Bishamber Dayal vs Harish Chand and Others

S.S. Sodhi,/pjudge>, J.—Disobedience of the order of this Court of October 15, 1985, restraining the Respondents from alienating the land in suit or changing the nature of the property is what is complained of in this application under Order 39 Rule 2-A of the Code of Civil Procedure.

The matter here arises from a suit for specific performance filed by the Plaintiff-Bishamber Dayal against Respondent 1 Harish Chand and Respondents 2 to 6. This suit being founded upon an agreement for the sale of 17 kanals of land in Faridabad executed by the Respondent-Harish Chand in favour of the Plaintiff Bishamber Dayal on March 12, 1980. Under this agreement, a sum of Rs. 25,000/- was paid as earnest money.

It is after this agreement for sale of March 12, 1980 had been entered into that Respondents 2 to 6 come into the picture, as vendees of 560 square yards of land out of the land covered by the said agreement. Respondent-1 Harish Chand having transferred this land (i. e. 560 square yards) to them by five separate sale-deeds executed between May 27, 1982 and July 12, 1982.

This was the situation, when the Plaintiff-Bishamber Dayal filed the suit for specific performance on December 22, 1982 against Respondents 1 to 4 to enforce the March 12, 1980 agreement for sale. The trial court dismissed this suit on March 22, 1985, but with the specific finding that the sales made by Respondent-Harish Chand to Respondents 2 to 6 were vague. This dismissal of the suit was later challenged in appeal, but that too was dismissed on August 1, 1985 and this is what led to the filing of the present Regular Second Appeal in this Court

To continue with the narrative of events on June 26, 1985, during the pendency of the appeal before the lower appellate court, Respondent Harish Chand executed a registered 99-years lease in respect of the entire land in suit, that is, 17 kanals in favour of Respondent 7 Nihal Singh. This Respondent, in turn, on July 31, 1985, sold his lease hold rights in 7 kanals of this land to Respondent 8 Harish Chand.

The Regular Second Appeal filed in this Court was admitted to hearing on August 19, 1985 and an interim order was passed on that day restraining the Respondents from making any alienation of the land in suit. On the same day, that is, August 19, 1985 Respondents 7 and 8, namely ; Nihal Singh and Harish Chand, were also ordered to be impleaded as parties to the appeal.

After notice, the application under Order 39 Rules 1 and 2 of the CPC (C. M. No. 2491-C of 1985) came up for hearing on October 15, 1985. The prayer in this application being for ''an ad interim injunction restraining Respondents-Nihal Singh son of Bhobal Ram and Harish Chand son of Mehar Singh-from either changing the nature of the property in suit or from transferring the same in any manner during the pendency of the above noted appeal in this Hon''ble Court". In the presence of Mr. J. S. Malik, counsel for respon-dants 2 to 5 and Mr B. S. Malik, counsel for Respondent 8 and of course, counsel for the Appellants, the order passed thereon, on that day was ''ordered as prayed''. It is the violation of this order that is now complained of.

There are admittedly some constructions on the land in suit which have been made by some of the Respondents here. This construction is said to be of about 6 rooms with verandah in front of each at different places on the land in suit.

According to the applicants, they being the legal representatives of the Plaintiff-Bishamber Dayal (deceased), the Respondents obeyed the order of this Court of October 15, 1985 till July, 1986 after which they constructed four buildings in Khasra No: 133/22 and two in Khasra No. 133/19/2 Some of these buildings, they say were completed while others were still under construction.

The stand taken by Respondents 2 to 6 in their reply is that they had completed the construction on the land in suit long before July, 1986 and there was thus no question of them having disobeyed any orders of Court. Respondent-8-Harish Chand, on his part, denied having raised any construction on his portion of the land, while Respondent-7 Nihal Singh did not chose to file any reply.

Considering the disputed questions of fact emerging from the averments made in the application and the replies filed thereto, the matter was remitted to the District Judge, Faridabad for recording the evidence of the parties after affording them due opportunity for this purpose.

Before proceeding further, mention must be made of the con duct and role of Respondent-7. Nihal Singh in these proceedings which would also be relevant in dealing with his application for setting aside ex parte proceedings against him. This Respondent did not care to appear in the appeal despite having been served and was consequently proceeded against ex parte on January 27, 1987. Later when on March 12, 1987 the matter was sent to the District Judge, Faridabad for recording evidence a specific direction was made that if this Respondent appears, before the District Judge proceeds to record evidence, due opportunity to adduce evidence shall also be offered to him. Respondent-7, did not, however, appear before the District Judge, but now after evidence has been recorded by the District Judge and forwarded to this Court, he seeks the setting aside of the ex parte proceedings against him and permission to participate in further proceedings. The application in this behalf, was filed on October 14, 1987. It is, on the face of it, barred by time, as the ex parte proceedings had been ordered against him as far back as January 27, 1987. It is significant to note that there is no explanation to account for this delay. Otherwise too. this application makes interesting reading, inasmuch as. it has been stated therein that his presence or absence would not make any difference to the decision of the appeal as he had no interest in the land in suit or in the present litigation. It was also denied that there had been any disobedience by him of any orders of this Court. During arguments, Mr Harsh Aggarwal, counsel for Respondent-7 added further by making a clear and categoric statement that both the registered 99-yeats lease of the land in suit executed in his favour by Respondent-1 Harish Chand on June 26, 1985 as also the sale by him of his lease hold rights in 7 kanals of land out of this land on July 31, 1985 in favour of Respondent-8 Harish Chand were false and fictitious documents. Such thus being the circumstances, no occasion is provided thereby for setting aside the ex parte proceedings against Respondent 7.

Coming back to the main point in issue, it will be seen that the controversy here hinges upon the time when the constructions were made on the land in suit and by whom and further whether it amounted to wilful disobedience of the order of this Court.

When admittedly, there are constructions on the land in suit and made by the Respondents, they were obviously the best persons to state when this was done. There was no clear or straight-forward answer forthcoming from the counsel for the Respondents, when pointedly asked to mention the time when these constructions were made. Counsel was constrained to turn to the reply of Respondents 2 to 6 when confronted with this question. In the return, all that was stated was that the answering Respondents had completed the constructions long before July 1986 There is, however, no mention in this reply when this construction was started and completed. This cannot, but warrant an adverse inference against the Respondents.

In order to establish their case that these constructions were made by Respondents Nihal Singh and Harish Chand and that too after the order of this Court of October 15, 1585, the applicants examined A. W. 6-Suresh Chand, the legal representative of the Plaintiff-Bisham-ber Dayal who deposed that it was in the first week of July 1986 that Nihal Singh and Harish Chand Respondents 7 and 8 started raising construction on the land in suit and that they did not desist from doing so despite he and his father asking them not to do so. Suresh Chand further deposed that on July 16, 1986, an application exhibit A/11 was made by his father Bishamber Dayal to the Chief Administrator, Faridabad Complex Administration complaining against the construction being made on the land in suit by these two Respondents. Later, on September 1, 1986, a reminder exhibit A/12 was also sent. Not only this, a complaint exhibit A/13 too was made to the police in this behalf both by him and his father Bishamber Dayal.

Further, it was the testimony of A. W. 6 Suresh Chand that on July 22, 1986, his father Bishamber Dayal had got hand-bills printed regarding the construction being made on the land in suit by Respondents-Nihal Singh and Harish Chand. Exhibit A/8 being one such hand-bill

To corroborate the testimony of A. W. 6 Suresh Chand, the applicants examined A. W 1 Vijay Kumar from the office of the Faridabad Complex Administration who deposed to the receipt in their office of the application exhibit A/11 and the reminder there to exhibit A/12 on September 1, 1986. Both the application and the reminder, he deposed, were sent to the Building Inspector of the Faridabad Complex Administration and an entry to that effect was made in the relevant Dispatch Register.

The important evidence to note here is the statement of A. W. 3-Ram Krishan Verma, who was the Building Inspector of the Faridabad Complex Administration at that time. He deposed to the receipt by him of an application by Bishamber Dayal regarding unauthorized construction. He stated that on receipt of that application he inspected the site, prepared a plan and also made a report Exhibit A/1 being a copy of his report. Further, he deposed to notices under Sections 208, and 209 of the Haryana Municipal Act exhibits A/2 and A/3 being issued to Respondents Nihal Singh and Harish Chand in this respect.

The Building Inspector Ram Kishan Verma went on to depose that when on July 28, 1986, it was found that the persons concerned had not complied with the notices under Sections 308 and 209 of the Haryana Municipal Act, he proposed action against them u/s 235 of the Haryana Municipal Act and this was approved by the Administrator vide order on the notice exhibit A/4 A complaint exhibit A/5 u/s 209 of the Haryana Municipal Act was also filed in the court of the Chief Judicial Magistrate, Faridabad.

A. W. 4-Satish Bareja proved the printing of the hand-bill exhibit A/8 at the instance of the Plaintiff Bishamber Dayal.

Finally, there is the testimony of A. W. 5 Suresh Chand, who deposed to having seen Nihal Singh and Harish Chand Respondents raising construction at the site on the land in suit.

The Respondents 2 to 6, on their part examined only R. W. I Shish Ram, who deposed that he, Tej Pali and Kharaiti Lal had raised construction on the land in suit long before stay was granted by this Court. In cross-examination, however, he admitted that before making this construction, no plan was filed in the office of the Faridabad Complex Administration for seeking permission to construct it

R. W. 2 Harish Chand Respondent-8, on his part, merely denied that any construction had been raised by him on any portion of the 7-kanals of land in his possession.

It will be seen that the clear and positive case of the applicants is that the construction on the land in suit had been made by Respondents-Nihal Singh and Harish Chand. Nihal Singh has not chosen to file any reply nor did he care to come into the witness-box Mr. Harsh Aggarwal, counsel for this Respondent, however, stated that no construction had been made or authorised by Nihal Singh and consequently, there would be no objection on his part to the demolition of any construction on the land in suit Respondent-8 Harish Chand also denied having made any construction. The making of constructions on the land in suit is, on the other hand, admitted by R W.l Shish Ram. According to him, constructions, were also made by Tej Pali and Kharaiti Ram.

The point to note here is that counsel for the Respondents could afford no explanation nor impute any motive for the applicants to falsely name Nihal Singh and Harish Chand as the two persons, who had actually made constructions on the land in suit, if, in fact, no construction had been made by them and the construction bad been made instead by Shish Ram, Tej Pali and Kharaiti Ram, as deposed to by Shish Ram. It would be pertinent here to also keep in view the documentary evidence placed on record by the applicants, particularly, the poster A/8 and the notices and reports made by the Faridabad Complex Administration regarding this construction. In all these notices, the offenders are named to be Nihal Singh and Harish Chand. Such being the state of evidence on record, it cannot, but be taken that the constriction on the land in suit has been made by Nihal Singh Respondent-7 and Harish Chand Respondent-8. Shish Ram who has admitted to making constructions must also be held liable, as also Raj Pali and Kharaiti Ram.

Further, the evidence of the applicants corroborated by the documentary evidence produced by them leaves no room for doubt that this construction was made after the restraining order passed by this Court in October, 1985.

Faced with this situation, Mr. A. N. Mittal, counsel for Respondents 2 to 6 and 8 sought to contend that the order of this Court was capable of two interpretations and there was thus no willful disobedience to it. The arguments being that in the first instance, the interim order passed was merely to restrain the Respondents from alienating the property in suit. Later when this interim order came up for confirmation on October 15, 1985 as the order passed was ''Ordered as prayed'', the Respondents understood it to be a confirmation of the earlier order restraining the Respondents from alienating the land and no more. In this behalf, counsel also adverted to the prayer clause in the application filed by the applicants and pointedly to the two reliefs mentioned there, namely; to restrain the Respondents from alienating the land or changing the nature of the property. The contention being that the use of the word ''or'' between these two reliefs implied that only one of the two reliefs was being sought This is indeed a stance that cannot stand scrutiny. It will be recalled that the order of October 15, 1985 was passed in the presence of Mr. J. S. Malik and Mr. B. S. Malik counsel for Respondents 2 to 5 and 8. Neither of these counsel have been examined in this case to support this stand of the Respondents, namely; how and what they understood the Court''s order to mean. Even otherwise, the prayer clause in the application was quite clear that both the reliefs were sought. No occasion is thus provided here for imputing any vegueness or doubt to create any misapprehension or misunderstanding with regard to the nature of the order passed, in the minds of the Respondents. It is well-settled that to escape the consequences of wilful disobedience of the order of the Court, merely ingenuity of counsel to discover equivocation cannot suffice. It would be apt to recall here the judgment of the Supreme Court in The The State of Bihar Vs. Rani Sonabati Kumari, ., where it was held that a party proceeded against under Order 39 Rule 2(3) of the CPC for disobedience of an order of injunction cannot be held to have willfully disobeyed the order provided two conditions are satisfied, namely (1) that the order was ambiguous and was reasonably capable of more than one interpretation, (2) that the party being proceeded against it in fact did not intend to disobey the order....." The question whether a party has understood an order in a particular manner and has conducted himself in accordance with such a construction, is primarily one of fact that where the material before the Court does not support such a state of affairs. the Court cannot attribute an innocent intention based on presumption for the only reason, that ingenuity of counsel can discover equivocation.

Seen in this light that there can be no escape from the conclusion that there has been wilful disobedience of the orders of this Court of October 15, 1985, on the part of Respondents 7-Nihal Singh ; respon-dent-8-Harish Chand as also Shish Ram, Tej Pali and Kharaiti Ram. This being so, these Respondents are directed to be taken into custody forthwith to be detained in civil prison for a period of three months and further that their properties immoveable, be attached in accordance with the provisions of Order 39 Rule 2-A read with the relevant Rules of Order 21 of the Code of Civil Procedure. This petition is disposed of accordingly.