RAJAM BABU GULAM Vs. SUNDERBEN ANANDJI GALA

JUDGEMENT

(1.) This CRA under Sec. 115 of Code of Civil Procedure is filed by the original defendant against the respondent-plaintiffs to challenge the legality and validity of the order passed in Civil Misc. Appeal No. 39/94 by the Extra Asst. Judge, Kutch-Bhuj.

(2.) There is no dispute about the fact that the present respondents (original plaintiffs) instituted RCS No. 30/89 in the Court of Civil Judge (JD), Mandra and prayed for temporary injunction restraining the petitioner- defendant from in any way interfering with the work of construction of wall in question which was then demolished and which was to be reconstructed. It appears that the trial Court after "hearing the parties, and after taking into consideration the pleadings of the parties granted temporary injunction as prayed for according to which the respondent-plaintiffs were permitted to put up construction in house bearing Gram Panchayat No. 6/105 at Vadala and the petitioner-defendant was restrained from, in anyway, interfering with such work including the work of demolition of wall and reconstruction of wall. Said injunction has become final.

(3.) It appears that consistent with the said injunction respondent- plaintiff already reconstructed the whole building including the disputed wall and the plaster of the whole building excepting the plastering on the Northern side of the wall in question is allowed. Admittedly, Northern side of the wall in dispute is within the premises of the petitioner-defendant. For the purpose of plastering of said wall on the Northern side respondent-plaintiffs are required to enter into the premises of the petitioner-defendant and then only the Northern side portion of the wall in question could be plastered. The petitioner-defendant did not permit the entry to the respondent-plaintiffs for the said purpose and, therefore, application was given to the trial Court under Order 39 Rule 2A of Code of Civil Procedure read with Sec. 151 of Code of Civil Procedure for permitting the plaintiffs to enter into the premises of the petitioner-defendant for the purpose of carrying out plastering work on the Northern side of the wall or in the alternative it was prayed that action should be taken for contempt of court against the petitioner for not complying with the order of injunction initially granted by the trial Court.