Mca Contempt Ismailbhai (01)

8/2/2019 Mca Contempt Ismailbhai (01)

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

(DISTRICT:BANASKANTHA)

MISC. CIVIL APPLICATION NO. OF 2012

Ismailbhai Ishabbhai Machhaliya & Anr. - Applicants

Versus

Mamlatdarshri & Ors. - Respondents

INDEX

___________________________________________________

Sr. No. Annexures Particulars Page No.

___________________________________________________

1. Memo of the petition 1 to

Place:

Date : (Advocate for the applicants)


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LIST OF EVENTS

That the petitioner

The petitioners, being aggrieved by the approach of

, beg to prefer this petition.

Hence, this petition.

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

(DISTRICT: BANASKANTHA)

MISC. CIVIL APPLICATION NO. OF 2012

1. Ismailbhai Ishabbhai Machhaliya

Aged : Adult, Occupation: Agriculture

2. Adambhai Ishabbhai Machhaliya

Aged : Adult, Occupation: Agriculture

Both are residing at:-

Near Ghathaman Gae

Jampura, Taluka Palanpur

District Banaskantha .. Applicants

Versus

1.Mamlatdarshri

Office of Mamlatdar

Palanpur

2.Prahladbhai J. Brahmbhatt

Aged: Adult, Occupation: Retired Member

3.Yogin Prahladbhai Bahmbhatt

Aged Adult, Occupation: Service

4.Sidharth Prahladbhai Brahmbhatt

Aged Adult

No.2 to 4 are residing at:

Gobari Road

Opp: Lions Club

Palanpur

District Banaskantha .. Opponents

APPLICATION UNDER SECTION 2(b)

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read with Sections 10 and 12 of

the Contempt of Courts Act, 1971

- - - - - - - - - - - - - - -

TO,

THE HONOURABLE THE CHIEF JUSTICE AND THE

OTHER HONOURABLE JUDGES OF THE HIGH COURT

OF GUJARAT AT AHMEDABAD:

The humble petition of the

applications above named:-

MOST RESPECTFULLY SHEWETH THAT:-

1. The applicants are approaching this Honble

Court against the unlawful, illegal action on

the part of the opponents, who have committed

willful and deliberate disobedience of the

process of Court and also of the judgement and

decree passed by the $th Additional Sr. Civil

Judge, Palanpur in Regular Civil Suit No.40 of

2011.

2. That the opponents herein have entered into the

land of the applicants and by using JCB

Machine, have fallen down structures, where the

applications and their family members were

residing and have also done severe damage to

the standing crops of the applicants. The

opponents herein have illegally entered into

the land of the applicants and by illegal

actions, have tried to remove the applicants

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from their land and to take possession of the

land in question. Here, it is pertinent to

note that the trial Court, after taking into

consideration the pros and cons of the matter

and after dealing with the issue at large, has

decreed the suit in favour of the applicants.

In the said order, the Honble Court has

declared the applicants as the owners and

occupiers of the Revenue Survey No.813 paiki

Acr 1 08 gunthas of land by adverse

possession and at the same time has also

declared that the orders passed by the

Mamlatdar Dy. Collector and Sachiv are false,

illegal, and voidable. It is also ordered that

the defendant or his servant, agent, other

persons are restrained by permanent injunction

to not restrain the applicants of getting

income of the said land and also not to

dispossess the applicants and not to make any

obstruction. This judgement and order, and

decree were passed by the trail Court on

7.9.2010. A copies of the said judgement and

order, and decree dated 7.9.2010 are annexed

hereto and marked as Annexure-A colly to this

application.

FACTS

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3.The brief facts leading to the present

application are as under:-

3.1 The applicants preferred Regular Civil

Suit No.40/2001 before the Court of 4th

Additional Sr. Civil Judge, Palanpur,

District Banaskantha, praying for

permanent injunction and declaration

of the ownership by virtue of adverse

possession. It is the case of the

present applicants that their

forefather was in possession of the

land bearing Revenue Survey No.81,

paiki admeasuring Acr. 1, 8 gunthas

and after that the present applicants

are in possession of the land in

question. The land is an agricultural

land. In the said suit, it was

specific case of the applicants that

the applicants are in possession of

the land in question, since long and

the said land was in possession of

their ancestors. The applicants

further submit that in the said suit

documentary as well as oral evidence

were also advised. The written

arguments were also filed in the suit

and the learned Judge, after hearing

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the Advocates for the respective

parties, was pleased to decree the

suit in favour of the present

applicants by judgement and order

dated 7.9.2010. By virtue of the said

judgement and order, the present

applicants came to be declared as

owner by adverse possession of the

land in question.

3.2 The applicants further submit that the

application Exh. 174 dated 7.9.2010

was filed by the defendants asking for

suspension of the effect of the

judgement and order. The learned

Judge below the said application was

pleased to pass an order on 7.9.2010,

suspending the operation of the order

till 6.10.2010 on condition that the

defendant will execute a bond of

Rs.50,000/- and will maintain the

status-quo qua the land in question.

In furtherance of the said order, the

defendant had also executed the bond

below Exh. 176. Copies of the

Application Exh. 174 and order below

it as well as the Application Exh. 176

are annexed hereto and marked as

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Annexure-B colly.

3.3 The applicants submit that the

defendant of the suit preferred appeal

before the District Court being Appeal

No.36/10. The appeal came to be

admitted and in Exh.5 Application,

urgent show-cause notice was issued.

Here it is pertinent to note that no

stay order was granted by the District

Court below Exh. 5 Application at the

relevant point of time. Copies of the

memo of appeal as well as Exh. 5

Application are annexed hereto and

marked asAnnexure-C colly.


Exh.5 application filed in the appeal

came to be heard and vide order dated

6.1.2011, the learned Principal

District Judge, Banaskantha District,

Palanpur was pleased to stay the

operation of the decree passed by the

learned 4th Additional Sr. Civil Judge,

Palanpur in Regular Civil Suit

No.40/2001 on 7.9.2010. A copy of the

said order is annexed hereto and

marked as Annexure-D. Here it is

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pertinent to note that the judgement

and order passed by the trial Court in

Regular Civil Suit No.40/10 was not

stayed and only the operation of the

decree was stayed, meaning thereby the

position, which was prevailing had to

prevail and parties are bound by the

same.

3.5 The applicants further submit that all

of a sudden, on 12.3.2012, the

opponents herein came to the land in

question with JCB Machine and tried to

take over the possession of the land

in question by removing the structures

forcefully and had removed sheds,

walls, and had also made severe damage

to the standing crops of the

applicants. The applicants were

rendered shelter less and had to

suffer huge loss on account of the

conduct and illegal approach on the

part of the opponents herein. The

applicants further submits that on the

very day, the applicants made an

application to the District Collector

with regard to the illegal and

forceful action of the opponents

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herein. A copy of the said

application dated 12.3.2012 is annexed

hereto and marked asAnnexure-E.

3.6 The applicants further submit that

though the learned trial Court has

decreed the suit in favour of the

applicants, and the judgement and

order is not stayed by the appellate

Court, the opponents herein have

deliberately and willfully disobeyed

the said judgement and order and had

entered into the land of the

applicants forcefully so as to

dispossess the applicants. At this

stage, the applicants beg to draw the

attention of this Honble Court

towards the concluding order of the

learned trial Court. The Opponents

herein have overreached the process of

the Court and have willfully and

deliberately disobeyed the judgement

and order passed by the trial Court

dated 7.9.2010. The applicants have

also addressed the complaint to the

D.S.P., on 14.3.2012 with a copy of

the Police Inspector, Collector and

Mamlatdar. A copy of the said

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application dated 14.3.2012 is annexed

hereto and marked asAnnexure-F.

3.7 The applications most humbly and

respectfully submit that the

applicants are the law-abiding

citizens of India and are in

possession of the land in question

since long. Even the forefathers of

the applicants were possessing the

land in question since 1947-48. The

possession of the land in question was

with the forefathers of the applicants

and now with the applicants.


applicants were being harassed by the

Government Authorities time and again

and the applicants, having left with

no option, had to approach the trial

Court by filing Regular Civil Suit

No.40/01 praying for declaration as

owner by virtue of adverse possession

and also for permanent injunction.

3.9 The trial Court, after taking into

consideration all the relevant facts

and also the documentary as well as

the evidence, was pleased to decree

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the said suit in favour of the

applicants and has declared the

applicants the owners of the land in

question by adverse possession and

also declared the orders passed by

various authorities as false, illegal

and voidable. At the same time, the

trial Court has also ordered the

defendants of the suit or his servant,

agent and other persons, by permanent

injunction not to restrain the

applicants from getting the income of

the land in question and also not to

dispossess the applicants and no to

make any obstruction in the way of the

applicants. The judgement and order

passed by the trial Court is as clear

as day light. Here it is pertinent to

note that in appeal filed by the

defendant of the suit, below Exh. 5

application, the Honble District

Court was pleased to stay the

operation of the decree passed by the

learned trial Court till the disposal

of the appeal, meaning thereby the

judgement and order stands as it is

and only what is stayed is the

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operation of the decree. Here it is

pertinent to note that the applicants

are in possession of the land in

question since long and, therefore,

also the order of the Honble District

Court would be of no consequence and

there is no question of execution of

the decree on the said count. Thus,

even till date, the judgement and

order passed by the trial Court

subsists and holds the field. The

declaration made by the trial Court

are as clear as day light and the same

is in force till date. Herein it is

pertinent to note that the order below

Exh. 5 in appeal was passed on

6.1.2011 and till 12.3.2012, knowing

fully well that the order passed by

the trial Court holds the field the

opponents have not done anything and

all of a sudden on 12.3.2012 the

opponents came with JCB Machine and

other vehicles and forcefully entered

into the land of the applicants. The

Opponents destroyed the residential

shed of the applicants and also

removed the walls by illegal means.

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The Opponents have also damaged the

standing crops and have tried to

dispossess the applicants, who are in

lawful possession and ownership of the

land in question. Relevant

Photographs showing the same are

annexed hereto and marked asAnnexure-

G. The Opponents knowing fully well

the judgement and order passed by the

trial Court have willfully and

deliberately disobeyed the said

judgement and have committed the

contempt of the judgement and order

passed by the trial Court and have

also tried to overreach the process of

Court. The Opponents have no honour

towards the order passed by the trial

Court and in sheer disobedience of the

judgement and order passed by the

trial Court have acted in illegal

manner for some mala fide and oblique

purpose and removed the residential

shed, walls and also damaged the

standing crops of the applicants,

making the applicants to suffer

further financial loss. The Opponents

were knowing that the Court has

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restrained the Government authorities

to dispossess the applicants, have

acted in such a fashion to dispossess

the applicants from the land in

question and to remove the same from

the place in question. The

applicants, though requested the

opponents not to commit such act, the

opponents kept doing the same and by

such an act, committed the breach of

the judgement and order passed by the

trial Court. That the Government

authorities are after the applicants

and by any means them wanted to

dispossess the applicants from the

land in question. Such an act on the

part of the authorities of the

Government are impermissible in law

and such high-handed act and illegal

action cannot be tolerated in the

State of law where the law as well as

order passed by the lawful authority

prevails and stands at the hierarchy.

The opponents have committed the

contempt of process of Court and have

even not though it fit to take

permission of the appellate Court

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where the appeal is still pending.

That even the authorities have not

issued any notice to the applicants

before doing such illegal actions.

The opponents have entered into the

land of the applicants without prior

intimation and no notice or

communication was addressed to the

applicants before doing such illegal

act. That the Government authorities

and the opponents are forbidden by law

to commit such act especially when the

proceedings are pending before the

appellate Court and the judgement and

order passed by the learned Trial

Court still holds the field.

3.10 That the opponents have abused the

process of Court and have taken the

law in their hands. The opponents

have committed willful and deliberate

disobedience and have acted in illegal

manner, rendering the applicants

shelter less in the hard days. The

applicants, who have the judgement and

order in their favour have to suffer a

lot on account of the illegal action

and deeds of the opponents.

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3.11 The opponent No.1 is an authority, who

under the control of the State is not

expected to act any such high

handedness and oblique manner. The

opponents are required to be punished

under the Contempt of Courts Act for

such a high-handed and illegal action.

In the case of Vijaykumar v. DIG of

Police and Anr., reported in 1987

Criminal Law Journal 2018, Honble

High Court of Kerala has observed that

the essence of power to punish

contempt is no doubt in the larger

public interest of preventing any

unlawful interference with the

administration of justice and to

uphold the dignity and grandeur of the

law . The applicants further submit

that this Court as well as the Honble

Apex Court, in the case of Rama Narang

v Ramesh Narang and Anr., reported in

2007(1) GLR, 66 has made several

observations with regard to the

contempt proceedings. The application

further submits that similarly the

Honble High Court as well as the

Honble Apex Court, vide catena of

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decisions have made observations with

regard to the contempt proceedings and

have invoked the contempt jurisdiction

to punish the contemnor, who have

abused the process of Court and has

disobeyed the judgement and order

passed by the Court. The applicants

crave leave to refer to and rely upon

the various judgements at the time of

hearing of this application.


opponents have entered into the land

of the applicants without any

intimation and, therefore, the

opponents could not make any

representation to the higher

authorities.


applicants are approaching this

Honble Court within the period of

limitation.


opponents and the Government

authorities have not restored the

position, which was prevailing prior

to 12.3.2012 and have committed the

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contempt of the judegement and order

passed by the trial Court and also

have committed the abuse of process of

the Court.

3.15 The applicants submit that the

applicants who are rendered shelter

less are left with no option but to

approach this Honble Court by filing

this application.

3.16 The applicants have no other

alternative efficacious remedy, except

to approach this Honble Court by way

filing the present application.

3.17 The applications submit that the

applicants have not filed any other

any writ petition and/or application,

on the subject matter of the present

application, before this Hon'ble Court

or before any other Court, including

the Hon'ble Supreme Court of India,

save and except the one stated herein

above.

PRAYERS

4. The applicants, therefore, most humbly pray

that:-

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(A) This Honble Court may be pleased to

admit and allow this application.

(B) This Honble Court may be pleased to

initiate proceedings against the

opponents under the Contempt of Courts

Act, 1971 for committing willful and

deliberate contempt of the judgement

and order passed by the trial Court

and also for abuse of process of law

and further be pleased to punish the

opponents for the same.

(C) This Honble Court may be pleased to

direct the opponents to purge

themselves of the contempt by

reporting complete compliance of the

judgement and order of the trial Court

and to restore the position, which was

prevailing prior to 12.3.2012 at their

own cost and consequence.

(D) This Honble Court may be pleased to

issue necessary directions to the

opponents and/or appropriate

authorities to restore the position,

which was prevailing prior to

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12.3.2012 at their own cost and

consequence.

(E) Pending hearing and final disposal of

this application, this Honble Court

may be pleased to issue necessary

directions to the opponents and/or

appropriate authorities to restore the

position, which was prevailing prior

to 12.3.2012 at their own cost and

consequence.

(F) This Honble Court may be pleased to

grant any other and further reliefs, as

the nature and circumstances of the

present case may require.

AND FOR WHICH ACT OF KINDNESS AND JUSTICE THE

PETITIONER, AS IN DUTY BOUND, SHALL FOR EVER

PRAY.

PLACE: ( )DATE:__/3/2012 (ADVOCATE FOR APPLICANTS)

AFFIDAVIT

I,_Ismailbhai Isabbhai __________________________ ,

Aged ___ years, Adult, the applicant No.1 herein, do

hereby solemnly affirm and state on oath as under:

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5. That I have been read over and explained all

the averments and contentions made in the

present petition in Gujarati and the

statement of facts are as per my

instructions.

6. I state that what is stated in paragraphs No.

1 to ___ are true to my knowledge,

information and belief, and I believe the

same to be true and paragraphs ___ contains

prayer clause.

7. That the annexures appended to this petition

are true copies/typed copied/xerox copies of

their originals of which they purported to be

copies.

I state that no part of this affidavit is false and

nothing material is suppressed from this Hon'ble

Court.

SOLEMNLY AFFIRMED at Ahmedabad on this _______th

day of March, 2012.

(D E P O N E N T)

Explained and interpreted to the

Deponent by me:

(Advocate)

Identified by me:

Clerk to Advocate for the Applicants

Code No.

Mca Contempt Ismailbhai (01)

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