M.N. MASTANSAB Vs. ABDUL WAHABSAB

JUDGEMENT

(1.) THIS revision petition under Section 115 of the Code of Civil Procedure arises from the judgment and order dated 7th September, 1999 passed by Sri H.R. Deshpande, Additional Civil Judge (Senior Division), Bellary, in Miscellaneous Appeal No. 20 of 1997, whereby the lower appellate Court after considering the material placed on record and the relevant case law has opined that the order passed by the trial Court on I.A. No. IV filed under Order XXXIX, Rule 2(A) read with Section 151 of the Code of Civil Procedure was valid and justified and it did not suffer from any error of fact or law.

(2.) THE facts of the case in brief are: That in Original Suit bearing No. 466 of 1993, the trial Court granted exparte temporary injunction order against the Defendant (revision Petitioner herein) on 31.7.1993. The Defendant appeared before the Court through his Counsel on 8.7.1994 and filed the application under Order XXXIX, Rule 4 of the Code for vacating the ad -interim order of injunction which had been granted in favour of the Plaintiff - revision Petitioner. On that very day the Defendant filed the undertaking that he will not undertake and will not raise the constructions over the disputed property i.e., item No. 2 of the suit schedule property pending decision of the case. Later on, on 5.9.1994 the Defendant filed the application under Order 39, Rule 2(A) of the Code against the Plaintiff for having violated the undertaking given by him to the Court. The material documents were produced as the Plaintiff denied those allegations.

(3.) THE Plaintiff -revision Petitioner contended before the trial Court that he had completed the construction in the month of March 1993. Thus it became clear that the party who had undertaken not to proceed with the construction and had given undertaking to the Court that he would not make construction without taking permission of the Court took law in his own hands and did proceed with the construction in breach of the undertaking given to the Court. A person who had given undertaking to the Court and then commits breach of the undertaking then that party who deliberately proceeds to commit breach of the order and the undertaking given by him may held to have committed contempt. The Court below found that the Plaintiff had committed breach of the undertaking and the injunction order. The trial Court allowed the application filed by the Defendant under Order XXXIX, Rule 2 -A of the Code and accordingly the Plaintiff is hereby sentenced to commit to civil prison for a period of two months.