. Accepting the statement of the defendant to be the gospel truth then also it is apparent that after the stay order was passed he had laid the foundation. Once the order of status quo was passed he was not expected to do any work on the site. 4. However, one cannot loose sight of the fact that on 17.8.2005 the parties did enter into a compromise and in this compromise plaintiff Rikhi 4 Ram clearly agreed that despite the stay order he had obtained the defendant would be entitled to raise construction in his part of the land. In this agreement it was also stated that the stay order which had been obtained from Court be deemed to have been cancelled. The parties should in fact have approached the learned Court and got the stay order vacated in terms of the compromise. This would have been a much better method to be followed. 5. Order 39 Rule 2A provides for action to be taken against any person who disobeys any order passed by a Court under Order 39 Rule 1 and 2. In this case, the parties who are brothers soon after the initiation of the suit settled matter outside the Court. The defendant at the relevant time was 70 years old. The parties have settled the matter whereby the defendant has been permitted to raise construction on the said land. Therefore, in my opinion, it would be an exercise in futility and in fact sending the petitioner to jail would be against the spirit of the compromise and may spoil the relationships between the brothers even further. At the same time, this Court cannot condone the 5 disobedience of the orders of the Court and the petitioner must suffer for having disobeyed the orders. Under Order 39 Rule 2A either the property of the person guilty can be attached or the person can be detained in civil prison. In the present case, both the modes are impracticable. There is no idea of attaching the property since the stay order is no longer binding in view of the compromise affected between the parties and as observed above sending the petitioner to jail would serve no purpose. Therefore, using the inherent powers of the Court, I direct that the petitioner- defendant shall pay compensation of Rs.5,000/- to the plaintiff-respondent. This compensation be deposited in the trial Court within six weeks from today. In case, he fails to deposit the compensation of Rs.5,000/- then this petition shall be deemed to have been dismissed and petitioner- defendant shall have to undergo the sentence imposed upon him. 24th November, 2010 (Deepak Gupta) ™ Judge