S.N. Pathak, J.@mdashThis Miscellaneous Appeal is directed against the order dated 25.11.95 passed in Title Suit No. 4/95. The Plaintiffs of that suit are the Appellants before this Court. There was a petition filed by the Respondent-Defendant No. 4 in the lower court for injuncting the Appellants from carrying out any construction work in the disputed house. It was the case of the Defendant-Applicant No. 4 that she had purchased the suit house from one of the co-owners of the Plaintiff Ashok Kumar Sureka and she was living in the same along with her husband. However, the Appellants wanted to make construction over the roof of the Defendant Respondents'' house for which an application for granting injunction was preferred and an order of status quo was passed. However, in spite of that the Plaintiff-Appellants proceeded, to make construction and hence an application for punishing the Appellants under order 39 Rule 2A CPC was preferred in which the impugned order was passed.
2. In this appeal both sides were heard.
3. From the application filed in the lower court under Order 39 Rule 2A CPC it transpires that the Respondent Jyoti Saha was living in a house on the ground floor. However, paragraph 7 of the application filed in this miscellaneous appeal is clear to this effect. Paragraph 6 of the aforesaid application states that the Appellants had started construction of rooms on the 2nd floor of the roof surface of Defendant No. 4 of the suit. If the averment of paragraphs 6 and 7 of the application in the miscellaneous case interpreted, that will lead to the inference that Jyoti Saha had purchased residential portion of the house on the ground floor from one of the co-owners of the Appellants Before this Court. The first floor of this house would be on the roof of the ground floor, but Defendant No. 4 of the suit and Respondent before this Court Jyoti Saha was alleging construction on the 2nd floor of the house, in question. She was not claiming 2nd floor of the house. Therefore, it is not understandable why she sought an order of restraint upon the Appellants regarding any construction over the 2nd floor. The Pleader Commissioner who was appointed to report about the existing state of affairs had reported that there was construction of two rooms and latrine on the 2nd floor and that there was a construction of staircase leading from 2nd floor to the 3rd floor. There was a further construction of a staircase from 1st floor to the 2nd floor. The impugned order has not stated as to what exactly was the status quo order and whether it referred to any restraint upon the Appellants from making any construction on the 2nd floor or the 3rd floor of the house in question. So, by passing a sweeping and general order that the Appellants had violated order of the court will not do. The lower court by drafting an unnecessarily long and clumsy order passed an order of punishment under Order 39 Rule 2A against the Appellants without stating as to what was the position obtaining when the order of status quo was passed and what exactly was the order of status quo in a specific term. Unless this was stated in the impugned order, the court could not proceed to hold that the Appellants had violated the order of the court. Moreover, Order 39 Rule 2A has provided that in case of violation of the order passed under Order 39 Rule 1 and 2 the court could also attach the property of the of fenders and finalise the cost of the attached property in order to compensate the party who prayed for injunction after the stipulated period of attachment. Instead of proceeding under the first part of the punishment the lower court has punished the Appellants out of whom three are famales to go to the civil prison for two months. The court should the taken into consideration whether the females were liable for violation of the court''s order and whether they could legitimately be committed to civil prison. The court has failed to take these fads into consideration.
4. I am, therefore, of the opinion that the impugned order does not deserve to be allowed to stand.
5. In the result, this appeal is allowed and the impugned order is set aside.
