IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 101 of 2008. Judgment reserved on: 12.11.2008. Date of Decision: November 18, 2008. Raj Kumar Verma. …….. Petitioner. Versus Smt. Shivani Verma and another. …….. Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1?Yes. For the Petitioner : Mr. Dushyant Dadhwal, Advocate. For the respondents : Mr. M.S. Thakur, Advocate with Mr.Inderjeet Singh Narwal, Advocate. ____________________________________________________ Surinder Singh, J. In this petition, preferred under Article 227 of the Constitution of India, the petitioner has assailed the judgment of the learned District Judge, passed in CMA No.24-S/14 of 2007, dated 21.2.2008, affirming the order of dismissal passed by the learned trial court in case No.105/6 of 2004/ 2002 decided on 30.4.2007, whereby the application under Section 39 Rule 2-A of the Code of Civil Procedure moved by the petitioner against the respondent was dismissed. The brief facts can be summoned up thus. The petitioner herein was a plaintiff. He had filed the suit against the respondents, seeking the relief of permanent prohibitory injunction, restraining the respondents from Whether reporters of the Local papers are allowed to see the judgment? Yes. - 2 - causing any interference in his peaceful possession of the land comprised in Khewat Khatauni No.274/324, bearing Khasra No.1007/601, measuring 92 square meters, situated at Mauja Jawahar Park, Tehsil and District Solan, H.P. An application under Order 39 Rules 1 and 2 of the Code of Civil Procedure was also filed for issuance of the exparte ad-interim injunction. Vide order dated 19.1.2002, the respondents were restrained by way of exparte ad-interim injunction from causing any damage, cutting and removing any tree from the suit land till further orders and they were also directed to file their objections, if any, on or before 25.2.2002. It was contended in the application that the said orders were communicated to the respondents by ordinary and court process. The respondents became fully aware of it, but they did not care for the said orders and deliberately defied the said order and continued with the construction at the site. Thus, an application under Order 39 Rule 2-A of the CPC was filed against them, which was dismissed by the learned trial court and affirmed in appeal by the District Judge that the petitioner herein had failed to prove the case against the respondent. The order which is alleged to have been defied was not placed on record and there was no material to hold its defiance. Shri Dushyant Dadhwal, learned counsel for the petitioner has vehemently argued that the photocopy of - 3 - the order was already on the record of the learned trial court alongwith the file of the suit and application, thus findings of the courts below are contrary to the facts, there was defiance of the stay order therefore, the respondents were required to be punished in accordance with law. I have perused the record of the trial court in respect of CMA No.105/6 of 2004/2002. The respondents have denied having defied the impugned orders. Legally, in case of the defiance of orders or contempt, the onus to prove is heavily laid on the petitioner. It is required to be proved beyond doubt like a criminal case. Further it is also equally settled that the evidence/ documents of one case cannot be gone into the other case. Thus in the instant case, the petitioner has to stand at his own legs and is legally bound to prove the issuance of orders breached, its service or knowledge to the respondents and finally, its defiance in order to bring home the guilt of the respondents under Order 39 Rule 2-A of the CPC. The parties were aware of their respective case and adduced their evidence. Petitioner Raj Kumar did not examine himself and only placed on record his affidavit, which was not even tendered in his examination, whereas, respondents examined Vijay Kumar. He also tendered in his statement his affidavit Ex.RW1/A denying the allegations to this effect he was cross-examined on behalf of the petitioner. Though the - 4 - photo-copy of the exparte ad-interim injunction was on record, but neither it is certified copy nor its service on the respondents was proved by the petitioner. In totality of circumstance, the alleged defiance of the orders aforesaid stand not proved on record. Further the evidence on record shows that plots of both the parties to the lis are adjoining to each other and there appears to be boundary dispute. Since the petitioner has failed to prove his case by leading cogent evidence in accordance with law, the orders passed by the learned trial court and upheld in appeal cannot be faulted at all. Hence, the petitioner has failed to make out a case for its interference by this court, accordingly, the petition is dismissed. Send down the records. November 18, 2008. (Surinder Singh) ( Pds ) Judge.