JUDGMENT :

SUDESH BANSAL, J.

In S.B. Civil Contempt Petition No. 558/2015:

1. Instant contempt petition has been filed alleging disobedience of stay order dated 28.05.2013 passed in S.B. Civil First Appeal No. 645/2009.

2. Learned counsel for petitioner submits that the petitioner filed civil suit for possession which has been decreed in his favour vide judgment dated 22.09.2009 and there against the non-applicant-Govind has filed first appeal. During course of first appeal, this Court passed the following order, protecting the right of the applicant to use the property in question as also to raise construction subject to certain observations, without affecting the rights of parties to be decided in the first appeal.

3. The order dated 28.05.2013 reads as under:

“The stay petition has already been dismissed in the present case by order dated 28.02.2012. The application has been filed by the respondent contending that the appellant even after dismissal of the stay petition is creating obstruction in the use of the property though the suit was decreed in favour of the respondent.

It is therefore ordered that the appellant shall not interfere with the peaceful possession and use of the property of the plaintiff-respondent. The plaintiff-respondent would be free to raise any construction, but if eventually the appeal is decreed in favour of appellant, he will not be entitled to claim any equity and he may have to part with the possession of the land with the constructed building etc. and would not be entitled to claim any cost of construction from the defendant-appellant.

With that direction, the application is disposed of.”

4. It appears from the record that petitioner before filing the present contempt petition had also filed S.B. Civil Contempt Petition No. 528/2014, which was dismissed by this Court vide order dated 04.12.2014. The petitioner has also approached to the civil court by filing a Civil Suit No. 16/2010 against the non-applicant and the civil court passed injunction order dated 11.04.2014 in favour of petitioner. In the civil suit, the specific issue in relation to the property in question as to whether the defendants (non-applicant herein) creates hindrance in use and occupation of the disputed plot to the plaintiff was framed. Learned counsel for petitioner submits that after dismissal of first contempt petition, the non-applicant continued to create hindrance/disturbance in raising construction as also in use of property by petitioner, therefore, he filed criminal complaint on which Police registered a case under Section 107/116 Cr.P.C. against the non-applicant. In that view of matter, it is clear that non-applicant has flouted the stay order dated 28.05.2013 and accordingly be punished.

5. The non-applicant has filed reply to contempt petition and submits that he has not flouted stay order dated 28.05.2013 in any manner. He further submits that after dismissal of first contempt petition, this second contempt petition cannot be entertained. He further submits that applicant himself approached to the civil court and filed civil suit, wherein specific issue was framed, but later on applicant has not pursued the said civil suit. He contends that he is not guilty for disobedience of stay order dated 28.05.2013 in any manner.

6. Heard counsel for both the parties.

7. It is not in dispute that first contempt petition filed by applicant has been dismissed vide order dated 04.12.2014. Learned counsel for applicant placed reliance on proceedings registered by Police under Section 107/116 Cr.P.C. against non-applicant to draw a presumption that the non-applicant has flouted stay order dated 28.05.2013. The material which has been placed on record, is not sufficient to hold and conclude that the non-applicant has violated the stay order dated 28.05.2013 more particularly when he has filed reply that he is abiding by the same and following the same. It is settled proposition of law that the jurisdiction of contempt can be exercised on