Subhashini Kar Nee Panda vs Samim Qureshi and Others

Mridula Bhatkar, J—By this Contempt Petition, the petitioner demands action to be taken against respondent Nos. 1 to 5 for breach of the order dated 5th August, 2006 passed by the learned Judge of the City Civil Court, Mumbai.

The petitioner is a plaintiff in S.C. Suit No. 5366 of 2000 which was filed before the City Civil Court, Mumbai against respondent Nos. 1 to 4. The petitioner is a real sister of respondent Nos. 2 to 4. They inherited a suit property, which is a bungalow situated at CTS No. 1062, Jayaprakash Road, Versova, Andheri (W) and the land adjacent from their father. Thus, the four sisters have 1/4th share each in the suit property. In August, 2000, respondent No. 1, who is original defendant No. 1, introduced himself as a builder and showed interest in the development of the suit property. He disclosed that defendant No. 2 had already sold her share to defendant No. 1. The plaintiff did not want to sell her share to defendant No. 1. In September 2000 when she went there, she found that the bungalow was locked. On 12th September, 2000 the plaintiff found that defendant No. 1 had employed two security guards and defendant No. 1 has forcibly taken the possession of the suit premises though defendant Nos. 3 and 4 are having undivided 1/4th share each in the property. Hence, the plaintiff apprehending demolition and reconstruction of the suit bungalow and that defendant Nos. 2 to 4 may alienate their share in the suit property and will part with possession of the suit property to any third person without her consent and approval, filed a suit before the City Civil Court. The learned Judge of the City Civil Court, Mumbai rightly held that all the sisters i.e. plaintiff and defendant Nos. 2 to 4 have equal shares in the suit property and allowed prayer under Order 2 Rule 2 to file a separate suit for possession, as admittedly the possession of the suit property at that time was with defendant No. 1. A big portion of the bungalow was already demolished by defendant No. 1. After weighing the evidence, the learned Judge decree the suit with costs and it was specifically ordered that defendant No. 1 is restrained by perpetual injunction from demolishing, altering or reconstructing or developing the suit structure or any structure on the suit land and defendant Nos. 2 to 4 are restrained from transferring, conveying, alienating and/or creating third party interest in the suit land before offering their shares to the plaintiff.

Today it is the case of the petitioner that after the order dated 5th August, 2006, respondent No. 5 was put in possession of the suit property and has started a restaurant named as "Tava" in the suit property and thus, the nature of the suit premises is altered and changed. After service of the notices, the learned counsel for all the contemnors remained present and took objection on the maintainability of the petitioner on different grounds.

The learned senior counsel for respondent No. 1, who is the main contesting party, has submitted that there is no contempt on the part of respondent No. 1 if the operative part of the impugned order is carefully read. He further submitted that it is proper for the petitioner to take out execution proceedings against the respondents instead of taking action in Contempt of Courts Act. Once the suit is decreed, then the decree holder can approach the Executing Court and should not file a Contempt Petition. He submitted that the effective alternative remedy of enforcing the decree of the Civil Court is by putting it in execution under Order 21 of the Code of Civil Procedure. In support of his submissions, he relied on the following judgments:

"(i) Judgment of Single Judge of this Court in the case of Mohammad Salam Anamul Haque v. S.A. Azmi & Ors., reported in 2001(1) Mh. L.J. 249.

(ii) Judgment of Single Judge of Allahabad High Court in the case of Indu Tewari v. Ram Bahadur Chaudhari, reported in AIR(ALL)1981-0-309."

The learned counsel for respondent No. 5 submitted that at present respondent No. 5 is in possession of the suit premises. He further submitted that respondent No. 5 was not a party to the suit and, therefore, there cannot be any contempt against him. He submitted that this Contempt Petition is not maintainable also for the reason that execution proceedings should have been initiated. He relied on the following judgments:

"(i) Judgment of Single Judge of Calcutta High Court in the case of Bonbehari Roy & Ors. v. Kolkata Metropolitan Development Authority, reported in AIR 2004 Calcutta 254.

(ii) Judgment of Single Judge of this Court in the case of Smt. Rupali Shah and Shri Pradeep S. Shah Vs. Munesh Ralhan @ Ricky Ralhan and Smt. Manorama Ralhan, (2009) 111 BOMLR 1214 "

He challenged the maintainability on the ground of limitation under section 20 of the Contempt of Court Act. He submitted that it is to be filed within a period of one year from the date when the alleged contempt has been committed. He further submitted that on this ground, the Contempt Petition is to be dismissed.

The learned counsel for the petitioner while meeting the objection on the maintainability against respondent No. 5 has argued that respondent No. 5 is in possession of the suit premises and he is running a restaurant in a suit bungalow, which is a residential one. He submitted that to dismiss the petition against respondent No. 5 would be hasty action. He argued that there is a willful disobedience of the order of the Court when there is an order of injunction in force against respondent Nos. 1 to 4. In support of his submissions, he relied on the judgment of the Hon''ble Supreme Court in the case of The State of Bihar Vs. Rani Sonabati Kumari, AIR 1961 SC 221 : (1961) 1 SCR 728 . In order to meet the challenge of limitation under section 20, he relied on the judgment of Single Judge of Allahabad High Court, Lucknow Bench in the case of Ram Prakash and Bros. and Others Vs. Nagar Mahapalika and Others, (1983) 9 AWC 29 : (1983) CriLJ 753 . On the point of alternate efficacious proceedings, he relied on the same judgment of Ram Prakash (supra) and so also he relied heavily on the decision of the Division Bench of Bombay High Court in the case of Abdul Kadar Fidahussein v. Abbasbhai Abdul Quayoom, reported in 1974 BLR LXXVII page 107.

After going through the submissions of learned counsel for both the sides and considering the alleged breach of order of the Court, at the outset it is to be noted that respondent No. 5, who is at present in possession of the suit premises and running a hotel was not a party-defendant in the suit. It appears that after passing of the decree in August 2006, respondent No. 1 has transferred the possession of the suit premises to respondent No. 5. In order to appreciate the submissions of the learned counsel, the order passed by the learned Judge of the City Civil Court in the said suit is reproduced herein:

Order:

"The suit is decreed with costs. Defendant No. 1 is hereby restrained by perpetual injunction from demolishing, altering or reconstructing or developing the suit structure or any structure in the suit land. Defendant Nos. 2 to 4 are restrained from transferring, conveying, alienating and/or creating third party interest in the suit land before offering their shares to the plaintiff. Defendant No. 1 shall bear the costs of the plaintiff.

A decree shall be drawn accordingly."

It is to be noted that no facts are brought on record that defendant Nos. 2 to 4 have transferred, conveyed, alienated or created third party interest in the suit land in favour of respondent No. 5. It appears that respondent No. 1 has transferred the possession and created third party interest by putting respondent No. 5 in possession of the suit premises. However, the injunction for transferring or alienating the suit premises and creating third party right is not running against respondent No. 1. As per the case of respondents, respondent No. 1 has actually transferred the possession in favour of respondent No. 5. It is interesting to note that in the prayer clause 21(c)of the plaint, the plaintiff has asked the injunction against respondent No. 1 that he should not demolish, alter, reconstruct or develop the suit property and also he should be restraining from dealing with or committing or doing any other act which will change the nature of the suit property and the bungalow situate thereon more particularly described in Exhibit "B" to the plaint. Thus, though the relief of injunction that defendant No. 1 should not deal with the property in any manner which will change the nature of the suit property was asked, was not granted, hence it cannot be said that respondent No. 1 has violated the said order by creating third party right. Respondent No. 5 was not a party to the suit and therefore, he cannot be held responsible for breach of the order. Admittedly, respondent Nos. 2 to 4 were not in actual possession of the suit premises. It was also rightly observed by the learned Judge that plaintiff and defendant/respondent Nos. 3 and 4 have undivided 1/4th share each in the suit property and the appropriate mode available for defendant No. 1 is to file a suit for partition if he has stepped in the shoes of 1/4th undivided share of defendant No. 2. Thus, it shows that defendant No. 1 might have illegally and forcibly dispossessed the appellant/plaintiff and respondent/defendant Nos. 3 and 4, however, it is to be noted that neither the petitioner nor respondent Nos. 3 and 4 have filed the suit for possession though permission under Order 2 Rule 2 was granted by the Court. Section 20 of the Contempt of Courts Act, 1971 puts a bar on initiating proceedings within one year from the date of contempt or the date of knowledge of the alleged contempt. The present Contempt Petition is filed on 10th November, 2014 for the breach of an order dated 5th August, 2006. It was contended in Para 11 of the Petition that respondents have committed continuous contempt in clear violation of the judgment and decree and the contempt continues till the date, hence this petition is not hit by the provisions of section 20 of the Contempt of Court Act, 1971. For eg:. In the case of trespass, as it is continuous offence, the limitation will not come in the way. However, the petition is entirely silent on which date a third party right was created by respondent No. 1 or respondent Nos. 2 to 4 in favour of respondent No. 5. There is no whisper as to when the restaurant was started. Under Section 20, it is necessary for the petitioner to disclose the date of knowledge of breach of the order of the Court. If it is taken in September, 2012 still it is out of limitation. Under such circumstances, the submissions of learned counsel that the petition is not hit by the provisions of section 20 of the Contempt of Court Act are not acceptable.

In the case of Bonbehari Roy & Ors. (supra) for execution of orders of writ Courts, contempt proceedings were initiated and while deciding the maintainability of said proceedings, the learned Judge of Calcutta High Court held that the main purpose of the contempt proceedings is to punish the person who commits contempt of Court and in a contempt proceedings, it may not be always possible to ensure execution and enforcement of the order. It was rightly held that different modes of execution of orders and decrees, as recognized by law, cannot be resorted to by the Court in a contempt proceeding. The execution proceeding begins solely for the benefit of the person who initiates it, hence the same is not the case in a contempt proceeding, which is aimed at upholding the dignity, majesty and authority of the Court and so a contempt proceeding can never be a substitute for an execution proceeding.

In the case of State of Bihar (supra) it is held that if there is disobedience in the order of temporary injunction, then liability to be proceeded in contempt and it was contempt taken out against the State, which was the defendant. It is not of much help to the petitioner.

In the case of Ram Prakash (supra), issuance of notice by the High Court Judge after filing of the Contempt Petition was considered amounting to initiation of proceedings within the meaning of section 20. This is not the case in the present matter.

In the case of Abdul Kadar Fidahussein (supra) there was a issue that whether a civil contempt arising out of Contempt of Courts Act can be heard by the Division Bench. In the said case, a suit was filed for permanent injunction for interfering in the possession of the shop. However, a consent decree was passed in the said suit in respect of possession of the suit shop but the respondent put one more lock to the entrance door of the shop and thus violated the consent terms and the consent decree was rendered ineffective. In the said case, the petitioner took proceedings against the respondent for contempt of Court in the City Civil Court. The learned Judge of City Civil Court referred the matter for taking action to this Court under Contempt of Courts Act. The Division Bench of this Court found the respondent guilty of Contempt of Court Act and held that the respondent has committed willful breach of undertaking given to that Court in decree and he was sentenced to Civil prison. In the present case, no consent terms were filed and no undertaking was given by the respondents. The case of Abdul Kadar is distinguishable on facts and also in principle.

It is a factual position that the petitioner has not taken out execution proceedings as contemplated under the Code of Civil Procedure against the respondents, which is an alternate efficacious remedy. A jurisdiction under the Contempt of Courts Act gives power to a Court to send a contemnor in civil prison and also saddle penalty on him and therefore, it has to be exercised with great care and caution and only when it is necessary. In the present case, the parties have not filed a suit for possession, which is a proper remedy against the respondents. A party must not resort to shortcuts with a view to pressurize the party in possession even though the party is in possession illegally. Under such circumstances, I am of the view that the Petition is not maintainable and hence dismissed.