Court on its own Motion vs Kuldeep Kapoor

Swatanter Kumar, J.—The law accepts a clear distinction between the initiation of contempt proceedings and notice to show cause as to why contempt proceedings be not initiated against a person. In the first situation the contemnor cannot show cause and in the second the contemnor can show cause that No. contempt proceedings be initiated against him for the reasons stated in such a reply. This situation can arise at various stages and in different forms. Sometimes during the pendency of judicial proceedings, such material may come to the notice of the Court which would indicate that the person has undermined the dignity of law, majesty of justice and conduct of such a party ex-facie is so contemptuous that it compels the Court to take certain action in accordance with law under the provisions of Contempt of Courts Act and even with the aid of provision of Article 215 of the Constitution of India. Kuldeep Kapoor (the Plaintiff in the main suit) and his associate namely Ashok Kapoor were issued notices to show cause why contempt proceedings be not initiated against them. On 23rd September, 2005, the Court while noticing that Kuldeep Kapoor has apparently tampered with documents which were relied upon by him before the Court, had been telling incorrect things in Court on solemn affirmation and had given incorrect addresses in the plaint to mislead the Court and attempted to undermine the majesty of justice and judicial process, as such directed issuance of show cause notice to the said person, which reads as under:? Before any further steps are taken, let a notice to show cause be issued to the Plaintiff as to why proceedings under the Contempt of Courts Act and Article 215 of the Constitution of India be not initiated against him and be dealt with in accordance with law. Plaintiff who is present in Court accepts notice. Copy of this order be given to him dasti. Reply to the show cause shall be filed within three days from today.?

Similar show cause notice was already issued to Mr. Ashok Kapoor vide order dated 10th September, 2005. In response to the show cause notice, Mr. Ashok Kapoor filed an affidavit on 22nd September, 2005. Still another reply to show cause was filed on 29th September, 2005 on behalf of the contemnor- Kuldeep Kapoor on 5th October, 2005. The notice to show cause as to why action under the Contempt of Courts Act be not taken against the Respondents necessitated for the following conducts/misdeeds of the contemnors:

(a) tampering of documents, agreement to sell, receipt which were relied upon and filed by the Plaintiff in Court;

(b) filing false affidavits in judicial proceedings before the Court with an intent to seek favourable orders in these proceedings;

(c ) intentionally giving incorrect addresses on the affidavits as well as in the pleadings with the intention to mislead the Court;

(d) making incorrect statements on oath before the Court.

Before the Court proceeds to discuss the merits or otherwise of the reply filed on behalf of the Respondents, reference to the facts of the case and the circumstances which compelled the Court to issue such a notice would be necessary which are as under:

FACTS of THE CASE

At this stage, it may be noticed that in the suit, the Plaintiff had also filed an application under Order 39 Rules 1 and 2 read with Section 151 CPC for grant of ad-interim injunction alongwith the suit. This application was contested by the Defendant. The factual controversy raised in the present application was also raised in that application. The facts giving rise to the suit and that application were decided by the Court vide its order dated 24th November, 2005 and the facts and determination of some of the controversies can thus usefully be referred to from that judgment at this stage itself. The relevant extracts thereof are reproduced hereunder:

The Plaintiff has filed a suit for recovery and damages of Rs. 21 lacs against the Defendant. Alongwith the suit, the Plaintiff also filed an application under Order 39 Rules 1 and 2 of the CPC (in short `the Code of Civil Procedure'') for grant of ad-interim injunction. When the suit and application came up for ex-parte hearing before the Court on 31st May, 2005, the Court passed the following order:

CS(OS) 821/2005

Register. Issue summons by registered AD and through approved courier returnable by 2nd September, 2005.

IA 4640/2005

Issue notice.

I have heard learned Counsel for the Plaintiff in support of the prayer for an ad interim ex-parte injunction restraining the Defendant from creating any third party interest in property situate at D-632, Chitranjan Park, New Delhi. Keeping in view the averments made in the plaint as also the fact that an agreement to sell had been executed between the parties in respect of the super structure and the land underlying the same at D-632, Chitranjan Park, New Delhi, I am of the view that a prima facie case has been made out for the grant of an ad interim ex-parte injunction. I am also of the view that in case the Defendant is not restrained from creating third party interest, the same shall result in multiplicity of legal proceedings and cause prejudice to the Plaintiff. I accordingly direct that pending further orders from this Court and till 2nd September, 2005, the Defendant shall not create any third party interest in property situate at D-632, Chitranjan Park, New Delhi without the leave of this Court.

Compliance with proviso to Order XXXIX Rule 3 CPC within one week.

Order dasti."

Besides filing written statement to the plaint and reply to the application of the Plaintiff, the Defendant upon service also filed an application under Order 39 Rule 4 praying for vacation of the ex-parte ad- interim injunction granted by the Court in terms of the above order. Thus, it will be appropriate to dispose of both these applications by a common order. The averments made in the plaint are that Plaintiff entered into an agreement to sell with the Defendant on 8th October, 2004 for purchase of entire second floor and the terrace thereupon of property situated at D-632, Chitranjan Park, New Delhi, for a sum of Rs. 10 lacs. The Defendant received part payment of Rs. 4 lacs from the Plaintiff towards the sale of the said property and acknowledged the receipt thereof in Clause 1 of the agreement. The Defendant also received a sum of Rs. 2,00,000/- from the Plaintiff towards sale consideration. For this, the Defendant executed a separate receipt on 20th October, 2004 In terms of Clause 7 of the agreement to sell, the Defendant was required to get the property in question converted into freehold from leasehold. On the property being converted, it was agreed between the parties that a sale deed would be executed. The Plaintiff claims to have visited the Defendant on number of occasions and requested him to execute the sale deeds in terms of the agreement to sell dated 8th October, 2004, but the request fell on deaf ears. Perturbed by the attitude of the Defendant, the Plaintiff claimed to have served a notice through counsel on 15th March, 2005 requesting the Defendant to execute sale deed or in alternative, the Plaintiff would proceed to recover the damages. The Defendant did not reply to the said notice. The Plaintiff visited the premises and noticed that the Defendant had got the premises demolished, thus intention on the part of the Defendant never to execute the sale deed became obvious. The Plaintiff felt that he was cheated by the Defendant and with ulterior motive had got the premises demolished. Vide notice dated 4th May, 2005, the Plaintiff called upon the Defendant to refund a sum of Rs. 6 lacs and pay as damages Rs. 15 lacs, thus claiming a total sum of Rs. 21 lacs. Copy of the notice has been placed on record. It is also averred in the plaint that fear of the Plaintiff was established when he received letter from the Defendant dated 19th May, 2005 on 20th May, 2005 stating therein that the amount allegedly lent to the Defendant by the Plaintiff had been received by the Plaintiff and the notice dated 4th May, 2005 does not stand. In these circumstances, according to the Plaintiff, the cause of action arose on 8.10.2004 when the parties entered into an agreement to sell, on 20th October, 2004 when additional consideration of Rs. 2,00,000/- was paid by the Plaintiff and on such dates when he visited and requested the Defendant to execute the sale deed and then on 15th March, 2005 when the notice was got issued by the Plaintiff to the Defendant, when the premises were got demolished and on 4th May, 2005 when the Plaintiff rescinded the contract and demanded the Defendant to pay damages alongwith refund of the part consideration and lastly the cause of action arose on 20th May, 2005 when the Plaintiff received the letter dated 19th May, 2005 from the Defendant. In these circumstances, the suit was filed by the Plaintiff praying for the following reliefs:

In the facts and circumstances of the case, the Plaintiff most respectfully prays that this Hon''ble Court may be pleased to pass the decree in favour of the Plaintiff and against the Defendant

A. Directing the Defendant to refund the part consideration of Rs. 6,00,000/- (Six Lacs) and pay damages of Rs. 15,00,000/- (Fifteen Lacs) to the Plaintiff,

B. Directing the Defendant pay interest on Rs. 6,00,000/- from the date of receipt till the date of payment at the rate of 18% per annum;

C. Directing the Defendant to pay the costs of the suit throughout;

D. Pass such other and further orders in the circumstances and facts of the case.?

In the written statement filed on behalf of the Defendant preliminary objection with regard to maintainability of the suit was taken that Plaintiff has not come to the court with clean hands as Plaintiff has forged and tempered with the documents on the basis of which the suit has been filed. While denying the averments made in the plaint, it was stated that the Plaintiff had entered into agreement dated 8th October, 2004 in regard to sale of second floor of the property at D-632, Chitranjan Park, New Delhi, but copy of the agreement annexed to the plaint is forged and tempered document and the veracity of the document has been denied. It has been averred that there has been insertions. It is stated that Ashok Kapoor was instrumental and he alongwith the Plaintiff has played a fraud upon the Defendant. It is stated that Defendant was suffering from severe financial problems and was also having ill health and had to undergo an open heart surgery on 26th August, 2004 During this time, he met Ashok Kapoor, who offered to help him financially by giving him loan of Rs. 1 lac. He came with a draft agreement to sell and instead of Ashok Kapoor, the Plaintiff''s name was mentioned and it was told to the Defendant that they were brothers. A total sum of Rs. 1 lac was paid by Shri Ashok Kapoor on behalf of Kuldeep Kapoor as a loan and to secure this loan amount, an agreement for sale of the second floor was entered into. Because of dire need, he had signed the papers. Out of Rs. 1 lac, an amount of Rs. 50,000/- was paid by way of cheque on 8th October, 2004, another amount of Rs. 20,000/- was given by way of cash on the same date for which a receipt was executed and on 20th October, 2004 balance amount of Rs. 30,000/- was given by Shri Ashok Kapoor to the Defendant. The original signed copy of the agreement to sell was not given to the Defendant, after taking signatures of the Defendant. Original copy of agreement to sell was taken by Ashok Kapoor on the pretext that he would get it signed from Kuldeep Kapoor and will return the same to the Defendant. This was never done. This document was never registered and later on has been tempered with and forged by the Plaintiff. It is specifically denied that he had received a payment of Rs. 4 lacs as stated at any point of time. The photo copy of the receipt dated 20th October, 2004 again is stated to be a forged document and the Defendant had enclosed alongwith his written statement photo copy of the document which he had signed and wherein he had received a sum of Rs. 30,000/- and not Rs. 2,00,000/- as now shown by the said receipt, after it has been tampered with by the Plaintiff. It is stated that the Defendant visited the Plaintiff on various occasions for getting the copy of the original sale agreement but Ashok Kapoor as well as Plaintiff evaded it on one pretext or the other. It is admitted that the Defendant had got the property demolished in March, 2005, but it is stated that Ashok Kapoor and the Plaintiff were trying to usurp the property of the Defendant by these illegal and unauthorised acts. A malafide offer was also made by Ashok Kapoor to develop the property by offering a sum of Rs. 20 lacs which was an unrealistic figure and while rejecting the same the Plaintiff had returned a sum of Rs. 1 lac to the Defendant by paying a sum of Rs. 50,000/- by way of bank draft No. 024067 dated 14th February, 2005 drawn on United Bank of India, C.R. Park, and another sum of Rs. 50,000/- was paid in cash on the same date. This was in terms of Clause 4 of the agreement between the parties. The Plaintiff though accepted the cash amount of Rs. 50,000/-, however, did not accept the demand draft dated 14th February, 2005 and instead asked for payment in cash. As such another sum of Rs. 50,000/- was given by way of cash to Kuldeep Kapoor and on asking for receipt of these payments, the Plaintiff said that the matter having been settled, there was No. need of issuing receipts for Rs. 1 lac and original agreement would be destroyed. Later on Ashok Kapoor informed that the original documents had been destroyed and that as an abundant caution, the Defendant vide his letter dated 4th April, 2005 informed the Plaintiff that he had paid the full loan amount back. This was sent by registered post but was received back with the comments that the addressee had refused to receive the same. Notice dated 4th May, 2005 is admitted to have been received by the Defendant which was replied and on 8th May, 2005 Kuldeep Kapoor came alongwith his brother Ashok Kapoor and his wife Mrs. Priya Kapoor. They issued a receipt acknowledging the receipt of full amount of the loan alongwith interest from the Defendant in February, 2005. Mrs. Priya Kapoor signed as a witness on this receipt. According to the Defendant, the Plaintiff has filed the present suit primarily to harass the Defendant who has already entered into an agreement with Smt. Anuradha Tandon and the possession of the property has been given in terms of the agreement between the parties. The authenticity of the documents filed by the Plaintiff has been questioned and it is prayed that the suit and the application is liable to be dismissed. While referring to the papers filed during the course of hearing, it was also stated that various cases of cheating and misappropriation of trust have been registered against the Plaintiff and his associates being FIR Nos. 190-201 dated 27th February, 2005 in relation to fraudulent hypothecation of property to the State Bank of Patiala for obtaining loan therefrom.

As already noticed, the Defendant had also filed an application under Order 39 Rule 4 for vacation of the interim injunction dated 31st May, 2005 on which the notice was directed to be issued to counsel for the Plaintiff vide order dated 4th August, 2005. In view of the stand taken by the Defendant, the Plaintiff was directed to file original documents in Court during the course of the day and it was also considered desirable that statement of Defendant is recorded in Court so as to narrow down the scope of controversy between the parties. In fact on 2nd September, 2005, the Court passed the following order :

Counsel for the Plaintiff shall file original documents in Court during the course of the day and supply a copy thereof to counsel for the Defendant.

List this case for directions and recording of statement of Defendant in Court on 5th September, 2005 as it appears to the Court that the controversy between the parties can be narrowed down to a very limited issue as it is a claim for recovery of money based on a written contract between the parties.

In view of the pleas taken by the parties in their pleadings, nature of the documents filed on record and apparent manipulation with the documents, the Court with an object to narrow down the controversy as well as the issue which may arise in the suit, recorded the statements of the parties. On 5th September, 2005, it was noticed by the Court that the parties were not stating true facts before the Courts and were bent upon telling lies. The Plaintiff in his statement under Order 10 CPC even denied that he knows any Mr. Ashok Kapoor who was the attesting witness to the document. The conduct of the parties before the Court compelled the Court even to call the attesting witness for recording statement, who intentionally avoided to answer the questions and patently told lies and later on apologise to the Court with clear undertaking that they would answer the question of the Court truthfully, correctly and without any demur. The documents were kept in a sealed cover. The Plaintiff as well as the attesting witness have not only failed to comply with their assurances given to the Court, but even refused to answer the questions in relation to the receipt which according to the Defendant had been tampered with by the Plaintiff. A typed print which has been rubbed off of Rs. 30,000/- in cash was clearly visible to naked eye but was subsequently hand-written below as Rs. 2 lacs. But on these, Plaintiff and the attesting witness refused to answer and even refused to read which could be seen by a naked eye in open Court. Vide order dated 10th September, 2005 keeping in view the blanks in the documents, over writing and rubbing off of the figures, documents were sent to the CFSL with a direction that the report be submitted before the next date of hearing.

A letter was received from the Director, CFSL wherein it was stated that certain more signatures of the witness were needed for proper comparison which were sent. Unnecessary requests for adjournments were made on behalf of the Plaintiff, which in the interest of justice were allowed. On 19th September, 2005, learned Counsel appearing for the Plaintiff filed an application under Order III Rule 4(2) CPC read with Chapter v. of the Delhi High Court (Original Side) Rules, 1967, praying that he be discharged from the case. As Plaintiff had No. objection, the counsel was discharged. Time was then granted to the Plaintiff to engage another counsel. As already noticed, statement under Order 10 CPC of the parties were deferred which were then recorded on 23rd September, 2005. On that date, report of the CFSL was received. The Plaintiff insisted on stating incorrect facts before the Court and in fact misled the Court. Even in the plaint the Plaintiff gave incorrect address and during his statement under Order 10 CPC failed to give any reason why he had given different addresses at different places. Not only this, the Plaintiff also failed to file replication despite the fact that the written statement on behalf of the Defendant was filed quite sometime back. Again a request was made which in the interest of justice was granted. In the order dated 27th September, 2005, the Court had clearly recorded that last opportunity is granted to the Plaintiff to file replication. Despite order dated 27th September, 2005 No. replication was filed. The order being pre-emptory the obvious result would have been to close the right of the Plaintiff to file replication. However, the learned Counsel appearing for the Plaintiff raised certain serious controversies with regard to supply of documents. The Court while declining to comment on the said controversy, still granted another opportunity to the Plaintiff to file replication. The Defendant had taken up the plea of the documents being tampered with and forged, which have been relied upon by the Plaintiff. On this basis and probably keeping in mind the report of the CFSL, an application u/s 340 Cr.PC was filed by the Defendant-applicant against the Plaintiff on which arguments were heard and orders were reserved on 7th October, 2005. The Plaintiff probably with an intention to further delay the proceeding in the suit also filed an application under Order 6 Rule 17 of the Code of Civil Procedure, for amendment of the plaint, being IA 7988/2005 which was got dismissed as withdrawn on 21st October, 2005. The arguments on the application under consideration were heard and judgment reserved on the same date.

Before I proceed to discuss the merits of the contentions raised, in view of the above narrated factual matrix, as it appears from the pleadings of the parties and the Court record, it will be most appropriate to notice that Dr. S.R.Singh, Director, Central Forensic Science Laboratory, Kendriya Karyalaya Parisar, Block No. 4, Lodhi Road, New Delhi had indicted the Plaintiff. This report was submitted in furtherance to the order of the Court. The relevant conclusion of the report reads as under:

II. The computer printout of photocopied document i.e. agreement to Sell (C-1) running into pages 7 to 10 tally with the original Agreement to Sell `X-1'' running into pages 2 to 5 at their corresponding pages 2 to 5 at their corresponding pages (parawise) on superimposition with specific enlargement. The typed matter of the photocopied document i.e. Receipt `C-2'' tally with the typed matter on the original Receipt `X'' on superimposition with specific enlargement.

III. Video Spectral Comparator-5000 examination reveal that the in used in Clause-4 of Agreement to Sell `X-1'' for addition of letter `d'' and the vertical lines deleting the Clause (nine in Nos. ) show difference in their luminescence. The two photographs, General Photograph marked `GP'' and the photograph showing difference of luminescence of ink marked as `DW'' are enclosed for ready reference.

IV. Scientific examination of the red encircled portion marked `Y'' on a Receipt `X'' observed physical disturbance of fibres on the surface of paper at certain places to remove the original writings. The original writings were partially deciphered using VSC-5000, Twin Video Comparator (TVC) and other scientific techniques which appear to be read as `Cash''. The photographs marked `A'', `B'' and `C'' showing partially visible strokes are enclosed herewith for ready reference.

V. Scientific examination of the red encircled portion marked Y-1 on Receipt `X'' observed physical disturbance of fibres on the surface of paper at certain portions to remove the original writings. However, some strokes consisting of figures 000 at unit, tenth and Hundred place and vertical stroke after the figure 0 at unit place is partially observed. The photograph using VSC-5000 marked as `D'' is enclosed for ready reference.

VI. It has not been possible to ascertain the original writings of physically deciphered portion marked Y and Y-1 on Receipt `X'' due to the reason that the contents of the original writings/printed matter is removed by some sharpen instrument.

VII. I have observed a number of individual handwriting characteristic similarities between the questioned signatures marked Q-25, Q-26 (appearing at ZY place on Agreement to Sell and ZY place on Receipt respectively) and specimen signatures marked S-1 to S-5 attributed to Ashok Kapoor which indicate that the writer of the specimen signatures marked S-1 to S-5 being the person responsible for writing the questioned signatures marked Q-25, Q-26.?

The agreement dated 8th October, 2004 was marked as X-1 and examined by the Forensic Experts. Clause 4 of the said agreement in the photo copy filed by the Defendant is not scored out while in the original agreement Clause 4 is scored by drawing horizontal lines. Both photo copy and the original even at Clause 4 bear signatures of the Defendant in addition to the page having been signed at 3 different places. According to the Plaintiff, it was after scoring the said clause that Defendant had put his signatures in his writing and with his pen at the same time. While according to the Defendant, he had only added the word `d'' to make correction in the word `mature'' to `matured''. In view of the report of the forensic expert, the version put forward by the Defendant appears to be correct. The ink used in scoring out Clause 4 of the original agreement is a different ink than the ink used for correction of the word `d'' and signatures of the Defendant. The ink of `d'' and signatures of the Defendant are in the same ink.

In relation to the receipt for a sum of Rs. 2 lacs dated 20th October, 2004, which was marked X, there is obvious variation in the stand taken by the Plaintiff. In the plaint a different version has been stated to the one taken by the Plaintiff in his statement recorded by the Court under Order 10 Code of Civil Procedure. This document was exhibited as Ex.P-17 during admission/denial of documents. According to the Plaintiff, he had paid a sum of Rs. 2 lacs in cash to the Defendant on that date while according to the Defendant only a sum of Rs. 30,000/- has been paid in cash and he had executed that receipt. This document was marked `X'' when it was sent to the forensic laboratory. As per the finding afore recorded by the experts, on top of the computer typed print `cash'' at encircled portion Y and 000 figures were removed by a sharp object. It was noticed by the Court during the course of recording of statements under Order 10 CPC of the parties and other persons that the expression `cash'' as well as Rs. 30,000/- at encircled portions `Y '' and `Y-1'' were even visible to naked eye. of course, the Plaintiff and attesting witnesses bluntly denied that they could see anything on mark X. Even according to the forensic experts as by that date considerable time has elapsed and the typed impressions were not so clearly visible, if the word `cash'' was typed which has not been confirmed by the forensic experts who have submitted the report after scientific examination and after putting it to TVC.

The Defendant has filed alongwith his written statement, photo copies of the agreement as well as the receipt in question only signed by him, which were marked as C-1 and C-2 respectively. There are blanks in different clauses of the agreement. Clause 4 has not been scored out, nor is witnessed by anybody and on the receipt the word `cash'' and Rs 30,000/-'' are clearly typed in computer print which as noticed above were visible even on the original document filed by the Plaintiff on the initial dates of hearing. At this stage and at least prima facie, there is nothing before the Court, in any way to take any other view than the one which has been expressed by the scientists. The scientist was even called vide order dated 9th September, 2005 to the Court and he explained the tampering of the documents.?

At the very outset it may be noticed that the contemnors had filed an application u/s 14 (2) of the Contempt of Courts Act, which was withdrawn vide order dated 30th September, 2005 with liberty to file the same at a subsequent stage, if need arises. The applicant had also filed an application dated 24th September, 2005 for receiving the documents. A copy of the order dated 10th September, 2005 was furnished to the contemnors by the Registry on 12th September, 2005. Further, vide order dated 27th September, 2005 the counsel was also granted liberty to inspect the court file. It was stated on behalf of the counsel that he could not inspect the file due to his other commitments. Again liberty was granted to conduct inspection, take certified copies and in fact, the reply on behalf of the contemnors was filed on 22nd September, 2005 and No. such objection that the requisite documents had not been supplied was taken in that affidavit. Reference to the same shall be made shortly hereafter. However, in the subsequent reply an averment was made that requisite documents had not been supplied to the contemnors. It has been argued on behalf of the contemnors that initiation of these contempt proceedings is contrary to the practice and procedure, and is vitiated in law. It was argued that the requisite documents were not supplied to the contemnors and the law of procedure have not been followed. In fact, the notices had been issued without application of mind. It was further argued that the points taken in the subsequent reply could be raised and argued even if they are contrary to the first reply and in any case the contemnors have not committed any contempt and the irregularities or illegalities in the procedure touch the jurisdiction of the court, as such the proceedings should be dropped against the contemnors. In this regard, reliance was placed on judgments in the cases of Bal Thackrey Vs. Harish Pimpalkhute and Others, ; Chhotu Ram Vs. Urvashi Gulati and Another, ; The Chairman, Board of Mining Examination and Chief Inspector of Mines and Another Vs. Ramjee, ; P. Ramachandra Rao Vs. State of Karnataka, ; S. Amarjit Singh Kalra (dead) by Lrs. and Others and Smt. Ram Piari (dead) by L.Rs. and Others Vs. Smt. Pramod Gupta (dead) by Lrs. and Others, ; Rattan Lal Sharma Vs. Managing Committee, Dr. Hari Ram (Co-education) Higher Secondary School and others, ; Rattan Lal Sharma Vs. Managing Committee, Dr. Hari Ram (Co-education) Higher Secondary School and others, and P. Ramachandra Rao Vs. State of Karnataka, . It was also stated that the initiation of contempt proceedings would not be permissible in view of the principle of double jeopardy as the suit is still pending before this Court for final adjudication.

On the other hand, the learned Counsel appearing for the Defendant in the suit has emphatically argued that the conduct of the contemnors not only calls for initiation of contempt proceedings by show cause notice but they are liable to be punished for committing contempt of court by filing false affidavits, forged documents in judicial proceedings, making incorrect averments before the Court, showing disrespect to the process of the court and undermining the dignity of law.

It is the contention of the Defendant, while relying upon the judgments of the Supreme Court in the cases of Udai Chand Vs. Shankar Lal and Others, , that not only the contempt action should be taken against Respondents for making misleading and false statements, but the suit itself should also be dismissed. Meeting the contentions raised on behalf of the contemnors that the principles of natural justice have been violated or that the documents have not been supplied, the Counsel while relying upon the judgment of the Supreme Court in the case of The Chairman, Board of Mining Examination and Chief Inspector of Mines v. Ramjee (supra) argued that the principles of natural justice is No. unruly horse or No. lurking landmine nor a judicial cure- all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each case, No. breach of natural justice can be complained of. In this regard he also relied upon the judgment in the case of S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others, . It is stated that copies of the documents which have been forged were with the Respondents (contemnors), the copies of the orders of the Court were furnished to them and they had access to the judicial record on various occasions. It is contended that despite the fact that the file was available, No. attempt was made to inspect the said file and the contemnors cannot take advantage of their own wrong particularly in view of the facts and circumstances of the present case. The counsel, while relying upon the various judgments of the Supreme Court had vehemently argued that the contemnors are liable to be punished for committing contempt of Court in view of the fact that the entire acts are based upon the judicial records itself.

The contentions raised on behalf of the contemnors is that the present petition could not continue as it would amount to double jeopardy as the suit itself is pending final adjudication. This argument is without any basis. The acts of the contemnors prima facie justify initiation of such proceedings and would not, in any way, attract principles of double jeopardy. The contempt proceedings is sui generis . It has peculiar features which are not found in criminal proceedings and even if a person is accused of an offence and merely on account that the court issues notice of contempt and a Commission is appointed by the Court to record the testimony of the contemnors and the Commission issues notices in turn to the police officers, would not offend Article 20 (3) of the Constitution and there would be No. element of compulsion. This was held by the Supreme Court in the case of Delhi Judicial Service Association, Tis Hazari Court, Delhi Vs. State of Gujarat and others, . Furthermore, there is No. compulsive element against the contemnors in as much as they have filed the documents on record from their own records, and it is only in view of the report of the Forensic Laboratory, submitted as per orders of the Court, that tampering of the documents has come to the notice of the court, besides other misdeeds and acts of disrespect of the contemnors during the judicial proceedings.

The other argument that the initiation of contempt proceedings is vitiated procedurally and in law as it was obligatory upon the Court to place the matter before the Chief Justice, is equally without any basis. The present proceedings were initiated under the orders of the Court and not at the instance of any party. A notice to show case was issued to the contemnors as to why proceedings under the Contempt of Courts Act and Article 215 be not initiated against them. In the case of Bal Thackrey v. Harish Pimpalkhute and Ors. (supra), the Supreme Court had clearly held that the directions contained in P.N. Duda''s case to place contempt petition before the Chief Justice for orders, prescribe the procedure to be followed by the High Court to ensure smooth working and streamlining of such contempt actions as are intended by the Court suomoto on its own motion. Those directions have No. effect of curtailing or denuding the powers of the High Court. More over, a complete distinction was made in regard to the proceedings which are initiated by the Court suomoto. The judgment relied upon by the learned Counsel appearing for the Respondents has No. application to the present case. The proceedings were initiated by the Court suo moto keeping in view the offending acts of the contemnors.

As discussed in the earlier part of the judgement under the head "Facts of the case" it has come on record that the original agreement to sell dated 8th October, 2004 as well as the receipt dated 20th October, 2004 were produced by the Plaintiff (in the suit) after the orders were passed by the Court. These documents were apparently tampered with. When both the Plaintiff and Ashok Kapoor were examined under the provisions of Order 10 of the Code of Civil Procedure, they opted to tell lies before the Court. They were warned and something which was visible even to the naked eye (i.e. the computer typed print which had been rubbed off by these persons), they refused to answer the questions in that regard. In the statements dated 10th September, 2005 made by the Contemnors this conduct of the contemnors was duly noticed. Compelled with the attitude adopted by the contemnors, the Court vide its order dated 10th September, 2005 had to direct the Central Forensic Science Laboratory (CFSL), Kendriya Karyalaya Parisar, Block No. 4, Lodhi Road, New Delhi to submit a report to the Court. The contents of the report have already been referred above which clearly shows that the documents have been tampered with and the most crucial clause which would in normal circumstances frustrate the case of the Plaintiff, was scored out by use of a different ink and even the consideration of Rs. 30,000/- and expression ''cash'', after rubbing the same off, was made as Rs. 2 lacs, the expression ''cash'' in handwritten. These documents have been submitted by the Plaintiff before the Court, obviously with an intention to seek favourable orders. In fact, while relying upon these documents, even an ex parte order dated 31st May, 2005 was granted in favour of the Plaintiff (in the suit). These documents, even as per the case pleaded by the Plaintiff (contemnors), remained in his custody all through. The contemnors have tampered with and forged these documents and have used the same in judicial process with an intention to seek favourable orders and affect the rights of the other parties prejudicially .No. plausible explanation in this regard had been tendered by the contemnors except taking technical pleas in the replies subsequently filed. In fact, in the first affidavit filed by the contemnor Ashok Kapoor, on 22nd September, 2005 he had stated as under:

a) That the deponent states that the deponent tender unconditional apology with folded hands and seek pardon from this Hon''ble Court with regard to the conduct of the deponent is concerned which this Hon''ble Court observed as contemptuous during the recording of the statement of the deponent by raising voice. The replying Respondent has not intention and dare to lower the dignity and majesty and decorum of this Hon''ble Court by raising voice, before this Hon''ble Court.

b) That the deponent is a semi-illeterate person and is having No. knowledge about the court proceedings and how to appear before the courts. The deponent extremely apology from this Hon''ble court and beg pardon from this Hon''ble Court.

c) That the deponent states that the statement of the deponent is concerned the deponent has made the true and correct statements of the facts before this Hon''ble Court as such as per his knowledge and belief and nothing part of the statement is false. The deponent submits that the deponent was the property dealer from the side of Shri Sushant Sen Gupta and is the witness to the documents which were executed between the parties in the presence of the deponent and other witness and after the execution of the documents in question, the documents were never been in power, possession and custody of the deponent. The deponent states on oath that the deponent was not having any knowledge of the alleged tampering on the documents.?

Thereafter, at that stage, neither the Plaintiff (in the suit) nor Ashok Kapoor had taken any objection with regard to non-supply of documents or non-availability of any records including the orders of the Court. As already noticed, the Registry had served a copy of the order dated 10th September, 2005 upon the contemnors against receipt. Even otherwise, in all these proceedings, the contemnors were represented through counsel. The contemnors changed as many as three counsel during the hearing of this petition, and with change of each counsel, the stand varied. Be that as it may, it is apparent that the contemnors appear to have tampered with the documents and in any case they have used such tampered/forged documents in judicial proceedings to seek favourable orders prejudicial to the interest of the other party and which ex facie interfered with the administration of justice, and the Court had to spend number of hearings including calling for the reports from the forensic experts to clarify the facts and reach to the truth of the matter. In the affidavits which were filed by the contemnor Kuldeep Kapoor, he intentionally made incorrect and false averments to the extent that he even gave incorrect addresses in the petition and specified No. reason for doing such disrespectful act and filing incorrect affidavit. During the course of statement recorded on 10th September, 2005 and read in conjunction with the order of the Court, it was noticed that No. explanation whatsoever has been given by the applicant for giving incorrect addresses in these affidavits. The intention was obviously to mislead the Court. It was admitted by Kuldeep Kapoor that he was not living at the address which had been given in these affidavits. Filing of false and incorrect affidavit to mislead the court is apparently an contemptuous act on the part of the contemnors. The Supreme Court in the case of M.C. Mehta Vs. Union of India (UOI) and Others, while deprecating the practice of filing affidavits containing incorrect or false averments and observing that contemnor''s statement in reply to the contempt that all orders passed by the Supreme Court were at the behest of DPCC and not in public interest, was contemptuous and even an apology could not be accepted, and held as under:

The statement made in para 7 is all the more contemptuous. He is not only defending his action but to say that all the orders passed by this Court were at the behest of DPCC and not in public interest is by itself contumacious. Reading the entire paragraphs of the reply, it is in the tone of defiant posture. There is not even a whisper of an apology, much less unconditional apology, not to speak of remorse or contrition.....

...Consequent upon the orders of 5-1201997 and 16-1-1998, the draw of lots was held on 8-12-1998 at 4.00 p.m. In the office of NCR Board and the Respondent had been allotted an alternative site at Dadri. His name appeared at Sl. No. 36 of the list.

In the facts and circumstances as adumbrated above and taking into account the entire course of conduct of the condemner, it is apparent that the condemner was taking the Court for a ride by raiding one court or the other deliberately with oblique motive to circumvent the Court''s orders thereby salvaging himself by feigning ignorance of this Court''s order which was in the knowledge of the condemner.

Apology tendered by the Respondent

It is significant to note that in reply to the contempt notice dated 25-11- 1999, a detailed reply was filed by the Respondent on 6-3-2000. No. apology, much less unconditional apology, was tendered by the Respondent. In fact, as already noticed the Respondent defended his action and also found fault with the orders passed by this Court on 10-10-1996 and 9-9-1999. The last affidavit filed by the Respondent was on 28-1-2003. In para 6 of the said affidavit the Respondent condemner categorically stated that he has not committed any contempt of any order passed by this Court. This is what he has stated in para 6:

I most respectfully state that I have not committed any contemn pt of any order passed by this Hon''ble Court. I state that No. order passed by this Hon''ble Court prior to 9-9-1999 was available to me and I was not a party to this proceeding in this Hon''ble Court. Further I state that to my knowledge No. alternative land had been allotted to me.?

In the background of the facts, as noticed above, the statement of the condemner in para 6 of the affidavit if false to the knowledge of the condemner. Filing false affidavit/statement has been held to be criminal contempt. (See: Murray and Co. Vs. Ashok Kr. Newatia and Another, ; Bank of India Vs. Vijay Transport and Others, and Dhananjay Sharma Vs. State of Haryana and Others, ).

However, in para 9 of the said affidavit the Respondent tendered an apology, which is as under:

I tender an unconditional and unqualified apology to this Hon''ble Court for any of my actions which might be deemed to be in contempt of the orders of this Hon''ble Court and pray that the said apology be accepted. I state that I hold this Hon''ble Court in highest esteem and have No. intention whatsoever to be in breach of any order passed by this Hon''ble Court. I most respectfully pray that this Hon''ble Court may be pleased to recall the notice to show cause as to why proceedings for alleged contempt of court issued to men and the said proceeding be dropped.?

The conduct of the condemner, as recited above, is beyond condonable limit. It is now a well-settled principle that an apology is not a weapon of defence to purge the guilt of the condemner. At the same time, the apology must be sought at the earliest opportunity. The apology tendered by the Respondent is at a belated stage to escape punishment of the Court. Furthermore, as already noticed, in para 6 of the affidavit he has stated that he has not committed any contempt and defended his action. In para 9 of the affidavit, as quoted above, though it is stated that he tenders unconditional apology, it is not really so, as in para 6 of the affidavit he has defended his apology, it is not really so, as in para 6 of the affidavit he has defended his action. Therefore, the apology so tendered by the condemner is not a product of remorse or contrition.?

In the case of U.P. Resi. Emp. Co-op. House B. Society and Others Vs. New Okhla Indus. Deve. Authority and Another, , the Supreme Court reiterated that filing of false affidavit with a view to mislead the Court amounts to contempt and suo moto cognizance of contempt can be taken by the Court. Reliance can also be placed on the judgments in the case of Amar Nath v. Joginder Singh and Ors. 1960 62 PLR 752 and Vidya Devi alias Vidya Vati (Dead by L.R''s) Vs. Prem Prakash and others, .

The other aspect of the case is with regard to the conduct of these contemnors before the Court. The order sheets clearly show that these contemnors showed disrespect to the Court as well as undermined the dignity of law by refusing to answer the question. Something which was visible even to the naked eye at the relevant time, they refused to answer and had rendered No. explanation whatsoever for their such conduct.

The most serious aspect of the case is that knowing the documents to be forged/tampered, the Plaintiff (contemnors) filed copies of these documents right along with the plaint and in fact persuaded the Court to grant them an order of injunction dated 31st May, 2005. Interpolated agreement which was filed by the Plaintiff was specifically referred to in the said order by the court. In other words, the Court has been misled by these persons to pass an ad-interim ex parte injunction. Not only this, these very contemnors even deposed incorrectly and as afore-noticed even filed incorrect affidavits in the Court. They intentionally withheld correct facts, true to their knowledge, in their examination u/s 10, besides being disrespectful to the court.

The above acts clearly show that the contemnors have undermined the dignity of law, have interfered with the administration of justice and has shown disrespect to the Court. In these circumstances they are liable to be proceeded against for committing criminal contempt. The contemnors, particularly Mr. Ashok Kapoor, had tendered an unconditional apology in the affidavit dated 22nd September, 2005. This apology was least a sincere remorse or regret on the part of the Respondents. It was merely an attempt to avoid the contempt proceedings. The subsequent replies filed, which are in contradiction with the original affidavit and the stand taken, show that the Respondents were not at all interested in tendering an unconditional apology bonafidely. The subsequent conduct, as is apparent from the order sheets, No. way show that the intended apology was a sincere attempt on the part of the contemnors. At this stage, reference can also be made to a judgment of this Court in the case of GE Motors India Pvt. Ltd. v. Mukesh Kumar 2005 (7) AD (Delhi) 902, where the Court held as under:

An apology tendered even at the outset has to be bonafide, should be demonstrative of repentance and sincere regret on the part of the contemnor, lest the administration of justice is crudely interfered with immunity by a person like the Respondents. The Court will check and punish the guilty in accordance with law at the appropriate stage as none is above law. The basic ingredients of rule of law have to be enforced whatever be the consequences. An apology which lacks bonafide and is intended to truncate the process of law with ulterior motive of escaping the likely consequences of such flagrant violation of the orders of the Court and disrespect to the administration of justice cannot be permitted. In the case of Prem Surana Vs. Additional Munsif and Judicial Magistrate and Another, the Supreme Court sternly came on a contemnor who had slapped the Presiding Officer holding that "it was in fact a slap on the face of justice delivering system and as such No. question of accepting any apology would arise nor any leniency called for". Reference can also be made to a Division Bench judgment of the Punjab and Haryana High Court in the case of Court on its own motion v. Ranjit Bajaj (CM No. 15886 of 2000 in CW 7639/1995), decided on 30th April, 2003 where the Court held as under:

A Division Bench of this Court in the case of (condemner) Ranjit Baja (in civil Misc. No. 15886 of 2000 in Civil Writ Petition No. 7639 of 1995) decided on 30th April, 2003 held as under:

..........in other words, the Courts have to derive a balance by reasoning of preferential view between the opportunity to reform and or inflictment of punishment forthwith, keeping in view the facts and circumstances of each case. A beneficial legislation obviously is not punitive and requires liberal construction. To us, it appears that essence of this reformative procedure is to release the person on probation as in alternative to or in lieu of the sentence/punishment.

In view of the peculiar facts and circumstances of the case, particularly the conduct of Mr. Kuldeep Kapoor and Mr. Ashok Kapoor even before the Court, the Court is of the considered view that the apology tendered by Mr. Ashok Kapoor in his affidavit dated 22nd September, 2005 cannot be accepted by the Court.

As held by the Supreme Court in the case of Bal Thackrey (supra) the object of prescribing procedural mode of taking cognizance is primarily intended to save the time of the Court and to avoid filing of frivolous contempt petitions. The contempt jurisdiction enables the court to ensure proper administration of justice and maintenance of the rule of law. It is meant to ensure that the courts are able to discharge their functions properly, unhampered and unsullied by wanton attacks on the system of administration of justice, or on officials who administer it and to prevent willful defiance of orders of the court or undertakings given to the court. This jurisdiction is equally enforceable to uphold the majesty and dignity of courts of law. The jurisdiction of the Court under Article 215 of the Constitution of India cannot be curtailed by anything in the Act of 1971. Reference of this case is necessary in view of the submissions made on behalf of the Respondents- contemnors that the correct procedure had not been invoked by this Court. Copies of the orders were provided to them, Registry had also issued notices to them and they were, in fact, appearing on subsequent dates seeking time to file reply to the show cause notices as to why proceedings under the Contempt''s of Courts Act be not initiated against them. They filed affidavits, tendered unconditional apology and then at a subsequent stage they took up the objections with regard to non-supply of documents, while the documents were admittedly in their power and possession, they had filed it in court, and they were signatory/witnesses to the said agreement and receipt. The inspection of the file was even permitted in court on the averments that the Registry had not provided them the file for inspection. Despite such specific orders the pleas taken in the reply are not only contrary to record, but are virtually an after-thought to even withdraw from their own affidavit dated 22nd September, 2005 where No. such plea was taken.

In the case of Secretary, Hailakandi Bar Association v. State of Assam and Anr. (1996) 9 SCC 76 where the contemnors in the case of police brutality leading to death of an under trial prisoner, sought to be covered up by an untrue and misleading report sent to the Court, the Supreme Court observed that it tantamount to interference with due course of judicial proceedings or administration of justice. It was held that filing of false and fabricated report and affidavit about the death of an under trial, and in spite of an opportunity being granted to make good the lapse the contemnor not bringing the true facts to the notice of the court, an apology could not be accepted at a belated stage and the court held as under:

This goes to show that the condemner was trying to highlight the fact that Nurul Haque was a veteran dacoit and possibly deserved the treatment that he got at the hand of the police. The CBI report indicates that there is No. record of any conviction of Nurul Haque in any dacoity case. Not only that, the story of saving Nurul Haque from public wrath by the police party on 9-3-1993 is also not borne out by the facts. He was not taken for medical examination on 9-3-1993 immediately after the alleged assault by the members of the public. He was taken to Hailakandi Civil Hospital at 5.30 p.m. On 10-3-1993 when various fresh injuries were noted on his body by the doctors. No. case of assault was also registered after rescuing Nurul Haque from alleged public wrath. This case was made only after Nurul Haque''s death. The report from the very beginning has tried to mislead the court as to the cause of death of Nurul Haque and the alleged events that led to his apprehension by the police. The emphasis that he was a veteran dacoit was also obviously with a view to create prejudice. Far from trying to help the court to do justice in this case, his report has tried to mislead the court and prevent the court from finding out the truth about the allegations made by the Bar Association of Hailakandi.

We, therefore, hold that the condemner deliberately forwarded an inaccurate report with a view to misleading this Court and thereby interfered with the due course of justice by attempting to obstruct this Court from reaching a correct conclusion. In the facts and circumstances of the case, we cannot accept his apology and hereby reject it. We hold him guilty of contempt under Article 129 of the Constitution read with Section 12 of the Contempt of Courts Act, 1971. Having regard to the gravity of the case, we sentence the condemner A.K. Sinha CASs yap to undergo simple imprisonment for a term of three months. The contempt rule is disposed of finally as above.?

(emphasis supplied)

Still in the case of In Re: Bineet Kumar Singh AIR 2001 SC 2018 where a person forged the court orders and used the same to obtain favourable orders from the Government, it was held that the contemnor was guilty of criminal contempt.

Intention on the part of a party to mislead the Court with an intention to seek favourable orders would amount to interfering with the judicial process or would be its abuse and would invite the special jurisdiction of the Court. "The Law of Contempt" by Borrie and Lowe, 3rd Edition, explains this concept as under:

The term ''abusing the court''s process'' can be applied to may different types of conduct but generally the term connotes some misuse of the court''s process.

The most serious example of abuse of process is conduct which is intended to deceive the court, for example, by the deliberate suppression of facts or by the presentation of falsehood, but the terms also includes the bringing of frivolous or vexatious proceedings.?

The above principles demonstrate the conduct of the Respondents in fabricating documents, relying on fabricated documents with an intention to seek favourable orders prejudicial to the other side, filing incorrect affidavits as is evident from the various order sheets of the file, failing to provide any reason to give incorrect addresses and even showing disrespect to the process of the Court during continuation of judicial proceedings which per se would be sufficient to take a prima facie view that Respondents are guilty of criminal contempt and are liable to be proceeded against and punished in accordance with law.

Another very pertinent aspect of this case which has to be noticed by the Court is that after judgments were pronounced dismissing the injunction application and prayer for attachment before judgment by the Plaintiff, and allowing the application of the Defendants u/s 340 Cr. P.C., the Plaintiff filed an application being IA No. 114/2006 seeking leave to withdraw the suit unconditionally. That application is still pending. Filing of this application is primarily intended to put an end to the judicial proceedings which were started by the Plaintiff on basis of forged and fabricated documents. This attempt was again to overreach the process of law and reflects an inappreciable conduct of the litigant.

The afore-referred acts and behaviour of the contemnors, in the opinion of the Court, prima facie, establishes that the Respondents have rendered themselves liable to be proceeded against, for committing criminal contempt under the provisions of the Contempt of Courts Act read with Article 215 of the Constitution of India. Their conduct has interfered with the administration of justice and has even undermined the process of law before the Court. Their conduct demonstrate least concern and respect for the rule of law and the attempt to tender an apology by Ashok Kapoor lacks bonafides. It is not a sincere remorse or regret on the part of the said Respondent, as is exhibited by his subsequent conduct before the Court. From the record it appears that the notice to show cause was not formally issued and served upon Girdhari Lal, as such it is directed that a notice to show cause as to why contempt proceedings be not initiated against him, be also issued to him containing the copy of this order as well as the previous orders along with copies of the documents filed by the other two contemnors on the judicial record.

Prima facie, a case of criminal contempt is made out against the contemnors Kuldeep Kapoor and Ashok Kapoor and in compliance to the provisions of the Act, the said contemnors are to be tried and punished by a Bench of two Judges. Consequently, the contemnors are directed to appear before the Division Bench on 30-1-2006. The case shall be listed before the Division Bench, subject to and after obtaining orders of Hon''ble the Chief Justice.