Harpal Singh vs Anek Singh and anr.

N.K. Sodhi, J.

This is a case where the contemner has not only wilfully violated the order passed by this Court but has been adamant through out not to comply with the same.

Shri Darbara Singh, father of the petitioner, was a tenant in shop No. 44 situated at Dera Baba Nanak Road, Batala under respondent No. 1 (hereinafter to be referred to as 1 the landlord). After the death of Shri Darbara Singh the petitioner (who will be referred to hereinafter as the tenant) along with his two brothers and mother inherited the tenancy rights and have been in possession of the shop as tenants. The landlord filed an ejectment petition against Shri Darbara Singh and the proceedings continued even'' after his death against the tenant and others heirs of the deceased. The ejectment application was dismissed by the Rent Controller on October 12, 1989. The appeal filed by the landlord was accepted on October 1, 1990 and the appellate authority ordered that the landlord be put in possession of the demised shop within two months from the date of the order i. e. on or before December 1, 1990. In other words, the tenant was allowed two months time to. vacate the shop in dispute. Before the two months'' period expired, the landlord filed on 5.11.1990 an application for execution of the order of ejectment passed by the appellate authority. Apprehending that the tenant would file a revision petition in this Court against the order of the appellate authority, the landlord lodged a caveat in this Court under section 14A of the Code of Civil Procedure, 1908 (for short, the Code) through'' Ms Jaishree Thakur. Advocate and Mr. H.L. Sarin, Sr. Advocate. The tenant filed Civil Revision No. 304 of 1990 in this Court impugning the order of the appellate authority. Since the landlord had already lodged a caveat, counsel for the tenant served a copy of the revision petition on the counsel, for the landlord and the revision petition came up for motion hearing before A.L. Bahri, J. on November 29, 1990. Notice of motion was issued which was accepted by Ms. Jaishree Thakur, Advocate, on behalf of the landlord and dispossession of the tenant was stayed. This order was passed in the presence of the counsel for the landlord. It is not disputed that the counsel for the tenant applied for a certified copy of the order passed on November 29, 1990 and obtained the same on that very day as per the procedure of this Court. Shri R.N. Moudgil, Advocate, who appears for the tenant petitioner in this petition was his counsel in the revision petition as well and he states that he wrote a letter to his client and posted the same on November 29, 1990 informing him about the stay order granted by this Court. It is also the case of the tenant which is supported by his counsel in this Court that a photocopy of the certified copy obtained by the counsel from the registry of this Court was also sent on 30.11 1990 to the tenant through one Shri R.S. Walia, Advocate, Batala, who had come to Chandigarh to brief Shri R.N. Moudgil, in some other case and this copy is said to have been delivered to the tenant on 3.12.1990 through his brother Harvinder Singh who is also a tenant in the shop being one of the heirs of the deceased Darbara Singh. Shri Moudgil is also said to have sent another handwritten note in Punjabi to the tenant in which the order passed by this Court had been reproduced and this note was sent through one Shri Joginder Singh who had a case fixed in this Court on November 29, 1990 and was being represented by Shri Moudgil and who was leaving for Batala on that day. Mr. H. L. Sarin, Sr. Advocate, appearing on behalf of the landlord informed this Court that he too had posted a letter to his client on the same day i.e. 29.11.1990 informing him about the stay order passed by this Court through the landlord now alleges that this letter never reached him.

The execution. application filed by the landlord ''in November, 1990 was heard by the executing Court on 3.12.1990 in the presence of the landlord and his counsel and the Court ordered th e warrants of possession to be issued. The tenant and his counsel were not present as. no notice had been issued to either of them. The office then prepared the warrant of possession which was signed by the Presiding Officer on 4.12.1990 and the same was returnable by January 12, 1991. This warrant of possession was entrusted to respondent No. 2 who is bailiff of the Court for execution. The case of the landlord is that be along with the bailiff (respondent No. 2) and S/Shri Ajit Singh of village Bhullar which is 78 KMs. from Batala and Karam Singh son of Atma Singh went to the spot sometime between 11.00 and 11.15 A M. on 4.12 1990. The tenant was not present nor was any of his brothers there Niranjan Singh son of Amar Singh. a servant of the tenant alone, was present at the shop. On coming to know that the respondents alone with two persons had come to take possession of the demised shop, the servant immediately rushed home to call the tenant or any other member of the family. Smt. Chanan Kaur, mother of the tenant, accompanied the servant and immediately came to the spot. By this time, all the goods from the shop had been removed and put on the road side and an inventory was being prepared after locking, the premises. She is said to have shown a copy of the stay order, add also the note (Ex. ODW5/C on the record of the executing Court) received by her son from Shri Moudgil but the respondents did not brother. Shri Om Parkash Bhatia who is running an adjoining shop also came out and not only witnessed the scene but is also a signatory to the inventory that was prepared. Respondent No. 2 then made a report on the warrant reporting due execution.

On December 5 1990, the executing Court passed an order direct the bailiff to return the warrant unexecuted because the stay order issued by this Court had by then reached the trial Court. On this, respondent No. 2 informed the executing Court that the warrant had already been executed and that the possession of the demised premises had been delivered to the landlord on the previous day i.e. December 4, 1990. The tenant then filed on 7.12.1990 an application for restitution under section 144 of the Code before the Rent Controller which has been strenuously contested by the landlord. The tenant also filed the present petition on December 18, 1990. In response to the notices issued by this Court, the respondents filed their affidavits in reply. Both the respondents denied knowledge of the stay order passed by this Court though it has been admitted by them that possession has been taken from the tenant. After hearing counsel for the parties, this Court by an order dated March 25, 1991 directed the executing Court to dispose of the application for restitution expeditiously on day to day, basis and the parties were directed to complete their evidence within 15 days from the date of the order. The executing Court was directed to send a report to this Court.

In pursuance of the directions of this Court, the executing Court has disposed of the application for restitution and by an order dated June 14, 1991 allowed the same and directed the landlord to deliver the possession back to the tenant holding that the landlord had knowledge of the order passed by this Court on November 29, 1990 and it was by suppressing this fact from the executing Court that he obtained the warrant of possession on 12.1990. While holding that the tenant was entitled to the restoration of the possession and deciding issue No. 1 in his favour, the executing Court recorded the following finding :

"In the case. in hand, dispossession of the applicant from the shop in question was stayed by the Hon''ble High Court on 29.11.90. This fact was well within the knowledge of the respondent. As deposed to by Mr. Surinder Kumar Bhandari, DHW3, the copy of the said stay order was received by the Court on 51290. But the respondent wrongly got the warrant of possession issued in the execution proceedings on 3.12.1990 by suppressing the factum of stay of dispossession of the applicant from the Court. Under these circumstances, in view of the aforequoted observations made by our Lordships of the Hon''ble Supreme Court, applicant is entitled for the restoration of the shop in dispute."

In pursuance of the order of restoration passed by the executing Court, warrants. of possession were issued on August 28, 1991 requiring the tenant to be put back in possession. Kapoor Singh, bailiff who was entrusted with the execution of these warrants made a report on August 29. 1991 while returning the warrants unexecuted and English translation thereof is as under :

"It is submitted that I accompanied by the applicant and the witnesses went to the spot for delivery of possession. The shop was correctly located as per the plan. Anek Singh was not present there. Wassan Singh who was present there stated that he was in possession of the shop. The wife and son of Anek Singh were present there and they retorted that whosoever would come forward would be done to death. There is an apprehension of fight there. It is requested that police help may be afforded enabling me to get the possession delivered."

The warrant of possession in favour of the tenant remains unexecuted till now. Interestingly, with a view to obstruct the restoration of the possession to the tenant, the landlord who was present in Court before me stated that the shop in dispute is now in the possession of one Shri Wassan Singh in whose favour be executed a fresh rent note on December 10, 1990.

Counsel for the parties have been heard at length and with their help I have gone through the evidence led by the parties before the executing Court. It was strenuously contended on behalf of the landlord that the executing Court has not recorded any ''positive finding attributing knowledge to him about the stay order passed by this Court. It was also argued by learned counsel for the landlord that the tenant was not in possession of a copy of the stay order till 5.12.1990 and the question of the same being produced on his behalf on 4.12.1990 when the landlord along with respondent No. 2 took back possession of the demised shop did not arise. I find no merit in either of these contentions. As regards the landlord, the executing Court while deciding the application for restitution filed by the tenant has recorded a clear finding that the factum of stay order granted by this Court on 29.11.1990 was in the knowledge of former'' and that he suppressed this fact from the Court while obtaining a warrant of possession on 3.12. 1990. This finding alone is sufficient to hold that he is guilty of contempt. However, I am not basing my conclusion on this finding alone and after going through the evidence recorded by the executing Court and keeping in view the facts. and circumstances of the present case. I am of the opinion that the only irresistible conclusion is that both the respondents are guilty of contempt and have wilfully disregarded the order passed by this Court. Shri R.S. Walia, Advocate, appeared as JDW1. He has supported the version of the petitioner and has stated that he visited the High Court in connection with a case pending there. Shri R.N. Moudgil, Advocate, who is the counsel for the tenant in the present proceedings had given him a photocopy of the certified copy of the order passed by A.L. Bahri, J. in an ejectment case which was pending in the High Court. He has further stated that he was requested to hand over this copy to Harpal Singh, petitioner. Shri R.S. Walia, Advocate, delivered this copy to Shri Harvinder Singh, brother of Harpal Singh in the Court premises at Batala on 3.12.1990 as he is known to him. Niranjan Singh son of Amar Singh who appeared as JDW2 is admittedly working as a servant with Harpal Singh and Harvinder Singh at the shop in dispute and he was present at the time when the landlord and respondent No. 2 reached there to take possession on the basis of the warrant of possession issued on 4.12.1990. He has stated that he immediately rushed home to call Harpal Singh or Harvinder Singh but neither of them was available and instead Smt. Chanan Kaur, mother of Harpal Singh, accompanied him. By the time this witness along with Smt. Chanan Kaur, reached the spot, the respondents had already removed the goods from the shop. He has also stated that the mother of the petitioner had shown a copy of the stay order to both the respondents but they ignored the same. According to this witness, even the handwritten letter ExJDW5/C was shown to the respondents on 4.12 1990 when they forcibly took possession. From the statement of this witness, it is also clear that the tenant and his family members were in possession of a copy of the stay order.

Smt. Chanan Kaur, mother of the petitioner, even according to the respondents, arrived at the spot along with Niranjan Singh. She has appeared in the witness box and has stated that she had shown a copy of the stay order as well as the letter received from the counsel from Chandigarh to the respondents but they refused to honour the same. Again, we have the statement of Om Parkash Bhatia who is running a shop in the neighbourhood and according to him, a copy of the stay order had been shown to the respondents by Smt. Chanan Kaur and when this witness tried to show the same to the landlord, the latter tried to snatch the same from his bands. There is nothing in the crossexamination of any of these witnesses which would show that they are not telling the truth. From the statements of these witnesses, it is clear that the tenant and his family members were in possession of a copy of the stay order as the same was delivered to Harvinder Singh on 3.12.1990 by Shri R.S. Walia Advocate and that this was shown to the respondent, on 4.12.1990 when they went to the spot to take possession of the demised shop. The tenant had also received the handwritten note ExJDW5/C from his counsel in which the order passed by this Court had been reproduced and this note was also shown to the respondents at the spot. The respondents are obviously not telling the truth when they allege to the contrary and the executing Court was justified in recording a finding that the landlord was aware of the stay order at the time when the warrant of possession was issued on 3.12.1900 and when he took the same for execution on the following day. It is not believable that the landlord who was vigilant enough to engage a counsel for lodging a caveat in the High Court even before the revision petition was filed would not care to enquire about the fate of the case after the stay order had been issued. It is equally unbelievable that. the landlord did not receive the letter written to him by his counsel Shri H.L. Sarin. Sr. Advocate. It also passes ones comprehension That the tenant or his family members who were in possession of a copy of the stay order would not show .the same on 4.12.1990 when possession was sought to be taken from them on the basis of warrant of possession issued by the Court. Having found that the tenant and his family members were in possession of the copy of the stay order which had been sent to them by their counsel from Chandigarh and the same was shown to the respondents at the spot on 4.12.1990, it follows that respondent No. 2 also disregarded the same and is guilty of contempt. Even if one was to believe the bailiff that the landlord did .not disclose to him the fact that this Court had stayed the dispossession of the tenant, he should not have executed the warrant of possession when the stay order was shown on the spot by Smt. Chanan Kaur, the mother of the tenant. It is unfortunate that this respondent being a Court official whose primary duty is to implement the court, orders has shown scant respect for the order passed by this Court and went on to execute the warrant of possession. His conduct cannot but be deprecated. This Court in such a situation must take a serious view of the same. Resultantly, both the respondents are held guilty of contempt as they wilfully and deliberately disregarded the stay order granted by this Court. The plea taken by the landlord that he has executed. a fresh rent note in favour of Wassan Singh is only a subterfuge employed by him to avoid compliance with the order of this Court and also the order of restitution dated 14.6.1991. While obtaining warrant of possession from the Court, he did not disclose the fact that this Court had stayed the dispossession of the tenant and kept the trial Court in the dark. This conduct of the landlord, in my opinion, further aggravates the contempt.

The contempt proceedings against a person who has failed to comply with the court''s order or has wilfully disregarded the same serves a dual purpose : (i) vindication of the public interest by punishment of contemptuous conduct, and (ii) coercion to compel the contemner to do what the law requires of him. Their Lordships of the Supreme Court in Mohammad Idris and another v. Rustam Jehangir Bapuji and others, AIR 1984 Supreme Court 1886, have observed as under :

"On merits, the learned counsel submitted that the undertaking given was not, in respect of the property concerned and that in any case the learned Single Judge was not justified in giving cer tain directions in addition to punishing the petitioners for contempt of court. We find no substance in the submissions made by the learned counsel. There was a clear breach of the undertaking given by the petitioners and we are of the opinion that the Single Judge was quite right in giving appropriate directions to close the breach. The Special Leave Petition is, therefore, dismissed."

In the present case, the landlord by his conduct is adamant and is refusing to comply with the Court order and despite the order of restitutions he is refusing to deliver the possession back to the tenant.

As a sequel to my above discussion, I convict and sentence each of the respondents to two months simple imprisonment and to pay a fine of Rs. 1000/ each. If default is made in the payment of fine, each of the respondents will undergo a further sentence of fifteen days. Fine, if recovered, shall be paid to the tenant by way of compensation. In the circumstance of the case and with a view to plug the continuing breach on the part of the landlord, I direct the trial Court to have the order of restitution dated 14.6.1991 executed at the earliest but not later than December 31, 1991. Police force, if necessary, may be requisitioned and in that event, the Senior Superintendent of Police, Batala, is directed to provide necessary force for the execution of the order of restitution. A copy of this order be sent to the executing Court for necessary compliance.

On the oral request of counsel for the contemners, the sentence awarded to them is suspended till January 10, 1992 in order to enable them to file appeals.