Vijay Krishan Goswami vs Suresh Chand Jain

S.C. Mathur, A.C.J.

The Appellants, who was opposite party in contempt application, has directed this appeal against the order passed by a learned Siegle Judge on 14 July, 1993. By the said order the learned Single Judge has granted time to the Appellants and Jai Krishan Goswami to deliver possession of (he premises in question to the Respondent Suresh Chand Jain by 28th July, 1993. In case of failure to comply with this direction the Respondent Suresh Chand Jain has been granted (sic) to approach the District Judge who has been directed to take appropriate steps to get the. premises vacated through police force after seeking the help of the District Magistrale and the Senior Superintendent of Police and to keep the possession of premises under his control till further orders of the Court.

The Respondent Suresh Chand Jain had obtained ex parte decree against the opposite parties in the� contempt application, namely, Jai Krishan Goswami, Vijai Krishan Goswami and Smt. Manju Sharma for eviction from the property in question. This decree was affirmed on 22nd January, 1987. The decree was challenged in this Court through the Writ Petition No. 2386, of 1987. The writ petition was filed by the Appellants and his brother, Jai Krishan Goswami and Smt. Manju Sharma was impleaded -therein as a Respondent. Smt. Manju Sharma did not put in appearance in the proceedings. The writ petition was ultimately dismissed by judgment and order dated 12th May, 1992. Subject to the writ Petitioners giving undertaking before the Judge Small Causes Court withuMhree weeks of the receipt of certified, copy of the judgment, to deliver possession to the Respondent in vacant state, three months rime was allowed to the writ Petitioners to vacate the premises in question. Against this judgment SLP was filed before their Lordships Of the Supreme Court but the same was dismissed on 9th July, 1992.

The present Appellants Vijay krishan Goswami filed undertaking before the Judge, Small Causes Court in terms of the directions contained in the judgment of this Court. It appears that the premises in question was not vacated and peaceful and vacant possession was not given to the landlord on the expiry of three months mentioned in the undertaking. The Respondent-landlord, thereupon filed application for execution of the decree. In this execution case appellant''s brother, Jai Krishan Goswami filed objection u/s 47 of the Code of Civil Procedure, 1908, for short the Code, stating that no undertaking had been furnished by him and he was not bound by the undertaking furnished by his brother, the present Appellants. He also made an application for staying the execution of the decree. The executing Court refused - to stay the execution, whereupon Jai Krishan Goswami filed writ petition in this Court. The writ petition was dismissed by judgment and order dated 18th August, 1992.

Despite the� undertaking and despite the dismissal of SLP and the Writ- petition of Jai Krishan Goswami, the Respondent failed to obtain possession of the premises in question. The Respondent thereupon filed application u/s 12 of the Contempt of Courts Act against the present Appellants, his brother Jai Krishan and Smt. Manju Sharma. It was alleged in this application that the Appellants and two other opposite parties had disobeyed Court''s order dated 12th May, 1992 and were, therefore, liable to be punished. The prayers made in the application were:

(i) to issue notice to Respondents 1, 2 and 3.

(ii) to provide police force to the applicant and to direct responden 1, 2 and 3 to deliver possession of the premises in dispute to the applicant at once.

(iii) to punish Respondents 1, 2 and 3 for the disobedience of the Court''s order dated 12th May, 1992 passed by Hon''ble Mr. Justice S. C. Verma in Civil. Misc. Writ Petition No. 2386 of 1987 -- Jai Krishan Goswami and another v. The District Judge, Mathura and others.

On the aforesaid application the learned Single Judge issued notice on 21st October, 1992 against all the three opposite parties directing them to show-cause why action for disobedience of the order dated 12th May, 1992 and the undertaking furnished by them on 2nd July, 1992 before the Additional Munsif, Mathura be not taken against them. After service ot notice the Appellants and his brother Jai Krishan Goswami appeared before thelearned Single Judge on 12th May, 1993 through their respective counsel, Sri V.K. Burman and Sri Janardan Sahai. Sri Jai Krishan Goswami appeared Personally also. The Appellants Vijai Krishan Goswami was not present PJf� Neither of them filed his return to the contempt notice. The learnt Single Judge directed them to present on the next date of hearing viz. 14 July 1993. Smt. Manju Sharma had remained unserved. Accordingly fresh notice was directed to be issued to her.

Learned counsel for the Appellants has challenged the order under appeal on the following grounds:

(i) The order has been passed without giving opportunity of hearing to the Appellants.

(ii) The order has been Passed without recording any finding to the effect mat the Appellants has, in fact, committed contempt of Court.

(iii) Under the judgment in the writ petition the undertaking was required to be given by the Appellants and his brother Jai Krishan Goswami and no undertaking having been given by the the latter, the undertaking given by the Appellants alone could not be enforced. The order of the learned Single Judge does not give description of the property in respect of which it is required to be enforced.

The learned counsel for the Respondent has raised preliminary objection against the maintainability of the appeal. The learned counsel has pointed out that the present appeal has been filed u/s 19 of the Contempt of Courts Act but under that Section ah appeal lies only against a final order-and not against an interim order. It is submitted that the order under appeal is an interim order and not a final order. The grounds raised by the learned counsel for the Appellants have been traversed and it has been submitted, that the Appellants is not entitled to be heard as he is in contempt. A large number of authorities have been cited by the learned counsel.

Section 19(1) of the Contempt of Courts Act, 1971 under which the appeal has been filed reads as follows:

(1) An appeal shall lie as of right from any order or decision of High Court in the exercise of its jurisdiction to punish for contempt --

(a) where the order or decision is that of a single Judge, to a Bench of not less than two Judges of the Court;

(b) where the order or decision is that of a Bench, to the Supreme Court:

Provided that where the order or decision is that of the Court of Judicial Commissioner in any Union territory, such appeal shall lie to the Supreme Court...

From the above it would be seen that appeal lies from a "decision" as well as from an "order" Decision in our opinion would be final decision of the contempt application. When a separate word ''order'' has been used in the same clause it would appear that it refers to something other than the final judgment. Accordingly we are of the opinion that an appeal is maintainable even against an order which does not finally dispose of the contempt proceedings. However every interim order passed in the contempt proceedings is not appealable under the above provision. Only that order is appealable which is passed in the exercise of jurisdiction to punish for contempt, in the present case before proceeding to issue directions in the operative portion, the learned Single Judge has recorded finding that he was fully satisfied that Sri Jai Krishan Goswami and Sri Vij�y Krishan Goswami had deliberately, in defiance of the orders of law courts and their undertaking, continued to retain the possession of the disputed premises. It has also been observed;

Their conduct is reprehensible and they are liable to be punished for contempt and also the premises, in these circumstances, is liable to be got vacated from them through some other machinery in accordance with law.

(Emphasised)

From this it would appear that the learned Single Judge was satisfied that. contempt of Court had been committed by the Appellants. It cannot, therefore, be said that the order under appeal was not passed, in exercise of jurisdiction to punish for contempt. We are accordingly of the opinion that the present appeal is maintainable. The view taken by us has the support of a Division Bench of the Court in Somesh Sachdev vs. Baldev Raj 1989 ALJ 928. In paragraph 10 of the report it has been reported:

From the above it will be seen that there is no total bar on an appeal against an order passed at an intermediate stage. It will depend upon the nature of contention raised and the manner in which the same has been disposed of by the Court. In case a contention which goes to the very root of jurisdiction is raised and the same is turned down, certainly it must give rise to a right of appeal u/s 19(1).

In taking the above view the Division Bench has placed reliance upon a decision of their Lordships in Purshotam Dass Goel Vs. Hon''ble Mr. B.S. Dhillon and Others, wherein it has been observed thus:

We may repeat that it may be a different matter if the order does decide some-disputes raised before it by the contemner asking it to drop the proceeding on one ground or the other. But unless and until there is some order or decision of the High Court adjudicating upon any matter raised before it by the parties, affecting their rights the mere order issuing the notice is not appealable.

In the case on hand the learned Single Judge has not merely* issued notice but has held the Appellants and. his brother guilty of disobedience of Court''s order* The law laid down by their Lordships also supports our view,

Learned counsel for the Respondent has, however, placed reliance upon D.N. Taneja Vs. Bhajan Lal, in support of th� sub� mission that the appeal is not maintainable. In that case the appeal before their Lordships was directed against judgment and order rejecting the application for contempt. It is in this context that their Lordships have observed in paragraph 8 of the report thus:

Then the High Court does not impose any punishment on the alleged * contemnor, the High Court does not exercise its jurisdiction or power to punish for contempt. The jurisdiction of the High Court is to punish. When no punishment is imposed by the High Court, it is difficult to say that the High Court has exercised its jurisdiction or power as conferred on it by Article 215 of the Constitution.

Their Lordships have not laid down that no appeal will lie even when jurisdiction has been exercised in the process of punishing the contemnor. In the present case the order under appeal has been passed in the process of punishing the Appellants which is apparent from the fact that finding of deliberate disobedience of Court''s order has already been recorded by the learned Single Judge. What the learned Single Judge has deferred is the actual award of punishment.

In view of the above the. preliminary abjection is over-ruled. We now proceed to examine the appellant''s case ou merits.

Ground no. 1: Opportunity of hearing:

The order dated 21st October, 1992 passed on the contempt application shows that notice was issued to the Appellants and other opposite parties in the contempt application, It is not the case of the Appellants that notice was not served upon him or that he had not put in appearance before the learned Single Judge. It may be that the Appellants did not file any reply or counter-affidavit but thereby it cannot be said that Opportunity of hearing had not been provided by the learned Single Judge. In the order dated 21st October, 1992 the learned Single Judge had directed the Appellants to appear in person or through counsel to show-cause by filing counter-affidavit why action for disobedience be not taken against him. It was appellant''s own fault that he did not file counter-affidvait to justify his action.

In respect of the submission that opportunity of hearing was not"" afforded to the Appellants it has been stated in ground 10 of the memo of appeal that on 13th May, 1993 the Appellants found that his counsel Sri Janardan Sahai was not well and thereupon he engaged another lawyer Sri Murlidhar so that reply of the Appellants be filed before the Court. It is further stated that Sri Murlidhar made a mention to the Court at about 10.30 a.m. that counter-affidavit was in the process of preparation and that he would be in a position to file the same after lunch break. But by then the learned Single Judge had already made up his mind and he refused to give time to Sri Murlidhar and proceeded to pass order after observing that every time the case was listed the same position appealed. In the same ground it is also mentioned that the case was listed for the first time on 14th July, 1993 and the observation made by the learned Single Judge which appeared to show that the case had been listed earlier also was incorrect. The statement in ground 10 that the case was listed for the first time on 14th July, 1993 is contradicted by the statement made in grounds wherein it is stated that the Appellants appeared before the Court on 12th May, 1993. Obviously that was also a date fixed in the Court earlier to 14th July, 1993 This was not only the date fixed in the Court but on this date the Appellants appeared before the Court along with his counsel. � Between 12th May, 1993 and 14th July, 1993 there was sufficient time with the Appellants to get his counter-affidavit drafted. There was no occasion for the Appellants to have" waited till 14th July, 1993 for drafting of the counter-affidavit. In fact copy of the counter affidavit should have been served earlier upon the�re�pondent and on 14th July� 1993 the Appellants should have, been ready to file it before the Court as soon as'' the case was taken up. On the facts and circumstances of the case there was no justification for the Appellants not to be ready with his counter-affidavit when the case was called. Merely because the Appellants was seeking a short adjournment, it cannot be said that opportunity of hearing had not been provided. In fact, the Appellants himself failed to avail of the opportunity provided by the Court.

Ground no. ii: Finding of contempt:

The submission of the learned counsel for the Appellants is that the Appellants could not be deprived of the property in his possession in the manner done by the learned Single Judge without recording finding of contempt. Relevant portion, from the order of the learned Single Judge has been reproduced from which it is apparent that finding of deliberate disobedience has been recorded by the learned Single Judge. The second ground of challenge is, therefore, without factual basis.

Ground no. iii: Enforceability of undertaking:

It is submitted by the learned counsel for the Appellants that the undertaking given by the Appellants was of no consequence as no undertaking had been given by the other judgment-debtor, namely, Jai Krishan Goswami. This plea is not available to the Appellants. Undisputedly the Appellants gave the undertaking. This undertaking has already been the subject matter of interpretation by this Court in earlier proceedings.

The appellant''s brother Jai Krishan Goswami had filed Writ Petition No. Nil of 1992 which was dismissed on 18th August, 1992. The judgment is Jai Krishan Goswamy v. IIIrd Additional Civil Judge, Mathura, 1992 (2) ARC 645. In paragraph 2 of the report it has been observed pursuent to the aforesaid order, the Petitioner gave an undertaking before the Small. Causes Court/Additional Munsif, Math�ra in the district of Mathura on 1st July, 1992" From this it would appear that the undertaking given by Vijai Krishan Goswami was accepted by his brother Jai Krishan Goswami also. A perusal of the judgment does not show that Vijai Krishan Goswami disclamied the said undertaking. His only contention was that the undertaking was not absolute but was hedged in with conditions and, therefore the Petitioner was not bound to hand-over possession to the landlord after the expiry of three months.;

In R. N. Gosain v. Yashpal Dhir, 1993 (1) ARC 1 it has been held by their Lordships of the Supreme Court that a tenant who does not vacate the premises after giving undertaking in that behalf is not entitled to file SLP before their Lordships of the Supreme Courts. This was an application for special leave. This authority has been relied upon by the learned counsel for the Respondent for submitting that the present appeal is not maintainable. An appeal u/s 19 lies as a matter of right. The matter before their Lordships of the Supreme Court was through special leave petition. A petition for special leave lies under Article 136 of the Constitution which reads: -

Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal

A petition under this provision does not lie as a matter of right. Such a -petition may be entertained. In the discretion of the Supreme Court. Accordingly , this authority has no application to the facts of the present case.

Smt. Ram Pyari v. Jagdish Lal, 1992 ALJ 742, was a contempt application in special leave petition. Our observation made in respect of R. N. Gosain''s case (supra; applies to this case also.

Learned counsel for the Appellants has cited certain authorities in which directions were issued for immediate delivery of possession. Since we are dismissing the appeal, it is not necessary to examine those decisions.

In view of the above, the appeal fails and is hereby dismissed. There shall, however, be no order as to costs. Interim order shall stand discharged.