Poonabai vs Munnalal

Heard on admission.

The matter was taken up in the first round, arguments were advanced by both the parties, however, Mr. Atul Anand Awasthi has sought time to seek

instructions from his client as regard to the proposal of the applicant that she may be given half of the sale amount (Rs.7,07,000/-), as the applicant has

half share in all the suit property. However, in the second round, Mr. Awasthi did not appear, hence the order is being passed.

Applicant has filed this application under Order 39 Rule 2-A of the C.P.C. read with Section 94(C) of the C.P.C. for awarding a proper punishment to

the non-applicant on account of disobedience of orders dated 24.08.2015 and 29.10.2015, passed by this Court in First Appeal No.601/2014.

The applicant has filed a suit before the First Additional District Judge, Damoh against the non-applicant/respondent seeking partition of Khasra

No.2/2 area 0.235 hectares, khasra No. 25, area 5.929 hectares and Khara No.26, area 3.318 hectares, situated at Kotatala, Tahsil and district

Damoh. The suit was partly allowed by the trial Court holding that the applicant is entitled to half share in the disputed lands vide judgment and

decree dated 09.07.2014. Aggrieved by the aforesaid judgment, the non-applicant filed an appeal before this Court which was registered as F.A.

No.601/2014. The applicant filed an application I.A. No. 9882/2015 under Order 39 Rule 1 and 2 of C.P.C. seeking a direction, prohibiting the

appellant to sell the suit property. The said application came up for hearing on 24.08.2015 and the learned Single Judge of this Court passed the

following orders :-

“24.08.2015:

Parties through their counsel

I.A. No.9882/2015

This is an application under Order 39 Rule 1 and 2 of the Code of Civil Procedure, on behalf of the respondent No.1 for certain order to prohibit the

appellant to sale the suit property.

Shri Vivek Agrawal, learned counsel for the appellant says that the appellant has no intention to sale the property.

In view of the aforesaid, appellant is restrained from creating any third party interest in the suit property till the next date of hearing. I.A. stands

disposed of.

C.C. as per rules.â€​                                             Â

Subsequently the case was listed on 29.10.2015, when on the aforesaid date, the interim order passed on 24.08.2015 was continued to remain in

operation during the pendency of the appeal. After the order of injunction, nonapplicant sold 0.202 hectares of land from survey No. 26/1 by a

registered sale deed dated 20.05.2016 to third party, namely, Pratima Yadav and Deepa Yadav for Rs.7,07,000/-.

Non-applicant/respondent in his reply has admitted that he has sold the property by a registered sale deed after passing of the order of this Court. The

relevant portion in his reply is as under :-Â

“1. It is most respectfully contended herein that there is no willful disobedience committed by the present nonapplicant, as the applicant never

informed the nonapplicant about the order dated 24.08.2015 passed by the Hon'ble Court which was passed in F.A. No.601/2014 and also about the

confirmation of the previous order, although the parties were represented through their counsels but as the respondent is a villager, therefore he could

not remain in contact with his counsel and could not keep the communication with the Assistants of Shri Awasthy. It is contended herein that Shri R.S.

Thakur, Advocate sent the postal information to the respondent but anyhow, the appellant could not receive the same.

That, as the present non-applicant being appellant in F.A. No.601/14 thought that the portion in which the trial court has decreed the suit of the

appellant, that portion can be absolutely enjoyed by the appellant/defendant No.2 and there is no restriction in that portion, hence he sold any the small

portion of the property without disturbing 1/2 portion in the entire property in suit and that too when the appellant/non-appellant/non-applicant was

having no knowledge of the prohibitory order passed by the Hon'ble Court.

That, the present non-applicant cannot even imagine or think to disobey the order passed by the Hon'ble Court and he submits his unconditional

apology if it is felt that there is any disobedience by the non-applicant.

The application filed by the applicant be dismissed and the non-applicant be excused.â€​

Both the orders dated 24.08.2015 and 29.10.2015 were explicitly clear, the first order totally prohibited/restrained the non-applicant from creating any

third party interest in the suit property and by the second order, the prohibition order was made absolute during the pendency of the appeal. Inspite

of such clear bi-parte orders, third party interest had been created by the nonapplicant in the suit property.

From the aforesaid facts, it is clear that the nonapplicant has willfully disobeyed the order of this Court and made out a case for breach of

injunction. From the orders dated 24.08.2015 and 29.10.2015, it is clear that the order was passed in the presence of counsel for the

nonapplicant/appellant, wherein the counsel has said that the appellant had no intention to sell the property and therefore was restrained from selling

the property or creating any third party interest in the suit property during the pendency of the appeal.  The non-applicant/respondent in defiance

of said order has sold some portion of the property. It is also evident from the sale deed filed as Anneuxre A-3 that the property was sold to the

third party representing that the non-applicant has a clear and marketable party to the property and he is the independent owner, possessor and

occupier of the property and there is no right, interest, share or claim of anybody in the suit property. It was also stated that there is no stay by any

of the Court for the sale of the property. The non-applicant in his reply has stated that the applicant did not inform him about the order of stay

passed by this Hon'ble Court and therefore, he has not committed any willful disobedience. It is also stated that though his counsel has sent the

postal information but he did not receive the same and in this view he has offered an unconditional apology and prayed that this application be

dismissed.

The contention and apology of non-applicant cannot be considered, as it is used only as a tactical move to get the proceedings dropped. It cannot be

believed that after passing the restraining order on 24.08.2015, for more than one year, the non-applicant had no information about the status of the

appeal specially it is he, who had filed the appeal.

It is thus clear that the disobedience of the orders by the non-applicant is willful, intentional and deliberate.

The Supreme Court in the case of Patel Rajnikant Dhulabhai and another Vs. Patel Chandrakant Dhulabhai and others (2008) 14 SCC 561 has held

:-

“70. From the above decisions, it is clear that punishing a person for contempt of Court is indeed a drastic step and normally such action should not

be taken. At the same time, however, it is not only the power but the duty of the Court to uphold and maintain the dignity of Courts and majesty of law

which may call for such extreme step. If for proper administration of justice and to ensure due compliance with the orders passed by a Court, it is

required to take strict view under the Act, it should not hesitate in wielding the potent weapon of contempt.

The question then is whether the case calls forimposition of punishment on the contemners. The learned counsel for the contemners submitted that

in the affidavit in reply, the respondents have stated that if this Court comes to the conclusion that they had committed contempt of Court, the Court

may accept unconditional and unqualified apology and may discharge notice. The counsel submitted that the statutory provision itself enacts that no

apology shall be rejected merely on the ground that it is qualified or conditional [Explanation to Section 12(1)].

We must frankly admit our inability to agree with the learned counsel. In the light of what is stated above, we are convinced that the contemners

have intentionally and deliberately violated the orders of the Court. We are also convinced that the orders were clear, unambiguous and unequivocal

having one and only one meaning. Willful and deliberate disobedience of the orders passed by the apex Court of the country can never be said to be

bona fide, honest or in good faith. If it is so, the action calls for serious view to ensure proper administration of justice.

It is well-settled that an apology is neither a weaponof defence to purge the guilty of their offence; nor is it intended to operate as a universal

panacea, it is intended to be evidence of real contriteness [Vide M.Y. Shareaf v. Hon'ble Judges of the High Court of Nagpur; (1955) 1 SCR 757 :

M.B. Sanghi v. HighCourt of Punjab & Haryana, (1991) 3 SCR 312].

In T.N. Godavarman Thirumulpad through the Amicus Curiae v. Ashok Khot & Anr., 2006 (5) SCC 1, a three Judge Bench of this Court had an

occasion to consider the question in the light of an apology' as a weapon defence by the contemner with a prayer to drop the proceedings. The Court

took note of the following observations of this Court in L.D. Jaikwal v. State of U.P., (1984) 3 SCC 405:

We are sorry to say we cannot subscribe to the 'slap-say sorry- and forget' school of thought in administration of contempt jurisprudence. Saying

'sorry' does not make the slapper taken the slap smart less upon the said hypocritical word being uttered. Apology shall not be paper apology and

expression of sorrow should come from the heart and not from the pen. For it is one thing to 'say' sorry-it is another to 'feel' sorry"".

The Court, therefore, rejected the prayer and stated;

Apology is an act of contrition. Unless apology is offered at the earliest opportunity and in good grace, the apology is shorn of penitence and

hence it is liable to be rejected. If the apology is offered at the time when the contemnor finds that the court is going to impose punishment it ceases to

be an apology and becomes an act of a cringing coward"".

Similar view was taken in other cases also by this Court.

We are also satisfied that the so-called apology is not an act of penitence, contrition or regret. It has been tendered as a `tactful move' when the

contemners are in the tight corner and with a view to ward off the Court. Acceptance of such apology in the case on hand would be allowing the

contemners to go away with impunity after committing gross contempt of Court. In our considered opinion, on the facts and in the circumstances of

the case, imposition of fine in lieu of imprisonment will not meet the ends of justice.â€​

A co-ordinate Bench of this Court in the case of Sumer Singh and another Vs. Sanman singh and another 2011 (1) MPLJ 387,in a similar matter has

not accepted the unconditional apology of the respondents and imposed a punishment on respondent No.1 to pay fine of Rs.25,000/- to the applicant

therein and in default to undergo simple imprisonment of two weeks. The relevant portion reads thus :-

“9. The respondent No.1 submitted an unconditional apology, however, looking to the act of respondent No.1, in my opinion, the unconditional

apology submitted by respondent No.1 could not be accepted. Hence, in my opinion, ends of justice would be satisfied if the respondent No.1 be

awarded a proper punishment.

Consequently, Â I hold the responded No.1, Sanman Singh s/o Shri Khushilal, guilty under section 12 of the Contempt of Courts Act read with

section 94 (c) and Order 39, Rule 2-A Civil Procedure Code and 1 order that respondent No.1 shall pay a fine of Rs.25,000/- (Rupees Twenty Five

Thousand only) and in the event if respondent No.1 fails to pay the fine to the applicants, he shall undergo simple imprisonment for a term of two

weeks i.e. 14 days. Respondents No.2 and 3 are discharged.â€​

In the present case also, though the orders dated 24.08.2015 and 29.10.2015, passed by this Court were very clear and explicit and passed in the

presence of counsel for the non-applicant/appellant, restraining the appellant from creating any third party interest in the suit, despite that a portion of

the suit property was sold by a registered sale deed to the third party namely, Pratima Yadav and Deepa Yadav by the non-applicant in totally

disregard and defiance of the said orders.

Resultantly, I hold that non-applicant has deliberately and intentionally violated the orders dated 24.08.2015 and 29.10.2015 and is liable to pay fine of

Rs.25,000/- to the applicant within a period of thirty days, in default to undergo simple imprisonment for 14 days.

With the aforesaid direction, this MCC stands finally disposed of.