ORAL JUDGMENT

1 The list has been revised twice. Mr.Vimal Patel, learned advocate for the appellants is present.

Counsels for the respective respondents have remained absent. In view of certain subsequent developments pointed out by Shri Vimal Patel, I see no reason that the hearing of the Appeal from Order be postponed.

2 Respondent – original plaintiffs had filed Civil Suit in the City Civil Court at Ahmedabad seeking relief that the appellants hand over peaceful and vacant possession of the suit property. In the civil suit so filed, an application Exh.5 was filed for interim injunction. The prayer in the application was that the appellants be restrained from making any kind of temporary or permanent construction upon the suit property, or from demolishing any shed, super structure constructed there upon or any part thereof or dismantling the plant and machinery lying therein. The trial Court granted ex-parte ad interim injunction in terms of paragraph 12 (A) and (B) of the injunction application. The prayers of 12(A) &

(B) in such application read as under:

“12 [a] During the pendency and final disposal of the suit, the Hon’ble Court be pleased to grant a temporary injunction restraining the defendants, their agents, servants, employees, representatives, associates or any persons claiming through them from parting with possession of aforesaid property more particularly described in Schedule A & B annexed to the plaint or any part thereof in favor of any other person.

[b] During the pendency and final disposal of the suit, the Hon’ble Court be pleased to grant a temporary injunction restraining the defendants, their agents, servants, employees, representatives, associates or any persons claiming through them from making any kind of temporary or permanent construction upon or from demolishing any shed, super structure constructed there upon or any part thereof or from dismantling the plant and machinery lying therein.”

The order was subsequently confirmed on

22.06.2007.

3 In the meantime, it was the case of the plaintiffs-respondents herein that the appellants had committed breach of the aforesaid order on injunction inasmuch as it was their case that they had supported digging the premises. A specific averment was made in the application filed under Order 39 Rule 2(A) of the Code of Civil Procedure, 1908 that in spite of the injunction order, the appellants had committed willful breach of the order. The trial Court in such application below Exh.56 by an order dated 12.12.2005 directed the present appellant to remove the construction made in violation of the Court’s order within one month from the date of this order. The Court, further, observed that the plaintiffs should be allowed to verify the fact. In the operative part of the order, the Court directed that in case the present appellant failed to remove such application within one month from the date of this order, the appellant shall be liable to undergo civil prison for a period of one month, on payment of necessary subsistence allowance. According to Mr.Vimal Patel, the nature of construction that was carried out and on which breach was alleged was only a foundation in order to install heavy weighed machineries, which was not possible without a strong foundation. This order passed below Ehx.56 is a subject matter of challenge before this Court in the present Appeal from Order.

4 Mr.Vimal Patel, learned counsel for the appellants has drawn my attention to an additional affidavit dated 01.12.2016 suggesting the subsequent events that occurred after the order under challenge. He has brought on record copy of the order passed by this Court in A.O No. 298 of 2017 dated 17.09.2007.

This Appeal from Order was preferred by the present appellant against the order dated 22.06.2007, on which the breach was alleged to have occurred. The Court while partly allowing the Appeal from Order of the present appellant, passed the following directions:

“XXX XXX XXX XXX I hereby permit the appellan