:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7237 OF 2007 Manohar J. Chhablani now known as Gyan Khasturi ..Petitioner Vs. Anil A. Balani ..Respondent Mr. J.S. Chandnani for petitioner. Mr. P.R.Arjunwadkar for respondent. CORAM: B.H. MARLAPALLE, J. CORAM: B.H. MARLAPALLE, J. CORAM: B.H. MARLAPALLE, J. Date : April 08, 2008. Date : April 08, 2008. Date : April 08, 2008. P.C.: P.C.: P.C.: 1. Heard the learned counsel for the respective parties. The petitioner is aggrieved by the order passed by the Lower Appellate Court in Civil Appeal No.1137 of 2006. By the said order dated 13/2/2007, while allowing the appeal, the learned Judge of the Lower Appellate court remanded the application filed under Order 39 Rule 2A of C.P.C. to be heard and decided afresh. Both the parties have been directed to appear before the trial court on 6/3/2007 and it was further directed that the suit as well as the :2: application at Exh.75 be heard together expeditiously. 2. Mr. Arjunwadkar the learned counsel for the respondent has relied upon a decision of this court in the case of Rampyaribai wd/o Sukhdeo Daga and ors. vs. Niladevi wd/o Narayandas Jakhotiya and ors. [2007 (4) Mh.L.J. 213] and even if we go by the said decision, the impugned order passed by the Lower Appellate Court is required to be corrected. An application filed under Order 39 Rule 2A of CPC cannot be decided merely by affidavits and the parties must lead evidence. If the plaintiff files an affidavit in support of the application, same could be treated as an affidavit in examination-in-chief and the defendant, alleged contemnor, has the liberty to cross-examine the plaintiff on the said affidavit and also to adduce his own evidence in rebuttal of the allegation that the interim injunction order was not violated and, therefore, the said application must be registered as a separate Misc. Proceeding. 3. Hence, it is directed that the trial court shall register the application at Exh.75 as a Misc. :3: Application separate from Regular Civil Suit No. 33 of 1986. Both the parties shall appear before the trial court in the said Misc.Application on 21/4/2008. The evidence of the parties shall be recorded as expeditiously as possible and in any case before 31/6/2008 and the said Misc. Application shall be decided in any case before 31/7/2008. 4. The petition is disposed off in terms of the above directions. (B.H. Marlapalle,J.) (B.H. Marlapalle,J.) (B.H. Marlapalle,J.)