Dhulabhai & ANR Vs. Patel Chandrakant Dhulabhai & Ors.  INSC 1195
(21 July 2008)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CONTEMPT PETITION (CIVIL) Nos. 12-13 of
2006 IN SPECIAL LEAVE PETITION(CIVIL) Nos.7659-7660 OF 2004 PATEL RAJNIKANT
DHULABHAI & Anr. ... Petitioners VERSUS PATEL CHANDRAKANT DHULABHAI & Ors.
C.K. Thakker, J.
1. The present
contempt petitions are filed by the petitioners against respondent Nos. 1 to 3,
alleged contemners, praying that they be held guilty of `civil contempt' for
violating orders passed by this Court on April 26, 2004 and on January 10, 2005
and be punished accordingly. A prayer is also made directing the contemners to
deposit the amount received from third parties in consideration of 2 transfer
of property effected by them during the period of interim orders of this Court.
2. Shortly stated the
facts of the case are that petitioners and respondent Nos. 1, 4 and 5 (in
Special Leave Petitions) are real brothers and heirs and legal representatives
of one Dhulabhai Patel. It was the case of the petitioners that in 1961, one
Chandulal Muljibhai Parikh and Dhulabhai Patel (father of petitioners and
respondent Nos. 1, 4 and 5) purchased land bearing Revenue Survey Nos. 459/2,
464, 465, 466/1 and 466/2 admeasuring 6 acres and 9 gunthas of village
Atladara, Taluka and District Baroda in the State of Gujarat from one
Parvatibai Ingle by a registered sale deed. According to the petitioners, the
amount of consideration was paid from the funds of Hindu Undivided Family (HUF)
of Dhulbhai Patel, but name of respondent No. 1 Chandrakant Dhulabhai Patel was
shown as the purchaser of the property being the eldest son of decdeased
Dhulabhai Patel along with Chandulal Muljibhai 3 Parikh. Respondent Nos. 4 and
5 were minors at that time. Respondent No. 1, Chandrakant Dhulabhai Patel was
also studying in a college and was having no source of income whatsoever.
The entire amount was
paid by deceased Dhulabhai. According to the petitioners, several documents
revealed that the property was managed by HUF of Dhulabhai Patel. In October,
1986, Dhulabhai died. No partition by metes and bounds had been effected
between the sons of deceased Dhulabhai and the property continued to remain as
HUF property. The petitioners used to manage property after the death of
3. In 1990, a Memorandum
of Understanding (MoU) was entered into between respondent No. 1, Chandrakant
Patel, being eldest son of Dhulabhai Patel family on one hand and heirs of
deceased Chandulal Parikh on the other hand whereunder it was agreed that a
portion of land towards western side would be treated as 4 property of
deceased Dhulabhai Patel and his family members.
4. In 1998, however,
respondent No. 1 in conspiracy with third party and behind the back of the
petitioners and respondent Nos. 4 and 5 executed an agreement to sell the share
of HUF property belonged to the petitioners and other members of deceased
Dhulabhai Patel. A collusive suit came to be filed by respondent Nos. 2 and 3
(partners of M/s Om Shivam Corporation) in the Court of Civil Judge (Senior Division),
Baroda, being Special Civil Suit No. 311 of 1999 for specific performance of
agreement, dated January 18, 1998 against respondent No. 1 and within less than
a month, a collusive and fraudulent consent decree was passed. The petitioners
were neither aware of the suit nor the decree passed therein. It was only when
a caveat was filed by M/s Om Shivam Corporation, a partnership firm that the
petitioners suspected foul play. They, therefore, made an inquiry and came to
know 5 about the suit and collusive decree.
filed a suit being Special Civil Suit No. 605 of 2002 in the Court of Civil
Judge, (Senior Divison), Baroda for declaration, partition of joint family
property and their share in the said property. Along with the plaint, the petitioners
filed an application (Exh. 5) under Order XXXIX, Rules 1 and 2 read with
Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as
`the Code') for interim injunction restraining the defendants from putting up
any construction on the land admeasuring 1,43,000 sq. ft. towards western side
of the land bearing Revenue Survey Nos. 459/2, 464, 465, 466/1 and 466/2 and
from entering into any transaction of sale, gift, mortgage or from dealing with
the property in any other manner or from handing over possession of the suit
land to anyone else. The trial Court issued notice to the defendants, but did
not grant injunction as prayed by the petitioners- 6 plaintiffs. The
petitioners challenged the said order by filing Appeal from Order No. 140 of
2003 and the High Court of Gujarat vide its order dated May 2, 2003 directed
the trial Court to dispose of the Application (Exh. 5) on merits within 15 days
from the re-opening of the courts after summer vacation.
5. The trial Court
thereafter heard the matter and dismissed the Application by refusing interim
injunction. The petitioners once again preferred an appeal against the said
decision in the High Court being Appeal From Order No. 241 of 2003. Along with
Memorandum of Appeal, the petitioners filed Civil Application No. 5083 of 2003
for interim injunction. In paragraph 8 of the Civil Application, the
petitioners prayed for interim relief. The High Court by an order dated July
23, 2003, granted ex-parte ad interim relief in terms of paragraph 8(A).
6. The said paragraph
read as under;
therefore, pray that :
admission, hearing and final disposal of the aforesaid Appeal from Order, the
Hon'ble Court may be pleased to issue an injunction restraining opponents Nos.
1 to 3 herein, from putting up any construction on the suit land either
themselves or through their agents and/or servants and from disposing of the
said property or creating any interest therein in favour of a third party
either by sale, mortgage, transfer, assignment, gift or in any other manner
7. It is thus clear
that though interim injunction was refused by the trial Court, the High Court
on July 23, 2003, granted the prayer of the petitioner and issued interim
injunction during the pendency and final disposal of Appeal from Order
instituted by the petitioners-appellants.
8. The High Court
then heard the matter and by judgment and order dated March 26, 2004 dismissed
the appeal observing that considering 8 the facts and circumstances of the case
in their entirety, the order passed by the trial Court below Application Exh. 5
called for no interference. Interim relief which was granted earlier was
ordered to be vacated.
9. The learned
counsel appearing for the petitioners-appellants in the High Court, at that
stage, made a prayer to the Court to continue interim relief granted earlier so
as to enable the petitioners-appellants to approach higher forum. After hearing
the learned counsel for the parties and noting objections raised by the other side,
the Court continued interim relief granted earlier for four weeks.
10. Paragraphs 35 and
36 of the judgment which are relevant read as under;
35. Considering the
entire facts and circumstances of the case and having regard to the legal
position concerning the point in issue, this Court is of the view that the
impugned order passed by the Trial Court below an application Exh. 5 does not
call for any interference in this 9 Appeal From Order. Accordingly, this
Appeal From Order is dismissed. Interim relief granted earlier is vacated.
36. At this stage,
Mr. A.J. Patel, the learned advocate appearing for the appellants requested to
continue the interim relief granted earlier by this Court for the period of six
weeks so as to enable the appellants to approach the higher forum. Mr. Bhatt
and Mr. Nanavati, learned advocate appearing for the respondents Nos. 1, 2
& 3 respectively have strongly objected to the extension of interim relief.
After considering their submissions on this issue, the interim relief granted
earlier is extended for four weeks from today.
11. Being aggrieved
by the said order, the petitioners approached this Court by filing Special
Leave Petition (Civil) Nos. 7659-7660 of 2004. On April 26, 2004, this Court
issued notice and continued interim order passed by the High Court which was,
as noted earlier, in terms of prayer para 8(A). The order, dated April 26, 2004
passed by this Court read as under;
1 "The interim
order already granted by the High Court will continue subject to further orders
of this Court".
12. Notices were
served on the respondents who appeared. Affidavits and further affidavits were
thereafter filed and Special Leave Petitions were disposed of by this Court on
January 10, 2005.
13. The said order read
"The dispute in
these special leave petitions pertains to the construction on certain
properties which are claimed to be the joint family properties. By the impugned
interim order, the High Court has permitted construction to be made on the suit
properties. We have considered the reasoning of the High Court. While not
affirming the correctness of the prima facie opinion expressed therein, we are
of the view that the interest of the parties will be adequately protected if a
conditional order is passed.
The special leave
petitions, are, accordingly, disposed of by making it clear that any
construction which is made by the respondent - purchasers on the disputed
properties will be subject to the outcome of the suit.
Any third party right
which is created shall be done after notice to the petitioners. The pendency of
the 1 proceedings shall also be notified to each of the third parties so
involved. The Trial Court is directed to dispose of the suit expeditiously, preferably
within a period of six months from the date of the communication of this order.
14. The allegation of
the petitioners in the present Contempt Petitions is that in spite of interim
order passed by this Court on April 26, 2004, as modified by final order dated
January 10, 2005, the respondent Nos. 1 to 3 (contemners) dealt with and
transferred the suit property by entering into agreements, accepted the amount
by way of consideration, executed sale-deeds in favour of third parties without
notice to the petitioners, allowed construction to be made and thereby
committed wilful disobedience and intentional violation of the order of the
Court and they are liable to be punished in accordance with law.
15. On these
petitions, notices were issued on February 6, 2006. The respondents 1 appeared
and filed affidavits. Having satisfied that the pleadings were complete, the
Registry was directed to place the matters for final disposal. That is how the
matters have been placed before us.
16. The learned
counsel for the petitioners contended that in spite of the orders passed by
this Court, the contemners sold the property, received consideration and
executed sale-deeds. No notice was given to them about the transactions before
they were entered into. The orders of this Court were abundantly clear. The
first order dated April 26, 2004, totally restrained the respondents from
taking any action during the pendency of the proceedings. In spite of such
clear-cut order, properties were sold and several other actions were taken by
the contemners and they are liable to be punished for committing contempt of
Court. It was also submitted that even under the order dated January 10, 2005,
when Special Leave Petitions were disposed of 1 and earlier interim order was
modified, the contemners had acted in violation of the directions. And on that
ground also, they are liable under the Contempt of Courts Act.
17. The learned
counsel for the petitioners, in this connection, referred to agreements to sell
as well as sale deeds and acceptance of part payment or full payment of
consideration during the intervening period between July 23, 2003 when the High
Court granted interim relief in terms of para 8(A) and also orders dated April
26, 2004 and the final order dated January 10, 2005 by this Court. It was urged
that though the suit was pending before the trial Court and the matter was
sub-judice, in agreements to sell as also in sale deeds, an express and
unequivocal statement was made by the contemners that their title to the
property is `clear' and `marketable'. It was ordered by the Court on January
10, 2005 that if any third party right 1 would be created, it "shall be
done after notice to the petitioners". No such notice, however, was given
to the petitioners. It was only after the properties were sold that a `pursis'
was filed in the trial Court stating therein that certain properties were sold
by the defendants. Thus, there was clear breach of orders of this Court and the
contemners are liable to be punished for violating the interim orders.
18. The learned
counsel for the respondents-contemners, on the other hand, submitted that the
Contempt Petitions are liable to be dismissed. The respondents had not wilfully
and intentionally violated interim orders of this Court. No doubt, the High
Court, granted interim injunction in Civil Application in Appeal from Order on
July 23, 2003 but finally Appeal from Order itself was dismissed.
Similarly, this Court
on April 26, 2004 continued interim relief but ultimately, dismissed Special
Leave Petitions on January 1 10, 2005 by modifying earlier interim order. It
was also submitted that this Court never ordered to give `prior' notice to the
petitioners before entering into any agreement or executing sale-deed. It was,
therefore, not necessary for the respondents either to issue notice or to
intimate petitioners before entering into any transaction. But in certain
cases, even `prior' notice of transaction was given to the petitioners by the
though in some cases,
such notice was given after entering into agreements/transactions but the same
could not be said to be violative of the orders passed by this Court.
Alternatively, it was submitted that even if the Court finds that there is
`technical' breach of the orders of this Court, the respondents have tendered
unconditional and unqualified apology which may be accepted by this Court and
contempt proceedings may be dropped against them by showing magnanimity and
taking lenient view.
19. We have given
most anxious and thoughtful consideration to the rival contentions of the
parties. We have also gone through the relevant record and orders passed by the
High Court as also by this Court. We have perused affidavits and further
affidavits filed by the parties to these petitions. We have carefully gone
through various documents on record.
20. We have
reproduced both interim orders passed by this Court; (i) order, dated April 26,
2004, and (ii) order, dated January 10, 2005. Under the first order, larger
relief was granted, obviously because at that stage, the Court on prima facie
satisfaction of the case, issued notice to the respondents. Moreover, even the
High Court which had granted interim relief on July 23, 2003, continued the
said relief (though Appeal from Order was dismissed and interim relief was
vacated) so as to enable the aggrieved parties to approach this Court.
On January 10, 2005,
however, this Court 1 disposed of Special Leave Petitions. But taking note of
the pendency of the main matter (suit), the Court did not totally vacate
interim relief but modified it by imposing certain conditions.
The question before
us is whether the contemners had violated both the orders or any of the two
orders and whether such violation or disobedience was wilful or intentional as
alleged by the petitioners. If so, what punishment should be imposed on the
contemners and what should be the final order in these contempt petitions.
21. Before proceeding
with the consideration of rival contentions, it may be stated for the completion
of record that Special Civil Suit No. 605 of 2002 instituted by the petitioners
herein (plaintiffs) was decreed by the IXth Additional Senior Civil Judge,
Vadodara on May 23, 2006 and it was declared that plaintiff Nos. 1 and 2 and
defendant Nos. 1, 4 and 5 each has 3/16 share in the suit property and
defendant Nos. 7, 8 1 and 9 each has 1/48 share in the said property.
was ordered to be drawn up accordingly. It was also stated that the defendants
against whom the decree is passed have challenged the decree by filing First
Appeal in the High Court and the matter is sub-judice.
22. Now, it is the
case of the petitioners that in spite of interim orders of this Court, dated
April 26, 2004 and January 10, 2005, in gross violation, wilful disobedience
and intentional breach thereof, the contemners had sold certain properties
without notice to the petitioners. It was stated that the contemners executed a
sale-deed in favour of Madhuben Rohit and Jasodaben Thakor on August 30, 2005
for consideration of Rs.3,30,000/-. The contemners accepted a cheque of
Rs.2,00,000/- bearing No. 531526, dated October 15, 2004.
agreement to sell was executed in favour of Hemlataben Shah for Rs.3,00,000/-
on May 26, 2005 and the entire amount was received 1 by three cheques; cheque
No.719372, dated April 15, 2004; cheque No.719374, dated April 22, 2004 and
cheque No. 216684, dated April 29, 2004. Again, a sale deed in favour of Smt.
Ranjit Gulati was executed by accepting a cheque of Rs.51,000/- dated September
10, 2003, a cheque of Rs.1,00,000/- dated October 8, 2004 and a cheque of
Rs.1,39,000/- dated April 26, 2004. By producing additional documents on
record, the petitioners have stated that sale- deeds were executed by the
contemners in favour of Jayesh Natwarlal Parikh on August 18, 2005;
Parikh on August 18, 2005, Rashmikaben Navinchandra Desai on August 30, 2005
and Tolaram Radharam Popat on April 25, 2005. All these transactions were
entered into in gross violation and breach of the orders of the Court and the
contemners may, therefore, be punished for committing contempt of Court.
23. The respondents
have filed affidavits denying the allegations levelled by the petitioners and
asserting that they have not 2 committed any act in disobedience of the order
of the Court and the contempt petitions are liable to be dismissed.
24. Respondent No. 1
(Chandrakant Dhulabhai), in his affidavit, dated June 16, 2006 (filed on August
17, 2006) stated that the contempt petitions are `primarily' directed against
respondent Nos. 2 and 3 who are alleged to have violated the orders of this
Court. It was stated that the orders were required to be complied with by
respondent Nos. 2 and 3 and were not directed against respondent No. 1. It was
also stated that the respondent No. 1 is 67 years old and has been impleaded
just to harass him without making any averment/allegation against him. It is,
therefore, prayed to dismiss contempt petitions against him.
counter-affidavit is also filed by respondent Nos. 2 and 3 controverting the
averments and denying the allegations of the petitioners in the Contempt
Petitions. It was stated that during the operation of interim 2 order dated
April 26, 2004, they had neither executed any sale deed nor created third party
interest in the suit property. The cheques said to have been accepted by them
during interim orders represented the amount paid towards consideration of the
apartment booked prior to the issuance of interim orders.
26. Regarding the allegation
that the title of the suit property was described as `clear and marketable', it
was stated that as per the order of the Court, what was required to be
mentioned was the pendency of the proceedings. In all the sale deeds, executed
by the respondents, specific recital was made that the transaction was subject
to pendency of civil suit and final decision therein.
27. Regarding the
third allegation of not giving notice to the petitioners, it was stated that no
`prior' notice was required as per the order of this Court. It was stated;
a. in order to
protect the interest of the parties, this Hon'ble Court passed a conditional
order stating 2 inter alia "any third party rights which is created shall
be done after notice to the petitioners". This Hon'ble Court has not used
the word "prior" as alleged. This Hon'ble Court had desired that as
and when third party rights are created, the petitioners should be duly
informed. The purpose of such information was to enable the petitioners to
protect their interest by impleading such third parties in the pending suit.
initially, by pursis dated 1.3.2005, the petitioners were given prior
intimation about the creation of third party rights.
it was found that out of the 11 sale deeds which were proposed to be executed
and about which prior intimation by pursis dated 1.3.2005 was given - 7 sale
deeds could not be executed for quite some time, as the deal could not be
finalized. Further, before executing the sale deeds, 2 buyers/third
parties/allottees got the deals transferred in some other name, viz. name of
28. Hence, as per
legal advice obtained, the intimation was being submitted before the Hon'ble
Civil Court after taking endorsement of Advocate for the petitioner.
29. It was further
stated by respondent Nos. 2 and 3 that originally land bearing Survey Nos.
459/2, 464, 465, 466/1 and 466/2, admeasuring 26.608 Sq.M. was jointly
purchased by Chandrakant Dhulabhai Patel and Chandulal Muljibhai Parikh in
1961. In 1990, however, an understanding had been arrived at between the heirs
and legal representatives of Chandulal Parikh and Chandrakant Dhulabhai Patel
and as per partition, 50% land situated on the western side (Part `A') fell to
the share of Chandrakant Patel whereas 50% land on the eastern side (Part `B')
came to the share of Parikh family. It was further stated that respondent Nos.
2 and 3 entered into Development Agreement with Parikh family for 50% eastern
side land (Part `B') which came to the share of Parikh family and also with
respondent No. 1 Chandrakant Patel for western side of land (Part `A'). The
scheme was thus jointly promoted for part `A' land and part `B' land. In course
of time, property `A' became 2 disputed property, but there was no dispute as
to property of part `B'. It was also stated that part `B' property abuts 30
metres wide road while part `A' property abuts 40 meters wide T.P. Road. Thus,
part `A' property (suit property) was having better location and higher
30. Respondent Nos. 2
and 3 admitted that Madhuben Rohit and Jasodaben Thakor deposited Rs. two lacs
on October 15, 2004 for booking one of the shops which was to be constructed on
Part `B' property. But after the disposal of Special Leave Petitions on January
10, 2005, the injunction came to an end regarding part `A' property. Under the
circumstances, request of Madhuben and Jasodaben for allotment of shop in part
`A' property instead of part `B' property was favourably considered and
accepted. Cases of Hemlataben Shah, Rashmikaben and Ranjit Gulati were
identical. Sale-deed in favour of Dr. Tolaram Popat was executed on January 24,
2005, i.e. after final disposal of 2 SLP and there was no interim injunction
at that time.
31. It was,
therefore, submitted that respondent Nos. 2 and 3 had not created any right in
favour of third party during the operation of interim order and there was no
question of taking proceedings under the Contempt of Courts Act.
32. Regarding notice
to petitioners, the respondents stated that pursis, Ex. 88 was filed in the
trial Court wherein details had been supplied in respect of 11 transfer deeds
which were to be executed. Thereafter, again pursis, Ex. 106 was filed on
September 01, 2005 in which all details were given. Thus, they have not
violated the order of this Court.
33. Finally, it was
prejudice to the above, the respondents tender their unconditional apology to
this Hon'ble Court."
affidavit-in-rejoinder, the petitioners have stated that after examining 2
oral and documentary evidence, the competent Court passed a decree in favour of
plaintiffs declaring shares of plaintiffs and defendants.
the respondents disposed of several properties. It was reiterated that
illegally and with mala fide intention, the respondents created third party
interest in gross defiance of interim orders and by making inconsistent and
contradictory statements. A false statement was made by respondents in sale
deeds and in agreements to sell that the title of the respondents over the
property was `clear and marketable'. As to properties part `A; and `B', it was
stated that the contention was wholly irrelevant inasmuch as the trial Court
decreed the suit by holding the plaintiffs as joint owners of the property.
35. Further affidavit
was thereafter filed by respondent Nos. 2 and 3 on February 25, 2008 on the
question of title deeds. It was stated that in sale deeds, a statement was made
that "third party has no right, title, interest or 2 claim and the property
(subject-matter of sale deed) was not under attachment". But it was also
stated that the suit was pending and the sale-deeds were executed subject to
final decision in the suit. Thus, the respondents had acted bona fide. They
have not only notified in the sale-deeds the pendency of civil suit but also
have gone a step further and stated that the sale-deeds were being executed
subject to final decision in the pending suit. It was, therefore, submitted
that the Contempt Petitions should be dismissed.
36. From the facts
stated above, it is proved that there is breach of interim orders passed by
this Court. So far as the defence as to properties falling in parts `A' and `B'
is concerned, in our opinion, it is clearly an after thought and the plea has been
put forward without there being anything on record. Though it was stated that
initially, Madhuben, Hemlataben, Rashmikaben and Ranjit Gulati were 2 given
shops in part `B' property, no such agreements/deeds have been placed on
record. It was then stated that after interim relief was vacated and request
was made by them to allot them shops in part `A' property, no evidence/material
has been adduced by the contemners. A stereo-type affidavits have been filed
sworn on one and the same day, July 29, 2006 after contempt notice was served
upon the respondents. Even the sale-deeds do not recite part `A' or `B' of the
property or the fact that earlier the allottee was granted shop in part `B'
property but after the disposal of the Special Leave Petitions, request was
made by the purchaser to convert the allotment from part `B' property to part
`A' property. The so-called defence, therefore, is apparently to avoid
consequences of contempt proceedings.
37. Moreover, the
defence does not appear to be probable. Normally, no reasonable and prudent
man/woman who purchases immovable property with a `clear' title would request
the 2 owner of the property to allot him/her property over which his title is
not clear, which is the subject-matter of litigation, for which a suit is
pending and the matter is sub-judice in a Court of law.
38. Further, the
pleas advanced by respondent Nos. 2 and 3 are inconsistent, conflicting and
irreconcilable. On the one hand, it was asserted that during the operation of
the interim order, dated April 26, 2004, respondent Nos. 2 and 3 had not
created third party interest in the suit property and the cheques said to have
been accepted by them during the pendency of proceedings `represented the
amount paid towards consideration of the apartment booked prior to the issuance
of the interim orders,' while on the other hand, it was stated that initial
booking was for shops to be constructed on part `B' property, but subsequently,
after dismissal of Special Leave Petitions, at the request of purchasers, 3
allotment was converted from part `B' property to part `A' property. If it were
so, there was no question of raising a plea that the acceptance of cheques
during the pendency of the interim orders represented the amount of
consideration booked prior to the issuance of interim orders. If initial
booking and payment was in relation to part `B' property, it was immaterial and
altogether irrelevant whether it was prior or subsequent to filing suit by the
plaintiffs or grant of interim orders either by the High Court or by this
39. We are,
therefore, fully convinced that during the pendency of the proceedings and in
spite of interim orders passed by this Court, agreements have been entered into
by the contemners, cheques had been accepted and consideration had been
received at least in part. So far as the first order passed by this Court on
April 26, 2004 is concerned, there was total prohibition from creating any
interest in favour of third party either by sale, mortgage, 3 transfer,
assignment, gift or `in any other manner whatsoever'. Hence, entering into an
agreement or acceptance of full or even part consideration would be hit by the
In our considered
view, it would amount to `creation of interest' prohibited by this Court.
40. The matter did
not end there. Special Leave Petitions were filed in this Court by the
petitioners against an interim order not granting injunction below Application,
Though the High Court
granted such injunction, but it was vacated at the time of dismissal of Appeal
from Order. But all the parties to the suit were aware that the main matter
(suit) was pending and rights of contesting parties in the suit-property were
yet to be decided. In the circumstances, `injunction' or `no injunction', the
title of the defendants was `under challenge'. It was `cloudy' and unless and
until the suit is decided, it cannot be said 3 that they had `clear and
Though the legal
position is clear and beyond controversy, we find that an express, unambiguous
and unequivocal statement is made by the contemners in all sale deeds that
their title to the property is `clear and marketable'. It was also stated that
they were independent owners, possessors and occupiers of the property and
there was no right, interest, part share, claim of anybody else therein.
41. It was, no doubt,
submitted by the learned counsel for the contemners that it was specifically
and clearly stated that a suit was pending in the Court of Civil Judge (Senior
Division), Vadodara and it was also clarified that the documents were executed
subject to the final decision in the suit. It was further submitted that if the
owner of the property does not state that he has title over the property he
seeks to transfer and that such title is `clear and marketable', no reasonable
and prudent man would come forward to purchase 3 such property. To this
extent, the learned counsel is right. That, however, does not mean that in such
case, a person whose title is challenged and the proceedings are pending will
be permitted to say that his title is `clear and marketable' and there is no
impediment on the contemners from transferring the property in favour of
42. Finally, in any
case, there is clear breach and violation of the order of this Court, i.e.
order, dated January 10, 2005 so far as `notice' to the petitioners is
concerned. It is not disputed even by the contemners that in some cases, notice
as to creation of third party interest had been given after creation of such
interest by filing pursis in the Court.
43. The learned
counsel for the contemners half-heartedly submitted that this Court had not
ordered that `prior' notice should be given to the petitioners regarding
creation of third 3 party rights and hence, there was no violation of the
direction of the Court.
44. We are unable to
agree with the submission. This Court has stated; "Any third party right
which is created shall be done after notice to the petitioners." In our
view, the direction has only one meaning and it is that third party interest
can only be created after notice to the petitioners. Admittedly, that was not
done, at least, in few cases. It is, therefore, clear that there is violation
and disobedience of the orders of the Court and the contemners are responsible
for such act.
45. From the overall
considerations of the matter in the light of series of events, we hold that the
respondents-contemners have disregarded and violated the orders passed by this
Court on April 26, 2004 and January 10, 2005.
46. The next question
is whether for disobedience of the order passed by this Court, 3 the
respondents/contemners are liable to punishment? In this connection, we may
refer to some of the legal provisions. Article 129 of the Constitution declares
this Court (Supreme Court) to be "a Court of Record having all the powers
of such a Court including the power to punish for the contempt of itself".
Clause (c) of Section 94 of the Code of Civil Procedure, 1908 enacts that in
order to prevent the ends of justice from being defeated, the Court may, commit
the person guilty of disobedience of an order of interim injunction to civil
prison and direct his property be attached and sold. Rule 2A of Order XXXIX as
inserted by the Code of Civil Procedure (Amendment) Act, 1976 (Act 104 of 1976)
2A. 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 3 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.
(2) No attachment
made under this rule shall remain in force for more than one year, at the end
of which time, if the disobedience or breach continues, the property attached
may be sold and out of the proceeds, the Court may award such compensation as
it thinks fit to the injured party and shall pay the balance, if any, to the
party entitled thereto.
47. The provisions of
the Contempt of Courts Act, 1971 have also been invoked.
Section 2 of the Act
is a definition clause.
Clause (a) enacts
that contempt of court means `civil contempt or criminal contempt'. Clause (b)
defines `civil contempt' thus;
(b) `civil contempt'
means wilful disobedience to any judgement, decree, direction, order, writ or
other process of a court or wilful breach of an undertaking given to a court.
48. Reading of the
above clause makes it clear that the following conditions must be satisfied
before a person can be held to have committed a civil contempt;
(i) there must be a
judgment, decree, direction, order, writ or other process of a Court (or an undertaking
given to a Court);
(ii) there must be
disobedience to such judgment, decree, direction, order, writ or other process
of a Court (or breach of undertaking given to a Court); and (iii) such
disobedience of judgment, decree, direction, order, writ or other process of a
Court (or breach of undertaking) must be wilful.
49. Section 12
provides punishment for contempt of Court. The relevant part of the provision
S. 12 - Punishment
for contempt of court--(1) Save as otherwise expressly provided in this Act or
in any other law, a contempt of court may be punished with simple imprisonment
for a term which may extend to six months, or 3 with fine which may extend to
two thousand rupees, or with both:
Provided that the
accused may be discharged or the punishment awarded may be remitted on apology
being made to the satisfaction of the court.
apology shall not be rejected merely on the ground that it is qualified or
conditional if the accused makes it bona fide.
anything contained in any law for the time being in force, no court shall
impose a sentence in excess of that specified in sub-section (1) for any
Contempt either in respect of itself or of a court subordinate to it.
anything contained in this section, where a person is found guilty of a civil
contempt, the court , if it considers that a fine will not meet the ends of
justice and that a sentence of imprisonment is necessary shall, instead of
sentencing him to simple imprisonment, direct that he be detained in a civil
prison for such period not exceeding six months as it may think fit.
. . . . . . . . .
50. In Ashok Paper
Kamgar Union v. Dharam Godha & Ors., (2003) 11 SCC 1, this Court had 3 an
occasion to consider the concept of `wilful disobedience' of an order of the
Court. It was stated that `wilful' means an act or omission which is done
voluntarily and with the specific intent to do something the law forbids or
with the specific intent to fail to do something the law requires to be done,
that is to say, with bad purpose either to disobey or to disregard the law.
According to the Court, it signifies the act done with evil intent or with a
bad motive for the purpose. It was observed that the act or omission has to be
judged having regard to the facts and circumstances of each case.
51. In Kapildeo
Prasad Sah & Ors. v. State of Bihar & Ors., (1999) 7 SCC 569, it was
held that for holding a person to have committed contempt, it must be shown
that there was wilful disobedience of the judgment or order of the Court. But
it was indicated that even negligence and carelessness may amount to 4
contempt. It was further observed that issuance of notice for contempt of Court
and power to punish are having far reaching consequences, and as such, they
should be resorted to only when a clear case of wilful disobedience of the
court's order is made out. A petitioner who complains breach of Court's order
must allege deliberate or contumacious disobedience of the Court's order and if
such allegation is proved, contempt can be said to have been made out, not
otherwise. The Court noted that power to punish for contempt is intended to
maintain effective legal system. It is exercised to prevent perversion of the
course of justice.
52. In the celebrated
decision of Attorney General v. Times Newspaper Ltd.; 1974 AC 273 :
(1973) 3 All ER 54 :
(1973) 3 WLR 298; Lord Diplock stated:
"There is an
element of public policy in punishing civil contempt, since the administration
4 of justice would be undermined if the order of any court of law could be
disregarded with impunity."
53. In Anil Ratan
Sarkar & Ors. v. Hirak Ghosh & Ors., (2002) 4 SCC 21, this Court held
that the Contempt of Courts Act has been introduced in the statute-book for
securing confidence of people in the administration of justice. If an order
passed by a competent Court is clear and unambiguous and not capable of more
than one interpretation, disobedience or breach of such order would amount to
contempt of Court. There can be no laxity in such a situation because otherwise
the Court orders would become the subject of mockery.
own understanding of the Court's order would not be a permissible defence. It
was observed that power to punish a person for contempt is undoubtedly a
powerful weapon in the hands of Judiciary but that by itself operates as a
string of caution and 4 cannot be used unless the Court is satisfied beyond
doubt that the person has deliberately and intentionally violated the order of
the Court. The power under the Act must be exercised with utmost care and
caution and sparingly in the larger interest of the society and for proper
administration of justice delivery system. Mere disobedience of an order is not
enough to hold a person guilty of civil contempt. The element of willingness is
an indispensable requirement to bring home the charge within the meaning of the
54. In Commissioner,
Karnataka Housing Board v. C. Muddaiah, (2007) 7 SCC 689, one of us (C.K.
Thakker, J.) observed that once a direction is issued by a competent Court, it
has to be obeyed and implemented without any reservation. If an order passed by
a Court of Law is not complied with or is ignored, there will be an end of Rule
of Law. If a party against whom such order is made has grievance, 4 the only
remedy available to him is to challenge the order by taking appropriate
proceedings known to law. But it cannot be made ineffective by not complying
with the directions on a specious plea that no such directions could have been
issued by the Court.
Upholding of such
argument would seriously affect and impair administration of justice.
55. In All Bengal
Excise Licensees Association v. Raghabendra Singh & Ors., (2007) 11 SCC
374, this Court considered several cases and observed that wilful and
deliberate act of violation of interim order passed by a competent Court would
amount to contempt of Court.
56. A reference in
this connection may also be made to a decision of this Court in Tayabbhai M.
Bagasarawala v. Hind Rubber Industries (P) Ltd., (1997) 3 SCC 443. In that
case, the plaintiff-landlord filed a suit 4 against the defendant-tenant in
the City Civil Court for permanent injunction restraining the defendant from
carrying on construction in the suit premises. Ad interim injunction was
granted by the Court. Defendant's application for vacating injunction was
dismissed. The defendant, however, committed breach of injunction. The
plaintiff, hence, filed an application under Order XXXIX, Rule 2-A of the Code.
The defendant came forward and raised an objection as to jurisdiction of the
Court and power to grant injunction. The High Court, ultimately, upheld the
objection and ruled that City Civil Court had no jurisdiction to entertain the
suit. It was, therefore, argued by the defendant that he cannot be punished for
disobedience of an order passed by a Court which had no jurisdiction to
entertain a suit or to grant injunction. The High Court upheld the contention.
The plaintiff approached this Court.
57. This Court
observed that until the question of jurisdiction had been decided, the City
Civil Court possessed power to make interim orders. The Court could also
enforce them. A subsequent decision that the Court had no jurisdiction to
entertain the suit did not render interim orders passed earlier non est or
without jurisdiction. A party committing breach of such orders could not escape
the consequences of such disobedience and violation thereof. Accordingly, the
Court held the defendant guilty for intentionally and deliberately violating interim
order and convicted him under Rule 2-A of Order XXXIX of the Code and sentenced
him to one month's imprisonment.
58. Speaking for the
Court, Jeevan Reddy, J. stated;
"Can it be said
that orders passed by the Civil Court and the High Court during this period of
six years were 4 all non est and that it is open to the defendants to flout
them merrily, without fear of any consequence. The question is whether the said
decision of the High Court means that no person can be punished for flouting or
disobeying the interim/ interlocutory orders while they were in force, i.e.,
for violations and disobedience committed prior to the decision of the High
Court on the question of jurisdiction. Holding that by virtue of the said
decision of the High Court (on the question of jurisdiction), no one can be
punished thereafter for disobedience or violation of the interim orders
committed prior to the said decision of the High Court, would indeed be
subversive of the Rule of Law and would seriously erode the dignity and the
authority of the courts. (emphasis supplied)
59. From the above
decisions, it is clear that punishing a person for contempt of Court is indeed
a drastic step and normally such action should not be taken. At the same time,
however, it is not only the power but the duty of the Court to uphold and
maintain the dignity of Courts and majesty of law which may call for such
extreme step. If for proper administration of justice and to ensure due
compliance with 4 the orders passed by a Court, it is required to take strict
view under the Act, it should not hesitate in wielding the potent weapon of
60. Now, in the
instant case, both the orders passed by this Court on April 26, 2004 and
January 10, 2005, were explicitly clear.
The first order
totally prohibited/restrained the respondents/contemners from creating any
interest whatsoever in the suit property. As held by us, in spite of the said
order, interest had been created by the contemners in the suit property. But
even otherwise there is intentional disobedience and wilful breach of the
subsequent order dated January 10, 2005 inasmuch as transactions had been
entered into without issuing notice to the petitioners. We have already held
that they could not have been entered into by the respondents before issuance
of notice to the petitioners. The respondents were clearly aware of the order.
In fact, the 4 action was sought to be defended and justified on the ground
that the Court had not directed `prior' notice, and as such, non-issuance of
notice before entering into sale transactions would not amount to disobedience
of the order of the Court. We are unable to uphold the contention. In the
circumstances it must be held that the disobedience of the order by the
contemners was wilful, intentional and deliberate.
61. The question then
is whether the case calls for imposition of punishment on the contemners. The
learned counsel for the contemners submitted that in the affidavit in reply,
the respondents have stated that if this Court comes to the conclusion that
they had committed contempt of Court, the Court may accept unconditional and
unqualified apology and may discharge notice. The counsel submitted that the
statutory provision itself enacts that no apology shall be rejected merely on
the 4 ground that it is qualified or conditional [Explanation to Section
62. We must frankly
admit our inability to agree with the learned counsel. In the light of what is
stated above, we are convinced that the contemners have intentionally and
deliberately violated the orders of the Court.
We are also convinced
that the orders were clear, unambiguous and unequivocal having one and only one
meaning. Wilful and deliberate disobedience of the orders passed by the apex
Court of the country can never be said to be bona fide, honest or in good
faith. If it is so, the action calls for serious view to ensure proper
administration of justice.
63. In Hiren Bose,
Re, AIR 1969 Cal 1 : 72 Cal WN 82, the High Court of Calcutta stated;
"It is also not
a matter of course that a Judge can be expected to accept any apology. Apology
cannot be a 5 weapon of defence forged always to purge the guilty. It is
intended to be evidence of real contrition, the manly consciousness of a wrong
done, of an injury inflicted and the earnest desire to make such reparation as
lies in the wrong-doer's power. Only then is it of any avail in a Court of
justice But before it can have that effect, it should be tendered at the
earliest possible stage, not the latest. Even if wisdom dawns only at a later
stage, the apology should be tendered unreservedly and unconditionally, before
the Judge has indicated the trend of his mind.
Unless that is done,
not only is the tendered apology robbed of all grace but it ceases to be an
apology It ceases to be the full, frank and manly confession of a wrong done,
which it is intended to be".
64. It is
well-settled that an apology is neither a weapon of defence to purge the guilty
of their offence; nor is it intended to operate as a universal panacea, it is
intended to be evidence of real contriteness [Vide M.Y.
Shareaf v. Hon'ble
Judges of the High Court of Nagpur; (1955) 1 SCR 757 : M.B. Sanghi v. High
Court of Punjab & Haryana, (1991) 3 SCR 312].
65. In T.N.
Godavarman Thirumulpad through 5 the Amicus Curiae v. Ashok Khot & Anr.,
2006 (5) SCC 1, a three Judge Bench of this Court had an occasion to consider
the question in the light of an `apology' as a weapon defence by the contemner
with a prayer to drop the proceedings. The Court took note of the following
observations of this Court in L.D. Jaikwal v. State of U.P., (1984) 3 SCC 405:
"We are sorry to
say we cannot subscribe to the 'slap-say sorry- and forget' school of thought
in administration of contempt jurisprudence. Saying 'sorry' does not make the
slipper taken the slap smart less upon the said hypocritical word being
Apology shall not be
paper apology and expression of sorrow should come from the heart and not from
the pen. For it is one thing to 'say' sorry-it is another to 'feel'
66. The Court,
therefore, rejected the prayer and stated;
"Apology is an
act of contrition.
Unless apology is
offered at the 5 earliest opportunity and in good grace, the apology is shorn
of penitence and hence it is liable to be rejected. If the apology is offered
at the time when the contemnor finds that the court is going to impose
punishment it ceases to be an apology and becomes an act of a cringing
67. Similar view was
taken in other cases also by this Court.
68. We are also
satisfied that the so- called apology is not an act of penitence, contrition or
regret. It has been tendered as a `tactful move' when the contemners are in the
tight corner and with a view to ward off the Court. Acceptance of such apology
in the case on hand would be allowing the contemners to go away with impunity
after committing gross contempt of Court. In our considered opinion, on the
facts and in the circumstances of the case, imposition of fine in lieu of
imprisonment will not meet the ends of justice.
69. Considering the
facts and circumstances in their entirety, in our opinion, ends of justice
would be served if we hold the respondents/contemners guilty under Section 12
of the Contempt of Courts Act, 1971, read with Section 94(c) and Rule 2-A of
Order XXXIX of the Code of Civil Procedure, 1908 as amended by the Code of
Civil Procedure (Amendment) Act, 1976 and Article 129 of the Constitution and
order the respondents- contemners to undergo simple imprisonment for a term of
two weeks i.e. fourteen days.
accordingly. The Contempt Petitions are disposed of.
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