2007 PLP 3131 (YLR)

Through this application action under Order XXXIX, Rule 2(3); C.P.C. has been sought by respondent No.1 against four persons alleged to have disobeyed the final order of the Court dated 9-10-1998. It may be stated that the petitioner had filed this petition primarily alleging that the respondents had failed to perform their duties by not removing the encroachment caused by respondent No.1 in front of the petitioner's plot. By the above-mentioned order the Court after acknowledging the finding that land occupied by the respondent No.1 for several years had been partly open space which was regularizeable and the reminder was part of road alignment which could not be regularized, recorded the following operative order:- "We accordingly dispose. of this petition with a direction to the respondents Nos-2 &4 to take steps for removal of encroachment from such area as cannot be regularized. As to the other area, which is claimed to be open space and in occupation of respondent No.1 since about 25-30 years and not forming part of the road aligmnent the petitioner, if so desires, may seek other appropriate remedy available to him under the law." In the alleged application which was filed on 20-3-2001 it has been stated that four persons pained therein were responsible for raiding the house of the respondent No.1 demolishing the same and taking away valuables. Incidentally, the petitioner has pointed out that he had earlier C.M.A. No.1414 of 1999 alleging that the order of removal of encroachment passed by the Court on 9-10-1998 was not being complied with. The .application was fixed for hearing on 18-1-2000 when it was adjourned to 27-1-2000 and on that date a statement was filed on behalf of the petitioner to the effect that the encroachment- had been removed and the application was disposed of in the presence of the .counsel for the respondents Nos. l and 2.

2. We requested learned counsel for respondent No.1 to explain why the above application was filed after 14 months of the alleged incident. He pointed out that he had earlier filed C.M.A No-497/2000, which was dismissed for non-prosecution and subsequently an application for restoration was also dismissed on 22-12-2000 leaving the applicant to file a fresh one. The operative order of the Court shows that the respondents were directed to remove encroachment from the area forming part of the road" alignment and as regards the rest the petitioner was allowed to seek appropriate remedy under the law. The respondents contention seems to be that the contenmors transgressed the direction of the Court by moving forward to demolish his house as well. Indeed, such action might be in excess of the direction given by the Court and -even otherwise unlawful. However, we are doubtful whether, strictly speaking, it would amount to defiance or disobedience of the order of the Court.

3. In any event, an intricate factual controversy appears to be involved and we are of the considered view that this Court in constitutional jurisdiction is not an appropriate forum for resolving that. Moreover, it is evident that then matter has not been pursued by the respondent No.1 with due diligence. For these reasons we would dismiss this application and leave the parties to take appropriate action under the law. H.B.T./M-112/K Application dismissed.