RAGHUVIR HARISCHANDRA SALGAONKAR Vs. SARASWATI PUNDALIK SALGAONKAR

JUDGEMENT

(1.) The respondent has instituted a suit against the applicant and two others for permanent injunction restraining the applicant from carrying out any construction on the suit land which, according to her, is jointly owned by her and the applicant. Her case was that the applicant was not entitled to carry on any construction on the said land without her consent. This suit was instituted on 10-4-1980. On the same day the respondent-plaintiff also filed an application for ex parte temporary injunction, supported by affidavits sworn by herself and two witnesses. On the same day learned trial Judge visited the spot and made a note of what he had seen. He recorded that in the house which the applicant was constructing, tiles in the front portion had protruded 6 inches from the front wall and on the back side roof portion admeasuring 2x2 meters approximately was not covered with tiles. But his order passed again on the same day i. e. 10-4-1980, the learned trial Judge granted ex parte temporary injunction restraining the applicant from certain limits and from covering the back side with tiles which, as said above, had not been so covered. In pursuance of the show cause notice issued to the applicant he appeared in the suit and resisted the application for temporary injunction. He also adduced some oral and documentary evidence. After hearing the parties the learned trial Judge under his order passed on 28-5-1980 confirmed the ex parte temporary injunction granted earlier.

(2.) On 16-6-1980 the respondent by her application moved the trial court to take action against the applicant under Rule 2A of Order 39 of the Civil P. C. (hereinafter referred to as 'the Code') for disobeying the temporary injunction. It was alleged in this application that in spite of the injunction the applicant on 1-6-1980 had covered the front root with palm leaves as also side walls and that he had covered the roof which was open with tin-sheets. The applicant resisted this application. The learned trial Judge again visited the spot on 26-71980 and recorded his notes. He noted that there was extension to the front portion covering the same with tin-sheet, palm leaves and wooden rafters and bamboos and the back portion which was open since 10-4-1980 had been covered with palm leaves. Thereafter by his order passed on 29-7-1980 after hearing the parties and taking into consideration unqualified apology which was offered by the applicant he desisted from taking any action and directed the applicant to remove all palm leaves, tin-sheets as well as wooden rafters and ribs within 24 hours failing which he would have no alternative but to send the applicant to jail for disobedience of the order. On the next day i. e. on 30-71980 the applicant stated in writing that he had complied with the order of the Court and further requested the Court and further requested the Court to permit him to cover the front roof with palm leaves and the rear roof with tin- sheets. The respondent opposed this request and submitted that the applicant had not only not removed the material which he was ordered to do but had also covered the roof with more tiles and tin-sheets. By an application made on 6-81980 the respondent requested the Court to inspect the suit house for the purpose of verification of her said allegations, "without notice to the defendant as otherwise the defendant may play hide and seek game. The learned trial Judge was pleaded to grant this request and forthwith inspected the spot for the third time on the same day i. e. on 6-8-1980. He noted that the portion of the roof which on 10-4-1980 had been left uncovered and which had been covered with palm leaves on or before 26-7-1980, had then been covered with tiles. He, however, noticed that 8 rows of tiles were still not there in an, area of roughly admeasuring 2 1/2 meters and that area was covered partly with palm leaves and partly by plastic. The learned Judge noted that but for this, the order of the Court had been complied with. He also noticed that the front portion of the house was covered with palm leaves which was not there previously. On 26-8-1981, by her application the respondent moved the Court again for taking action against the applicant under the said Rule.

(3.) On 12-9-1980 some oral evidence was adduced by the parties. The respondent examined her son-in-law namely, Vithal Naik and on his part the applicant examined two witnesses.