IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 371 OF 2009 MRS. CELINA VELHO E ALMEIDA ... Petitioner Versus JOSE ALEIXO DE VIEIRA VELHO ... Respondent Mr. C. Pereira, Senior Advocate with Mr. Somnath Karpe, Advocate for the Petitioner. Mr. Agnelo Diniz, Advocate for the Respondent. Coram:- R. M. SAVANT, J. Date:- 6th November, 2009 P.C. This petition is filed challenging the Order dated 30/12/2008 passed by the learned Civil Judge Senior Division, Panaji by which Order, the application filed by the petitioner, invoking Order 39 Rule 2A of the Civil Procedure Code came to be dismissed. 2. The petitioner is the original plaintiff who has filed, Special Civil Suit No. 98/94/A for permanent injunction in respect of 2 Power of Attorneys dated 13/05/1984 and 25/04/1987 and for restraining the respondent/defendant in any way alienating or encumbering the properties of the plaintiff's parents. The properties in respect of which the suit has been filed have not been mentioned in prayer clause. However, some of the properties have been mentioned in paras 6 and 9 of the plaint. 3. In the said suit, Order came to be passed on 21/01/1995 directing the defendant not to disturb status quo existing as on date of the institution of the suit. The matter was carried in Appeal by the respondent being Appeal From Order No. 29/1995, wherein a learned single Judge of this Court (D. R. Dhanuka J.) as he then was, has passed an Order on 30/06/1995 observing that it was not necessary to set aside the order of injunction altogether and modified the said order that the defendant shall not disturb the status quo in respect of the suit properties as on that day, pending further orders. 4. The plaintiff, became aware of the mortgage executed by the defendant herein, in favour of Mapusa Urban Co-Operative Bank Ltd. in respect of plot Nos. 24, 26, 28 and 29 of the property known as "Predio Palmaar Chincholem E Figueiredo" and filed an application under Order 39 Rule 2A of Civil Procedure Code, inter alia, contending that there was breach of injunction order that was operating, against the defendant as modified by this Court by Order dated 30/06/1995. 5. The ground mentioned in the said application was that by mortgaging the suit properties the respondent herein had flouted the said injunction order which was operating in the said suit. The said application was tried by the learned Civil Judge Senior Division, "B" Court, Panaji. 6. The plaintiff examined herself and also produced the Deed of Mortgage. The Trial Court, on the basis of material before it, came to a conclusion that since the survey number of the property which is the subject-matter of the application was not covered in the plaint and therefore held that there was no restraint and as such, the defendant cannot be held guilty of breach of the order of injunction. 7. As indicated above, some of the properties have been specified in para 9 of the plaint, is not covered, admittedly the property which is a subject matter of the mortgage deed. It would be significant to note that in the prayer clause a general prayer is made that the defendant should be restrained from dealing with the properties of the parents. 8. The learned Senior Counsel for the petitioner contended that the Order of status quo covered all the properties of the parents, as substantial relief is sought in the suit was for restraining the defendant from acting in furtherance of the power of attorney of his parents. 9. The learned Senior Counsel submitted that since the defendant has not denied that mortgaged properties are not the properties of the parents, there is a clear breach and violation of the order of status quo passed in the said suit. 10. It is well settled that the proceedings under Section 39 Rule 2A, read with Rule 11A of the Civil Procedure Code are akin to proceedings for contempt and therefore there has to be strict proof of pleadings and the contempt has to be proved beyond reasonable doubt. A reference could be made to the judgment of the Hon'ble Supreme Court Cases 739, in the case of Mrityunjoy Das and Another Versus Sayed Hasibur Rahaman and Others, where the burden and standard of proof required to bring home a charge of contempt is mentioned. 11. In fact, in the instant case the properties which have been mortgaged i.e said 4 plots, the survey numbers are not mentioned in para 9 of the plaint, and do not find place in the prayer clause. Hence, whether the order of status quo passed in the suit would be applicable or not is itself in doubt. 12. The instant case does not satisfy the test laid down in a catena of judgments of the Apex Court that contempt has to be proved beyond reasonable doubt. In that view of the matter, the impugned Order passed by the Trial Court does not suffer from any legal infirmity for this Court to interfere in its writ jurisdiction. 13. The Writ Petition is accordingly dismissed. R. M. SAVANT, J. EV