Maintainability of appeal filed against dismissal of application for punishing contemnor.

Dr. A. S. ANAND, C.J. :-

This appeal under section 19(1) of the Contempt of Courts Act, 1971 (hereinafter referred to as the Act), clause 15 of the Letters Patent and Rule 10 of the High, Court Rules is directed against the order of dismissal of the Contempt Application No. 170 of 1989 by the learned trial Judge, vide order dated 23rd September, 1989. It was held that the appellant had failed to establish that the respondent had violated any order of the Court. A short resume of the facts lending to the filing of Contempt Application No. 170 of 1989 and the present appeal need a notice at this stage.

2. The appellant filed W.P. No. 4835 of 1989 and in W.M.P. No. 7079 of 1989 filed therewith, sought an interim injunction restraining the respondent herein inter alia from carrying on any building or construction work over the site pending disposal of the Writ Petition. On 4th April, 1989, an interim injunction was issued along with notice of the petition to the opposite side. According to the appellant, the order of the court was served on the respondent on 5th April, 1989 but despite service, the respondent proceeded with the work of construction in the first and second floors by putting up brick wall on the southern side and plastering the interior of the walls. The appellant, through a telegram dated 8th April, 1989, brought to the notice of the respondent that the order of the Court was being violated by him. In reply, the stand of the respondent, however, was that no order of the Court was being flouted in any manner. On 28th April, 1989, after hearing the counsel for both sides, the learned trial Judge recorded an undertaking affidavit to the effect that the respondent herein will demolish the fourth floor (top floor) at his cost and expense, if the construction is held to be unauthorised and is not regularised. The Court also ordered, without prejudice to the contentions of either of the parties by way of interim arrangements, as follows :-

"........ The second respondent is permitted to continue the construction at No. 11, 2nd Crescent Park Road. However, the construction is restricted in respect of the top floor, i.e., the 4th floor only the 2nd respondent should leave a side set back up to 20' on the eastern side within his portion. It is made clear that this arrangement will hold good till the next hearing day." *

According to the appellant, the respondent, contrary to the undertaking and the order of the Court dated 28th April, 1989 (supra), built up the entire unfinished walls on the southern side in the first and second floor on 8th May, 1989 and had also put up a scaffolding on the eastern side of the building and was busy putting brick walls on the eastern and northern sides of the three floors, without leaving 20' side set back space on the eastern side of the portion besides constructing a water tank on the top of the fourth floor, contrary to the permission granted by the Court. On these allegations, the appellant filed Contempt Application No. 170 of 1989 seeking an order to punish the respondent for committing Contempt of Court. The Contempt Application was resisted and a counter-affidavit was filed by the respondent denying the allegations of violating the order of the Court. It was maintained that the construction work undertaken by the respondent was in accordance with the directions of the Court and that the workers of the respondent were engaged only in cleaning and curing the completed structure which could not be characterised as any construction work. Apart from alleging that the allegations contained in paragraph 4 of the affidavit filed in support of the application were vague and not specific, the respondent also asserted that he has not flouted the order dated 28th April, 1989 in any manner whatsoever. The respondent maintained in the counter-affidavit that there was no prohibition to carry on with the construction work on the second floor and that the scaffolding on the eastern side had