Rajesh Gupta vs Harish Gupta and Others

Jayant Nath, J.

IA No. 5116/2012 (u/O 39 R 2A)

The plaintiff has filed the present suit seeking a preliminary decree of partition of suit properties, namely, property No. 2573-A/1, Gali No. 11, Near Jain Mandir, Goverdhan Bihari Colony, Shahadra, Delhi-110032 and property No. E-78, Industrial Area Bahadrabad, Haridwar, Uttranchal and for declaring that the plaintiff has 1/4th share in the properties. The aforesaid matter came up for hearing on 27.07.2012 when an order was passed whereby parties were directed to maintain status quo with respect to the suit properties till the next date.

The plaintiff has filed the present application stating violation of the said interim order. It is stated that in the month of September 2012 due to change in season, the plaintiffs health deteriorated and as the defendants used to use filthy language and obstruct the way of servants who came to help the plaintiff, the plaintiff decided to go to his uncle''s (Mr. Ravi Gupta house). On 09.01.2013, the plaintiff came to know about the death of his mother i.e. defendant No. 2. When the plaintiff tried to enter the house, defendants No. 1 and 3 obstructed the plaintiff and he was beaten up and threatened. It is stated that the defendants No. 1 and 3 have though having full knowledge of stay order dated 27.07.2012, are creating hurdles for the plaintiff to use the suit property and are preventing the plaintiff to enter into the suit property. Hence, it is stated that defendants No. 1 and 3 have interfered and obstructed the administration of justice by willfully going against the word and spirit of order dated 27.07.2012.

The defendants No. 1 and 3 have filed their reply. It is the contention of the said defendants that after the death of their father, the property at Shahdara was orally partitioned by the parties by metes and bounds and each party got 1/4th share. It is further stated that the plaintiff relinquished his 1/4th share along with 1/4th share of defendants No. 2 and 3 in favour of defendant no. 1 vide registered relinquishment deed dated 28.09.2005. Earlier the plaintiff had executed a Notorised Special Power of Attorney dated 24.09.2005 in favour of defendant No. 2, his mother, authorizing her to execute relinquishment deed. Relinquishment deed has been executed by defendant No. 2, the mother of the plaintiff, on behalf of the plaintiff based on the said Special Power of Attorney. Various documents have been placed on record to show that the plaintiff was not in possession of the suit property. It has been vehemently averred that the plaintiff was not in possession of the suit property on 27.07.2012 as alleged. Hence, it is stated that there has been no violation of any status quo order passed by this Court.

Learned counsel appearing for the plaintiff has vehemently urged that the plaintiff was in absolute physical possession of the said suit property when status quo order was passed on 27.07.2012 and has now been deliberately dispossessed by defendants No. 1 and 3. She submits that the plaintiff was in possession of the first floor of the said property at Shahdara. She relies on a status report filed by the police in the Court of Sh. Manish Garg, learned MM dated 08.08.2012 where it is stated that an enquiry was conducted and it was found that the plaintiff and his elder brother Sh. Harish Gupta are residing in the same house at different floors having same entrance to the house. She relies on various invoices which are in the name of Mahendra Lights of which the plaintiff is stated to be the proprietor and where the address of the Shahdara property is mentioned to claim that the plaintiff is the proprietor. She also relies on an electricity bill which''s due date was of 2013 which shows that the connection is in the name of the plaintiff at the Shahadara address. Certain photographs have also been placed on record to show that the plaintiff was in possession of the first floor of the property at Shahdara.

On the other hand learned counsel appearing for defendants No. 1 and 3 has vehemently denied the said contention of the plaintiff. He vehemently argues that apart from the fact that the defendants have not violated the stay order, injunction order has been passed by this Court on account of false averment made by the plaintiff. He relies upon the report of the process server to submit that there is no report to the effect that defendant No. 1 did not accept the summons as has been narrated in order dated 27.07.2012. He submits that after the relinquishment deed was executed and registered on 28.09.2005, the plaintiff has left the suit property and has not been staying in the said suit property. He relies upon a complaint which has been placed on record by the plaintiff dated 10.10.2005 which is a complaint made to the Commissioner of Police where the plaintiff has stated that on 26.09.2005, the accused forcibly took some signatures of the plaintiff on some blank papers and turned him out of the house in Shahdara and that he is now residing in 1301, Vikalpura, Driba, Chandni Chowk, Delhi-110006. He further submits that the electricity bill which is stated to be in the name of the plaintiff would show that the said electricity supply was energized on 28.01.2000. He submits that this connection was in the name of the plaintiff but after 2005, the plaintiff left the premises and this supply has been disconnected for non-payment of the bill. Learned counsel also relies upon rent agreement dated 16.07.2012 copy of which has been placed on record. The said rent agreement is between the plaintiff and Mr. Ramesh Kumar, the landlord of property bearing No. 157, Chajju Pur Road, Near Chajju Gate, Babar Pur, Shahdara, Delhi-110032 showing that the plaintiff is a tenant and even prior to the stay order that was passed by this Court, he had shifted and was staying at some other place. A reference is also made to a notice dated 03.07.2012 received from the Mediation Centre of the Delhi Government which gives the address of the plaintiff as 1301, Driba, Chandni Chowk, Delhi-110006. Reliance is placed on various police complaints filed by deceased defendant No. 2 to point out that the plaintiff has been clandestinely trying to enter the suit property. He also submits that the photographs of the camera placed by the defendants at Shahdara premises show that the plaintiff has been trying clandestinely to enter into the suit property. Certain documents have today been placed on record which are stated to have been filed in the Registry. Learned counsel submits that the registration certificates of the Delhi Sales Tax have been obtained by forging signature of defendant No. 2 inasmuch as the certificate states that the plaintiff is staying in the Shahdara property. Based on this forged certificate, the plaintiff has obtained a registration showing the Shahdara property. Reliance is also placed on certain challans issued by Master Lights which contains the address 1301, Vikalpura, Driba, Chandni Chowk, Delhi-110006. It is stated that the Master Lights is the proprietary concern of the plaintiff.

Learned counsel for the plaintiff has in rebuttal contended that the plaintiff had a shop in Chandni Chowk and he was staying at the premises at Shahdara. She clarifies that the rent agreement dated 16.07.2012 relied upon by the defendants shows the address of the plaintiff as Shahdara. It is further stated that as far as the Mediation Notice is concerned, the address was mentioned that of a relative to ensure receipt of letters by the plaintiff. She further states that the VAT registration has been obtained only after due enquiry.

The issue that now arises is as to whether the plaintiff was in possession of the first floor of the property at Shahdara as stated by the plaintiff on the date of the injunction order i.e., 27.07.2012. Prima facie based on the documents placed on record by the plaintiff and defendants and the documents of the parties, in my view, the plaintiff has not been able to prove that on 27.07.2012 that he was in physical possession of any portion of the suit property.

A perusal of the police compliant dated 10.10.2005 filed by the plaintiff with Commissioner of Police shows that it clearly states that he has been turned out of the house at Shahdara and is now residing at 1301, Vikalpura, Driba, Chandni Chowk, Delhi-110006. Similarly, the notice issued by the Mediation Centre of Delhi Government dated 03.07.2012 also clearly states that the plaintiff-Rajesh Gupta is presently residing at 1301, Driba, Chandni Chowk, Delhi-110006. The complaint to the Mediation Centre states as follows:-

Please find a representation of Sh. of Rajesh Gupta presently residing at 1301, Driba, Chandni Chowk, Delhi-110006 in original. He has stated that his elder brother Sh. Harish Gupta has captured his all business properties and not allowing him to enter into his house.

The explanation of the learned counsel appearing for the plaintiff that this address belongs to a relative and was furnished to ensure that proper communications are duly received by him appears to be an afterthought.

The above two documents indicate that prima facie the plaintiff has been dispossessed from the suit property long back much before the status quo order was passed on 27.07.2012 by this Court.

The reliance of the learned counsel for the plaintiff on the status report dated 08.08.2012 filed in the Court of Sh. Mukesh Garg, learned MM, Karkardooma Court is also misplaced. The report appears to be prepared by some SI Vipin Kumar. His basis in the report of concluding that the elder brother-Sh. Harish Gupta, defendant No. 1 and the plaintiff are residing at the same house at different floors is not known. The status report itself states that the brothers are making complaints against each other. The report further states that complainant-Sh. Rajesh Gupta wants to pressurize his brother-Sh. Harish Gupta through this complaint. The report recommends that the complaint filed by Sh. Rakesh, the plaintiff be filed. I am not inclined to accept this report as conclusive proof of the residence of the plaintiff in the property at Shahdara at the relevant time. Similarly, the reliance of the learned counsel for the plaintiff on the electricity bill which connection is stated to be in the name of the plaintiff at the Shahdara premises is misplaced. As pointed out by the learned counsel for the defendant, a perusal of the bill shows that the connection was energized in the year 2000. The existence of the said connection cannot conclusively establish that the plaintiff was in physical possession of any portion of the suit property on 27.07.2012.

I also cannot help noticing the contents of the present application filed by the plaintiff. The said application states that defendants No. 1 and 3 have interfered and obstructed in administration of justice by violating the status quo order. However, there is no categorical averment in this application that the plaintiff was in physical possession of the suit property at Shahdara and has been physically dispossessed by defendants No. 1 and 3.

It must be remembered that standard of proof required to establish a charge of contempt is that it has to be proved beyond reasonable doubts. Reference may be had to the judgment of Supreme Court in the case of Anil Ratan Sarkar and Others Vs. Hirak Ghosh and Others, . In para 13 and 14 (relevant portion) the Supreme Court has held as follows:

13...The observation as above finds support from a decision of this Court in Chhotu Ram Vs. Urvashi Gulati and Another, , wherein one of us (Banerjee, J.) stated as below:-

As regards the burden and standard of proof, the common legal phraseology "he who asserts must prove" has its due application in the matter of proof of the allegations said to be constituting the act of contempt. As regards the ''standard of proof, be it noted that a proceeding under the extraordinary jurisdiction of the court in terms of the provisions of the Contempt of Courts Act is quasi-criminal, and as such, the standard of proof required is that of a criminal proceeding and the breach shall have to be established beyond all reasonable doubt.

Similar is the situation in Mrityunjoy Das and Another Vs. Sayed Hasibur Rahaman and Others, and as such we need not dilate thereon further as to the burden and standard of proof vis-a-vis the Contempt of Courts Act-Suffice it to record that powers under the Act should be exercised with utmost care and caution and that too rather sparingly and in the larger interest of the society and for proper administration of the justice delivery system in the country. Exercise of power within the meaning of the Act of 1971 shall thus be a rarity and that too in a matter on which there exists no doubt as regards the initiation of the action being bona fide.

Keeping in view the said legal position, it is not possible on the basis of evidence and documents placed on record by the plaintiff to conclusively establish that the plaintiff was in physical possession of the property at Shahdara. Hence it has to be held that there is no merit in the present application.

Needless to add, the above conclusions are made only for the purposes of adjudication of the present application. In view of the above, there is no merit in the application and the same is dismissed.

CS (OS) 1855/2012

List before the Joint Registrar on 25th November, 2013 for further proceedings.