Court No. - 2

Case :- CONTEMPT APPLICATION (CIVIL) No. - 5075 of 2020

Applicant :- Rahul Gupta

Opposite Party :- Dipti Arora

Counsel for Applicant :- Akhilesh Singh,Shivam Yadav

Hon'ble Suneet Kumar,J.

Heard the learned counsel for the applicant.

The instant contempt petition has been filed for violation of the order

dated 13.7.2019 passed by Additional Principal Judge, Family Court,

Gautam Buddh Nagar, granting visitation right to the applicant, father of

the minor child, whereby, opposite party will arrange meeting on every

Sumday from 10 A.M. to 1 P.M. in Play Day Park.

Since disputed questions of fact are involved, which cannot be gone into in

contempt jurisdiction. Applicant has remedy under Order 39 Rule 2(A) of

the Code of Civil Procedure. This Court in contempt jurisdiction would

decline to return finding on disputed questions of fact.

Reference may be made in this regard to a decision of this Court dated

18.09.2013 passed in Contempt Application (Civil) No. 4384 of 2013,

wherein similar issue fell for consideration. The order dated 18.09.2013

reads thus:

"Heard learned counsel for the applicant.

This application under Section 12 of the Contempt of Courts Act, 1971

(for short the 'Act') has been filed to punish the opposite parties for alleged

willful disobedience of temporary injunction order dated 27.2.2006 passed

by the Civil Judge (Junior Division), Jaunpur in O.S. No. 1589 of 2003.

It has been alleged that opposite parties have violated the order of status-

quo passed by the Civil Judge by making construction forcibly on the suit

property on which temporary injunction was operating.

Section 10 of the Act vests every High Court with the same jurisdiction,

powers and authority in respect of courts sub-ordinate to it as it has and

exercises in respect of of contempt of itself, only exception being a

contempt in respect of sub-ordinate court where such contempt is an

offence punishable under the Indian Penal Code.

The question which arises for consideration is whether an application

under Section 12 of the Act is liable to be maintained for an alleged

violation of temporary injunction order passed by a court in exercise of

powers conferred by Order XXXIX Rule 2A C.P.C. Order XXXIX Rule

2A C.P.C reads as under :

"2-A. Consequence of disobedience or breach of injunction - (1) In the

case of disobedience of any injunction granted or other order made

under rule 1 or rule 2 or breach of any of the terms on which the

injunction was granted or the order made, the Court granting the

injunction or making the order, or any Court to which the suit or

proceeding is transferred, may order the property of the person guilty of

such disobedience or breach to be attached, and may also order such

person to be detained in the civil prison for a term not exceeding three

months, unless in the meantime the Court directs his release."

The issue came up for consideration before a learned single Judge of this

Court in the case of Smt. Indu Tiwari vs. Ram Bahadur Chaudhari and

others, AIR 1981 Allahabad 309 wherein it was observed :

"It is well settled that the matter of contempt is always an issue between

the court and the contemner. No right vests in a private party to get any

person punished for contempt. He can only inform the Court of the

contempt committed by any person and thereafter it is for the Court to

deal with the contemner. The party which informs the Court about the

alleged contempt can only assist the Court in coming to the conclusion

whether any contempt has been committed or not. As opposed to this, if a

person obtains in interim injunction or a final decree for injunction, he

gets a right to enforce it. The provision for enforcement of an interim

injunction is contained in Order XXXIX Rule2-A, Civil P.C. and the

provision for enforcement of a decree for injunction is contained in Order

XXI, Rule 32, Civil P.C. According to the said provision, a person who

disobeys an injunction order can be