Kanwar Singh Saini Vs.
High Court of Delhi
J U D G M E N T
Dr. B.S. Chauhan, J.
- the most cherished fundamental right, a basic human right, a
"transcendental", inalienable, and `primordial' right, should not be
put in peril without following the procedure prescribed by law and in a casual
and cavalier manner. Instant case is an example where all proceedings in the
suit as well as under the Contempt of Courts Act, 1971, (hereinafter called as `Act
1971'), have been taken without adverting to the procedure known in law.
Criminal Appeal has been preferred under Section 19 (1)(b) of the Act 1971 against
the impugned judgment and order dated 20.7.2009 passed by the High Court of Delhi
at New Delhi in Contempt Case (Crl.) No.9 of 2004, whereby the appellant has
been convicted for committing contempt of court by violating the undertaking
given by him to the Court at the time of disposal of the suit and awarded him
simple imprisonment for four months.
and circumstances giving rise to this appeal are:
A. The appellant executed
a sale deed in favour of one Mohd. Yusuf on 5.9.2002 in respect of the premises
bearing No. 148, village Khirki, Malviya Nagar, New Delhi for a sum of
Rs.2,10,000/- and got the said deed registered.
B. Mohd. Yusuf filed suit
No. 106/2003 in the Civil Court, Delhi, on 26.4.2003 for permanent injunction
alleging that the appellant tried to dispossess him on 24.4.2003 from the said suit
premises. His application for interim relief was rejected. The Civil Court issued
summons and notice to the appellant/defendant.
C. In response to the
said summons and notice, the appellant filed a written statement on 29.4.2003
admitting the execution of sale deed in respect of the suit premises for a sum
of Rs.2.10 lacs and handing over its possession to the plaintiff but denied the
allegation that he had made any attempt to dispossess the plaintiff. However, the
appellant raised the grievance that the entire consideration of sale has not
been paid to him as a sum of Rs.25,000/- still remained outstanding.
D. The Civil Court while
taking his written statement on record also recorded the statement of the
appellant/defendant in person that he had neither threatened to dispossess nor he
would dispossess the plaintiff. The plaintiff's counsel accepted the statements
made by the appellant/defendant in the court and the case was adjourned for 12.5.2003.
On 12.5.2003, plaintiff asked the court to dispose of the suit in view of the statement
made by the appellant/defendant. The court disposed of the suit directing the
appellant/defendant not to breach the undertaking given by him.
E. Appellant's son filed
a suit on 11.8.2003 for partition in respect of two plot Nos. i.e. 147A and 148
claiming that he had a share in the said properties.
F. Mohd. Yusuf-plaintiff
in the Suit No. 106/2003 filed an application before the High Court under the provisions
of Act 1971 alleging the violation of the undertaking given by the appellant to
the civil court. The application came up for hearing on 11.9.2003 but none appeared
to press the same. The High Court disposed of the application vide order dated 11.3.2003
giving liberty to the said applicant to approach the civil court. The said order
was passed without issuing notice to the appellant or anyone else.
G. Mohd. Yusuf filed an
application dated 15.9.2003 under Order XXXIX Rule 2A of Code of Civil
Procedure, 1908 (hereinafter called `CPC') read with Sections 10, 11 and 12 of
the Act 1971 against the appellant, his wife and two sons alleging that when he
visited the suit premises on 4.8.2003, he found that the locks of the main door
had been broken by them. The appellant filed reply to the said application on 22.10.2003
alleging that the execution of the sale deed dated 5.9.2002 and his written
statement and the statement made before the court on 29.4.2003 had been
obtained by fraud.
H. While hearing the
said application, the Court vide order dated 16.2.2004 recorded that as the
appellant had taken inconsistent pleas to his written statement filed earlier and
violated the undertaking while making his oral statement, a prima facie case of
contempt was made out and referred the matter to the High Court to be dealt
with under the provisions of Act 1971.
I. The appellant filed a
suit on 23.2.2005 for cancellation of the sale deed dated 5.9.2002. J. The High
Court while accepting the reference as Criminal Contempt, issued show cause notice
to the appellant on 2.2.2005 directing him to appear in person on 16.2.2005. The
Court vide impugned judgment and order dated 20.7.2009 held the appellant
guilty of criminal contempt on the basis of inconsistent pleas taken by him and
also for the breach of undertaking and imposed simple imprisonment for four
months. The appellant was granted bail by this Court on 29.9.2009. Hence, this
Tanmaya Mehta, learned counsel appearing for the appellant has raised the grievance
mainly, that it was a case of civil contempt which could have been dealt with by
the Trial Court itself and by no means could be treated as a criminal contempt case.
The High Court erred in treating the same as criminal contempt and awarded the punishment
to the appellant which was not warranted under the facts and circumstances of the
case and therefore, the judgment and order of the High Court convicting the
appellant is liable to be set aside.
Shree Prakash Sinha, learned counsel appearing for the plaintiff - Mohd.Yusuf,
intervener, has opposed the appeal contending that the appellant and his family
members had made false and misleading statements to scuttle the interest of
justice. The appellant has not only committed criminal contempt but also abused
the process of the court. Thus, no interference is called for.
suit was filed on 26.4.2003 and notice was issued returnable just after three days,
i.e. 29.4.2003 and on that date the written statement was filed and the appellant
appeared in person and his statement was recorded. Order X Rule 1 CPC provides
for recording the statement of the parties to the suit at the "first
hearing of the suit" which comes after the framing of the issues and then
the suit is posted for trial, i.e. for production of evidence. Such an
interpretation emerges from the conjoint reading of the provisions of Order X
Rule 1; Order XIV Rule 1(5); and Order XV Rule 1, CPC.
The cumulative effect
of the above referred provisions of CPC comes to that the "first hearing
of the suit" can never be earlier than the date fixed for the preliminary examination
of the parties and the settlement of issues. On the date of appearance of the defendant,
the court does not take up the case for hearing or apply its mind to the facts
of the case, and it is only after 6filing of the written statement and framing
of issues, the hearing of the case commences. The hearing presupposes the existence
of an occasion which enables the parties to be heard by the Court in respect of
should be first in point of time after the issues have been framed. The date of
"first hearing of a suit" under CPC is ordinarily understood to be the
date on which the Court proposes to apply its mind to the contentions raised by
the parties in their respective pleadings and also to the documents filed by
them for the purpose of framing the issues which are to be decided in the suit.
Thus, the question of having the "first hearing of the suit" prior to
determining the points in controversy between the parties i.e. framing of
issues does not arise.
The words the
"first day of hearing" does not mean the day for the return of the
summons or the returnable date, but the day on which the court applies its mind
to the case which ordinarily would be at the time when either the issues are
determined or evidence is taken. [Vide: Ved Prakash Wadhwa v. Vishwa Mohan, AIR
1982 SC 816; Sham Lal (dead) by Lrs. v. Atma Nand Jain Sabha (Regd.) Dal Bazar,
AIR 1987 SC 197; Siraj Ahmad Siddiqui v. Shri Prem Nath Kapoor, AIR 1993 SC
2525; and M/s Mangat Singh Trilochan Singh thr. Mangat Singh (dead) by Lrs.
& Ors. v. Satpal, AIR 2003 SC 4300]
the above fact situation, it is evident that the suit was filed on 26.4.2003 and
in response to the notice issued in that case, the appellant/defendant appeared
on 29.4.2003 in person and filed his written statement. It was on the same day
that his statement had been recorded by the court. We failed to understand as to
what statutory provision enabled the civil court to record the statement of the
appellant/defendant on the date of filing the written statement. The suit itself
has been disposed of on the basis of his statement within three weeks of the
institution of the suit. The order sheets of the suit read as under:
counsel for the plaintiff. Arguments on injunction application heard. No ground
for granting ex-parte stay order at this stage, request in this regard is
declined. Issue summons of the suit and notice of the interim application to the
defendants on PF and RC, courier, UPC and dasti also for 29-04-2003.
"Counsel for the
Defendant in person in
He states that he is not
likely to dispossess the plaintiff from the suit premises as he has already sold
the same. However, he has stated that he has to take certain amount from the plaintiff
towards expenses which has not been paid by the plaintiff. There is counter claim
of the defendant affixing the court fee and in any case, he has legal remedy to
exercise it. The defendant is ready to make the statement. Let it be recorded.
Shri Kanwar Singh Saini, Defendant on
Neither I have
threatened the plaintiff nor I will dispossess him as I have already sold the
suit property vide sale deed. The suit of the plaintiff may kindly be dismissed
as there is no merit in the same.
R.O. & A.C.
(Kanwar Singh Saini)
Ld. Counsel for plaintiff Shri Iqbal Ahmed without oath:
I have heard the statement
of defendant and I have instruction from the plaintiff to accept the same. The
suit of the plaintiff may kindly be disposed of. R.O.&A.C.
"I have heard
the statement of defendant and I accept the same. My suit be disposed of in terms
of statement of defendant.
learned Judge passed the following order:- "
Present: Plaintiff in
person. Ld. Counsel for the defendant. Statement of plaintiff is recorded on a separate
sheet. Statement of defendant is already recorded. Keeping in view of the
statements of parties, the suit of the plaintiff is disposed of. Parties are
bound by their statements as given in the court. No orders as to costs. File be
consigned to Record Room.
that as it may, the so-called statement/undertaking given by the
appellant/defendant culminated into the decree of the Civil Court dated 12.5.2003.
Thus, the question does arise as to whether the 1application under Order XXXIX
Rule 2A CPC or under the Act 1971 could be entertained by the Civil Court and
whether the matter could be referred to the High Court at all.
under Order XXXIX Rule 2A CPC lies only where disobedience/breach of an injunction
granted or order complained of was one, that is granted by the court under
Order XXXIX Rules 1 & 2 CPC, which is naturally to enure during the pendency
of the suit. However, once a suit is decreed, the interim order, if any, merges
into the final order. No litigant can derive any benefit from mere pendency of
case in a Court of Law, as the interim order always merges in the final order
to be passed in the case and if the case is ultimately dismissed, the interim order
stands nullified automatically. (Vide: Dr. A.R. Sircar v. State of U.P. & Ors.,
1993 Suppl. (2) SCC 734; Shiv Shanker & Ors. v. Board of Directors, UPSRTC &
Anr., 1995 Suppl (2) SCC 726; Committee of Management, Arya Nagar Inter College,
Arya Nagar, Kanpur, through its Manager & Anr. v. Sree Kumar Tiwary &
Anr., AIR 1997 SC 3071; M/s. GTC Industries Ltd. v. Union of 1India & Ors.,
AIR 1998 SC 1566; and Jaipur Municipal Corpn. v. C.L. Mishra, (2005) 8 SCC
case there is a grievance of non-compliance of the terms of the decree passed in
the civil suit, the remedy available to the aggrieved person is to approach the
execution court under Order XXI Rule 32 CPC which provides for elaborate
proceedings in which the parties can adduce their evidence and can examine and cross-examine
the witnesses as opposed to the proceedings in contempt which are summary in
nature. Application under Order XXXIX Rule 2A CPC is not maintainable once the
suit stood decreed.
Law does not permit
to skip the remedies available under Order XXI Rule 32 CPC and resort to the
contempt proceedings for the reason that the court has to exercise its discretion
under the Act 1971 when an effective and alternative remedy is not available to
the person concerned. Thus, when the matter relates to the infringement of a decree
or decretal order embodies rights, as between the parties, it is not expedient
to invoke and exercise contempt jurisdiction, in essence, as a mode of
executing the decree or merely because other remedies may take time or are more
circumlocutory in character.
Thus, the violation of
permanent injunction can be set right in executing the proceedings and not the 1contempt
proceedings. There is a complete fallacy in the argument that the provisions of
Order XXXIX Rule 2A CPC would also include the case of violation or breach of
permanent injunction granted at the time of passing of the decree.
Food Corporation of India v. Sukha Deo Prasad, AIR 2009 SC 2330, this Court held
that the power exercised by a court under Order XXXIX Rule 2A is punitive in
nature, akin to the power to punish for civil contempt under the Act 1971. Therefore,
such powers should be exercised with great caution and responsibility. Unless
there has been an order under Order XXXIX Rule 1 or 2 CPC in a case, the question
of entertaining an application under Order XXXIX Rule 2A does not arise. In case
there is a final order, the remedy lies in execution and not in an action for
contempt or disobedience or breach under Order XXXIX Rule 2A. The contempt jurisdiction
cannot be used for enforcement of decree passed in a civil suit.
proceedings under Order XXXIX Rule 2A are available only during the pendency of
the suit and not after conclusion of the trial of the suit. Therefore, any
undertaking given to the court during the pendency of the suit on the basis of
which the suit itself has been 1disposed of becomes a part of the decree and breach
of such undertaking is to be dealt with in execution proceedings under Order XXI
Rule 32 CPC and not by means of contempt proceedings.
Even otherwise, it is
not desirable for the High Court to initiate criminal contempt proceedings for disobedience
of the order of the injunction passed by the subordinate court, for the reason
that where a decree is for an injunction, and the party against whom it has
been passed has wilfully disobeyed it, the same may be executed by attachment
of his property or by detention in civil prison or both. The provision of Order
XXI Rule 32 CPC applies to prohibitory as well as mandatory injunctions. In other
words, it applies to cases where the party is directed to do some act and also
to the cases where he is abstained from doing an act.
Still to put it
differently, a person disobeys an order of injunction not only when he fails to
perform an act which he is directed to do but also when he does an act which he
is prohibited from doing. Execution of an injunction decree is to be made in pursuance
of the Order XXI Rule 32 CPC as the CPC provides a particular manner and mode
of execution and therefore, no other mode is permissible. (See: Hungerford Investment
Trust Ltd. (In voluntary Liquidation) v. Haridas Mundhra & Ors., AIR 1972
can be no dispute regarding the settled legal proposition that conferment of jurisdiction
is a legislative function and it can neither be conferred with the consent of
the parties nor by a superior court, and if the court passes order/decree having
no jurisdiction over the matter, it would amount to a nullity as the matter
goes to the roots of the cause. Such an issue can be raised at any belated stage
of the proceedings including in appeal or execution. The finding of a court or tribunal
becomes irrelevant and unenforceable/inexecutable once the forum is found to
have no jurisdiction. Acquiescence of a party equally should not be permitted
to defeat the legislative animation. The court cannot derive jurisdiction apart
from the statute.
(Vide: The United Commercial
Bank Ltd. v. Their Workmen AIR 1951 SC 230; Smt. Nai Bahu v. Lal Ramnarayan &
Ors., AIR 1978 SC 22; Natraj Studios Pvt. Ltd. v. Navrang Studio & Anr., AIR
1981 SC 537; Sardar Hasan Siddiqui & Ors. v. State Transport Appellate Tribunal,
U.P., Lucknow & Ors. AIR 1986 All. 132; A.R. Antulay v. R.S. Nayak &
Anr., AIR 1988 SC 1531; Union of India & Anr. v. Deoki Nandan Aggarwal, AIR
1992 SC 96; Karnal Improvement Trust, Karnal v. Prakash Wanti (Smt.) (Dead) &
Anr., (1995) 5 SCC 159; U.P. Rajkiya Nirman Nigam Ltd. v. Indure Pvt. Ltd.
& 1Ors., AIR 1996 SC 1373; State of Gujarat v. Rajesh Kumar Chimanlal Barot
& Anr., AIR 1996 SC 2664; Kesar Singh & Ors. v. Sadhu, (1996) 7 SCC
711; Kondiba Dagadu Kadam v. Savitribai Sopan Gujar & Ors., AIR 1999 SC
2213; and Collector of Central Excise, Kanpur v. Flock (India) (P) Ltd., Kanpur,
AIR 2000 SC 2484).
When a statute gives a
right and provides a forum for adjudication of rights, remedy has to be sought only
under the provisions of that Act. When an Act creates a right or obligation and
enforces the performance thereof in a specified manner, "that performance cannot
be enforced in any other manner". Thus for enforcement of a right/obligation
under a statute, the only remedy available to the person aggrieved is to get
adjudication of rights under the said Act. (See: Doe d. Rochester (BP) v.
Bridges, 109 ER 1001; Barraclough v. Brown, 1897 AC 615; The Premier Automobiles
Ltd. v. K.S.Wadke & Ors., AIR 1975 SC 2238; and Sushil Kumar Mehta v.
Gobind Ram Bohra (Dead) thr. L.Rs., (1990) 1 SCC 193).
Samee Khan v. Bindu Khan, AIR 1998 SC 2765, this Court explained the distinction
between a civil and criminal contempt observing that enforcement of the order in
civil contempt is for the 1benefit of one party against another, while object
of criminal contempt is to uphold the majesty of law and the dignity of the
court. The scope of the proceedings under Order XXXIX Rule 2A CPC is entirely different.
It is a mode to compel the opposite party to obey the order of injunction by
attaching the property and detaining the disobedient party in civil prison as a
mode of punishment for being guilty of such disobedience. Breach of undertaking
given to the court amounts to contempt in the same way as a breach of
injunction and is liable to be awarded the same punishment for it.
is a settled legal proposition that the executing court does not have the power
to go behind the decree. Thus, in absence of any challenge to the decree, no
objection can be raised in execution. (Vide: State of Punjab & Ors. v. Mohinder
Singh Randhawa & Anr ., AIR 1992 SC 473).
case requires to be considered in the light of the aforesaid settled legal
proposition. Whatever may be the circumstances, the court decreed the suit vide
judgment and decree dated 12.5.2003. The said decree was passed on the basis of
admission/undertaking made by the appellant on 129.4.2003 and the pleadings taken
by him in his written statement. Therefore, in a case where there was any disobedience
of the said judgment and decree, the application under Order XXXIX Rule 2A CPC should
not have been entertained. Such an application is maintainable in a case where there
is violation of interim injunction passed during the pendency of the suit. In
the instant case, no interim order had ever been passed. Thus, the appropriate
remedy available to the decree holder-Mohd. Yusuf had been to file application for
execution under Order XXI Rule 32 CPC. The procedure in execution of an
injunction decree is same as prescribed under Order XXXIX Rule 2A i.e.
attachment of property and detention of the disobedient to get the execution of
the order. In view thereof, all subsequent proceedings were unwarranted.
of the decree holder had been for violation of the undertaking which at the
most could be civil contempt as defined under Section 2(b) of the Act 1971 as it
includes the wilful breach of an undertaking given to a court. Therefore, the
Trial Court failed to make a distinction between civil contempt and criminal contempt.
A mere disobedience by a party to a civil action of a specific order made by
the court in the suit is civil contempt for the reason that it is for the sole benefit
of the other party to the civil suit. This case remains to the extent that, in
such a fact situation, the administration of justice could be undermined if the
order of a competent court of law is permitted to be disregarded with such impunity,
but it does not involve sufficient public interest to the extent that it may be
treated as a criminal contempt. It was a clear cut case involving private
rights of the parties for which adequate and sufficient remedy had been provided
under CPC itself, like attachment of the property and detention in civil
prison, but it was not a case wherein the facts and circumstances warranted the
reference to the High Court for initiating the proceedings for criminal contempt.
High Court in para 29 of the impugned judgment has taken note of various
judgments of this Court including Dhananjay Sharma v. State of Haryana &
Ors., (1995) 3 SCC 757; Rita Markandey v. Surjit Singh Arora, (1996) 6 SCC 14;
and Murray & Co. v. Ashok Kr. Newatia & Anr., (2000) 2 SCC 367, wherein
it has been held that filing of a false affidavit or taking false pleadings in
the court amounts to criminal contempt. The High Court failed to appreciate the
nature/status of proceedings in which the alleged false affidavit had been
filed. The instant case is quite distinguishable on facts from those cases. In
the instant case, proceedings under Order XXXIX Rule 2A CPC were not
maintainable at all. Had the complainant Mohd. Yusuf filed the execution proceedings
under Order XXI Rule 32 CPC, the court could have proceeded in accordance with
law without going into the averments raised therein by the appellant.
a given case if the court grants time to a tenant to vacate the tenanted premises
and the tenant files an undertaking to vacate the same after expiry of the said
time, but does not vacate the same, the situation would be altogether different.
(See: Sakharan Ganesh Aaravandekar & Anr. v. Mahadeo Vinayak Mathkar & Ors.,
(2008) 10 SCC 186; and Mahender Kumar Gandhi v. Mohammad Tajer Ali & Ors.,
(2008) 10 SCC 795). In an appropriate case where exceptional circumstances exist,
the court may also resort to the provisions applicable in case of civil contempt,
in case of violation/breach of undertaking/judgment/order or decree.
passing any final order on such application, the court must satisfy itself that
there is violation of such judgment, decree, direction or order and such disobedience
is wilful and intentional. Though in a case of execution of a decree, the
executing court may not be bothered whether the disobedience of the decree is wilful
or not and the court is bound to execute a decree whatever may be the consequence
thereof. In a contempt proceeding, the alleged contemnor may satisfy the court
that disobedience has been under some compelling circumstances, and in that
situation, no punishment can be awarded to him. (See: Niaz Mohammad & Ors.
v. State of Haryana & Ors, (1994) 6 SCC 332; Bank of Baroda v. Sadruddin Hasan
Daya & Anr., AIR 2004 SC 942; and Rama Narang v. Ramesh Narang & Anr.,
AIR 2006 SC 1883) Thus, for violation of a judgment or decree provisions of the
criminal contempt are not attracted.
application filed under Order XXXIX Rule 2A CPC bearing Misc. No.89/2003 by the
decree holder contains the following pleadings and prayer was made to punish
the said contemnors: "To his utter amazement, the petitioner-applicant on 4th
of August 2003 on visiting the site (148, Village Khirki, New Delhi) learnt that
the respondents in league and collusion with one another in deliberate and wilful
breach of the aforementioned statement, assurance and/or undertaking had broken
open locks and doors of the premises in reference 148, Village Khirki, New Delhi
and taken possession thereof, thereby committing grave contempt of the Hon'ble Court
(by breach of the aforementioned statement, assurance and/or undertaking
furnished on 29th of April 2003 2 as accepted by the learned Civil Judge on
12th May 2003)."
The Civil Court considered
the said application; took notice of the facts and in its order dated 16.2.2004
held: "It also shows that plaintiff was in possession of the suit property
on the date of making the statement. As on today, the respondents are in possession
of the suit property. Even the respondent had not denied this fact rather their
contention is that plaintiff was never in possession of the suit property. Further,
a local commissioner was appointed and has also corroborated the fact that respondents
are in possession. Therefore, prima facie, it appears that plaintiff has been dispossessed
from the suit property by the respondents. The contention of the respondent no.1
that plaintiff was never in possession runs counter to the written statement of
defendant filed in the original suit. Moreover, this fact needs evidence and evidence
will be led only before Hon'ble High Court.
facie case for reference of the contempt petition has been made out." The
Court reached the following conclusion : "As to the contention of learned counsel
for respondent no.1 that evidence is required before making a reference, the
provision of section 11 of the Contempt of Courts Act, 1971 are to be noted. Section
11 says that it is the Hon'ble High Court which has jurisdiction to inquire into
or try the contempt petition. Therefore, the contention has no force. This Court
has only to see that prima facie case exist for referring the contempt." 2
The Court made the reference as under: "However, against other respondents
there is no material for making the reference. In view of the above, a reference
is made to the Hon'ble High Court with humble prayer to try the contempt petition
against respondent no.1 and to punish the guilty accordingly. Application is disposed
view of the above discussion, as such proceedings were not maintainable, the
order of reference itself was not warranted. It also becomes crystal clear that
the appellant had been subjected to unfair procedure from the institution of the
suit itself. The suit had been "disposed of" in great haste without
following the procedure prescribed in CPC. Once the suit has been decreed, the
court could not entertain the application under Order XXXIX Rule 2A CPC as the suit
had already been decreed and such an application is maintainable only during
the pendency of the suit in case the interim order passed by the court or
undertaking given by the party is violated. In the instant case, no interim
order had ever been passed and the undertaking given by the appellant/defendant
not to dispossess the said plaintiff culminated into a final decree and thus,
if any further action was required, it could be taken only in execution
proceedings. There has been manifest injustice in the case and the doctrine of ex
debito justitiae has to be applied in 2order to redress the grievances of the
appellant/defendant. Judgment and order impugned cannot be sustained under any
courts below have proceeded with criminal contempt proceedings not for disobeying
any judgment or order but for taking inconsistent pleas in the reply filed by
the appellant to the application under Order XXXIX Rule 2A CPC, accepting it to
be a false affidavit. Purposes of initiation of contempt proceedings are
two-fold: to ensure the compliance of the order passed by the court; and to punish
the contemnor as he has the audacity to challenge the majesty of law. In the
instant case, admittedly, the grievance of the complaint had been disobedience of
decree/order of the civil court dated 12.5.2003. The High Court convicted the appellant
and sent him to jail but did not grant any relief so far as the enforcement of
the order dated 12.5.2003 is concerned. We failed to understand as under what circumstances,
the High Court did not even consider it appropriate to enforce the judgment/order/decree
if it had been disobeyed by the appellant. The instant case is a glaring
example of non-application of mind and non-observance of procedure prescribed by
law for dealing with such matters. Entire proceedings have been conducted in
most casual and cavalier manner.
counsel for the contesting respondent has placed a very heavy reliance on the
judgments of this Court in Palitana Sugar Mills Private Limited & Anr. v. Vilasiniben
Ramachandran & Ors., (2007) 15 SCC 218; and C. Elumalai & Ors. v.
A.G.L. Irudayaraj & Anr., AIR 2009 SC 2214, wherein this court held that
wherever there is a wilful disobedience/contumacious conduct - deliberate
flouting of the order of the court, it amounts to contempt and it becomes the
duty of the court to exercise its inherent power to set the wrong right as a party
cannot be permitted to perpetuate the wrong by disobeying the order further. In
the case at hands, the court initiated criminal contempt proceedings but ultimately
after convicting the appellant did not enforce the order passed by the Civil
Court dated 12.5.2003.
Daroga Singh & Ors. v. B.K. Pandey, (2004) 5 SCC 26, this Court rejected
the plea of the contemnors that the High Court could not initiate the contempt
proceedings in respect of the Contempt of the Courts subordinate to it placing reliance
upon earlier judgments in Bathina Ramakrishna Reddy v. State of Madras, AIR
1952 SC 149; Brahma Prakash Sharma & Ors. v. The State of U.P., AIR 1954 SC
10; and State of Madhya Pradesh v. Revashankar, AIR 1959 SC 2102. The Court further
explained the scope of contempt proceedings observing: ".......... For the
survival of the rule of law the orders of the courts have to be obeyed and continue
to be obeyed unless overturned, modified or stayed by the appellate or
revisional courts. The court does not have any agency of its own to enforce its
orders. The executive authority of the State has to come to the aid of the party
seeking implementation of the court orders. The might of the State must stand behind
the court orders for the survival of the rule of the court in the country. Incidents
which undermine the dignity of the courts should be condemned and dealt with
swiftly....... .......... If the judiciary has to perform its duties and
functions in a fair and free manner, the dignity and the authority of the courts
has to be respected and maintained at all stages and by all concerned failing which
the very constitutional scheme and public faith in the judiciary runs the risk
of being lost."
contempt proceedings being quasi-criminal in nature, the standard of proof requires
in the same manner as in other criminal cases. The alleged contemnor is entitled
to the protection of all safeguards/rights which are provided in the Criminal Jurisprudence,
including the benefit of doubt. There must be a clear-cut case of obstruction
of administration of justice by a party intentionally to bring the matter
within the ambit of the said provision. The case should not rest only on
surmises and conjectures. In Debabrata Bandopadhyay & Ors. v. The State of
West Bengal & Anr., AIR 1969 SC 189, this Court observed as under: "A
question whether there is contempt of court or not is a serious one. The court
is both the accuser as well as the judge of the accusation. It behoves the
court to act with as great circumspection as possible making all allowances for
errors of judgment and difficulties arising from inveterate practices in courts
and tribunals. It is only when a clear case of contumacious conduct not explainable
otherwise, arises that the contemnor must be punished......... Punishment under
the law of Contempt is called for when the lapse is deliberate and in disregard
of one's duty and in defiance of authority. To take action in an unclear case is
to make the law of contempt do duty for other measures and is not to be encouraged."
view of the above, as the application under Order XXXIX Rule 2A CPC itself was
not maintainable all subsequent proceedings remained inconsequential. Legal maxim
"sublato fundamento cadit opus" which means foundation being removed structure
falls is attracted.
taking into consideration, the fact situation involved in the case, the appeal is
allowed. The impugned judgment and order dated 20.7.2009 passed by the High Court
of Delhi at New Delhi in Contempt Case (Crl.) No. 9 of 2004 is hereby set
aside. His bail bonds stand discharged.
we clarify that any observation made in this judgment shall not affect, in any
manner, merit of other cases pending between the parties in regard to the Suit
(Dr. B.S. CHAUHAN)