Full Judgment Text
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CASE NO.:
Appeal (civil) 2455 of 2005
PETITIONER:
Ila Vipin Pandya
RESPONDENT:
Smita Ambalal Patel
DATE OF JUDGMENT: 17/05/2007
BENCH:
B.P. SINGH & HARJIT SINGH BEDI
JUDGMENT:
J U D G M E N T
HARJIT SINGH BEDI, J
1. This appeal by special leave is directed against the order
dated 25th August, 2004 of the Division Bench of the Bombay
High Court in notice of motion No. 1207 of 2004 in Testamentary
Suit No. 17 of 1996 whereby the order of the learned Single
Judge dismissing the notice of motion by order dated 29th July,
2004 has been confirmed.
2. The facts as taken from the appeal and relevant to its
disposal are as under:
3. The appellant Ila Vipin Pandya was married to Vipin
Dalsukhram Pandya on 15th December, 1966. The couple,
however, divorced on 24th May, 1985 but performed a remarriage
on 15th January, 1987 with the remarriage being registered
before the Registrar of Marriages, on 10th February, 1987. Vipin
Pandya aforesaid died as an intestate on 4th November, 1995 on
which a testamentary petition was filed by his widow Ila Vipin
Pandya on 9th February, 1996 praying for the grant of letters of
administration for the estate of the deceased. The respondent
Smita Ambalal Patel, however, filed a Caveat on 7th March, 1996
opposing the grant and also filed an affidavit on 13th March,
1996 denying that the deceased had died intestate and pointing
out that he had executed a Will which had been deposited by
him with an Advocate and Solicitor Markand Gandhi and further
that the appellant was not the widow of the deceased as no
remarriage had taken place as alleged. As the testamentary
petition came to be contested by the Caveat it was converted into
Testamentary Suit No. 17 of 1996. The appellant thereafter took
out Chamber Summons No. 990 of 1996 praying for the
dismissal of the caveat on the plea inter alia that no caveatable
interest had been disclosed in the affidavit and that she as the
widow of the deceased was his only heir. The respondent filed an
affidavit on 29th October, 1996 in reply to the Chamber
Summons for the first time disclosing that she was a creditor of
the estate of the deceased. The matter came up before a learned
Single Judge of the Bombay High Court (Dr. (Mrs.) Upasani, J.)
who, in her judgment dated 23rd December, 1996, observed that
the Caveatrix had disclosed her "interest in the estate of the
deceased by stating that she was a creditor of Vipin Pandya to
the knowledge of the petitioner Ila" and that the deceased had
apparently executed a Will which had probably been deposited
with Markand Gandhi, Advocate. It was also observed that
creditors of a deceased could not be said to have any interest in
the estate left by him and the interest was limited to ensuring
that the assets of the estate were sufficient to pay the debts of
the deceased and that the remedy of a creditor of a deceased
under normal circumstances was to file a suit against the person
in whose favour the grant of probate or letters of
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administration had been made, but having so held, further
observed that in the peculiar facts of the case an outright
dismissal of the caveat would not be justified. The challenge
made to this order before the Division Bench of the Bombay High
Court and before the Hon’ble Supreme Court by way of Special
Leave Petition also failed as both matters were dismissed vides
orders dated 4th March, 1997 and 28th April, 1997 respectively.
Respondent Smita Patel thereafter filed Suit No. 4892 of 1998 on
18th September, 1998 before the Bombay High Court impleading
Ila Pandya as defendant No. 1, the brothers of her deceased
husband as respondent Nos. 2, 3, 4 and several other
respondents as well, alleging that the deceased had left behind
huge properties which were being misappropriated by one or the
other of the respondents and that the deceased was at the time of
his death indebted to her with respect to large sums of money
and that an arbitration attempted between them at one stage had
proved to be unsuccessful. Along with the plaint she appended a
letter dated 25th September, 1995 addressed by Vipin Pandya to
her acknowledging his liability to pay a sum of Rs.20 lacs which
apparently was due to her and also undertaking to deposit a sum
of Rs. 1 crore to her account and in addition casting aspersions
on the appellant and his brothers and further stating that he had
made a Will and had got it registered and had deposited it with
Markand Gandhi. She further pleaded that even after Vipin
Pandya’s death efforts at an informal mediation by Justice S.K.
Desai, a former Judge of the Bombay High Court had been made,
but again without success. It was further pleaded that an
attempt was being made to dispose of the huge properties left by
the deceased in a surreptitious manner so that the money could
be embezzled by the so-called heirs of the deceased. It was
accordingly prayed inter alia that as she was a creditor of the
estate of the deceased in the sum of Rs. 1,84,80,000/-, this
amount alongwith interest @ 21% p.a. from the date of the suit
till the payment was released to her and such other sums as
were due to other creditors be also paid to them or secured in
such manner as was deemed appropriate and that to secure the
safety of the assets, a Court Receiver be appointed as well. The
appellant thereupon took out the present Notice of Motion (No.
1207 of 2004) seeking leave of the court to deposit to the credit of
Suit No. 4892 of 1998 an amount of Rs.1,20,00,000/- or any
amount that the court may determine, or in the alternative to
furnish a bank guarantee, for the said amount. The respondent
in her affidavit in reply dated 16th June, 2004 pointed out inter
alia that the Chamber Summons had been taken out to delay the
hearing of the testamentary suit which was posted for the
recording of evidence and that the claim preferred by her in the
civil suit was not time barred. She also filed an additional
affidavit deposing that the present notice of motion was similar in
terms to Notice of Motion No. 816 of 2004 which had earlier been
taken in suit No. 4892 of 1998. By an order dated 29th July,
2004 the learned Single Judge of Bombay High Court dismissed
the notice of motion holding that as Chamber Summons No. 990
of 1996 had already been rejected by the learned Single Judge
which order had been confirmed by the Division Bench of the
Bombay High Court on 4th March, 1997 and the Special Leave
Petition which had filed in the Supreme Court had also been
dismissed and that the issue as to whether Smita Patel had any
caveatable interest had been deleted by the Court vide order
dated 16th August, 2001 in Chamber Summons No. 241 of 2001,
the question or otherwise of her caveatable interest was no longer
in dispute. The learned Single Judge then noticed the offer of the
present appellant who was a defendant in Civil Suit No. 4892 of
1998 to deposit not only a sum of Rs. 1,84,20,000/- as claimed
in Civil Suit No. 4892 of 1998 but in fact to make a deposit of
Rs.2,40,00,000/- which would cover the claim calculating
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interest @ 18% p.a. on the principal sum of Rs. 1,20,00,000/- till
date, but as no deposit had actually been made nor any bank
guarantee furnished, the notice of motion could not be allowed.
4. The matter was thereafter taken by the appellant before
the Division Bench which (as already referred to above) declined
to interfere in the matter and dismissed the appeal in limine
observing that even if the amount was deposited by the appellant
it would still not settle the claim of the respondent or discharge
her caveatable interest. It is in these circumstances that the
matter is before us by way of special leave.
5. We have heard Mr. R.F. Nariman, learned counsel for the
appellant and respondent Smita Ambalal Patel, appearing in
person.
6. It has been urged by Mr. Nariman that the earlier set of
proceedings i.e. Chamber Summons No. 990 of 1996 which had
culminated in this court, the interest that the respondent
claimed in the estate of the deceased Vipin Pandya had not been
spelt out, but subsequently by the filing of Civil Suit No. 4892 of
1998, the respondent had herself quantified the amount
allegedly due to her as a creditor of the deceased and as the
appellant was willing to pay even more than the sum claimed in
the civil suit as had been noticed by the Learned Single Judge in
his order dated 29th July, 2004, there was absolutely no reason
whatsoever to hold that the respondent’s caveatable interest still
existed. It has been pleaded that despite of fact that the
respondent had time and again referred to a Will executed by
Vipin Pandya and had often threatened to produce the same in
court, she had not done so despite the fact that the testamentary
suit had been filed way back in 1996 and she had in this
interregnum fought the proceedings in every possible forum, both
civil and criminal. It was also argued that even assuming that a
remarriage had not been performed by Ila Pandya appellant with
Vipin Pandya on 15th January, 1987, the property left by him
would devolve on his siblings, who had in their affidavits pleaded
that a re-marriage had indeed taken place and that Ila
Pandya was the widow and was therefore entitled to all his
property and that they had absolutely no objection if the letters
of administration were granted to her. It has further been
contended that the respondent had till today not alleged that she
had any interest in the assets of the deceased other than that of
a creditor for the aforesaid quantified figure. He has finally
contended that the appellant was willing to pay any amount
which this court found adequate so as to bring the entire set of
bitter and acrimonious proceedings between the parties to an
end.
7. The respondent appearing in person, however,
categorically rejected any possibility of a settlement and also
referred to several letters and documents on record pointing out
that the advocates who had been appearing in these and
connected proceedings from time to time had been guilty of
defrauding her of her due and that in the light of fact that the
Supreme Court had also declined the appellant’s prayer for
issuance of Chamber Summons challenging her caveatable
interest, the matter being res-judicata no further proceedings
were justified on account of the present notice of motion. On the
last date of hearing i.e on 3rd May, 2007 she had also submitted
written arguments in the form of an affidavit which we have
taken on record in which she at the very outset deposed that Mr.
Nariman had on 11th January, 2007 made an offer to pay a sum
of Rs. 4 crore by way of a settlement but that this amount was
not acceptable in view of the huge properties left by the deceased
and that the properties identified in the amended schedule of
assets shown at item Nos. 4, 5, 6 and 10 (a),(b), 11 (a)(b), 12 and
18 in addition to some amount towards counsel fee alone would
be acceptable.
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8. We have considered the arguments advanced before
us. It is true, as has been contended by the respondent, that
Chamber Summons No. 990 of 1996 taken out by the appellant
had been dismissed on 23rd December, 1996 by Upasani, J. with
the observation that though the normal procedure for the
recovery of a debt due from a deceased was a suit by the creditor
against the beneficiaries of the estate but in the peculiar facts of
the case the respondent did have a caveatable interest.
Concededly this order had been confirmed by the Division Bench
of the Bombay High Court and thereafter by the Supreme Court
with the Special Leave Petition being dismissed in limine.
However, we find that Civil Suit No. 4892 of 1998 had been filed
subsequently and it is at this stage that the present notice of
motion has been moved by the appellant conceding her claim and
undertaking to deposit all sums due to her before the Bombay
High Court. We are therefore unable to understand that in the
background that the respondent has claimed only a creditors
interest in the estate of the deceased and on no other
relationship or basis in the several proceedings that have been
filed by her, can it be pleaded that her caveatable interest still
continued to survive? It bears repetition that the respondent
has time and again referred to a Will allegedly executed by Vipin
Pandya and had even in the arguments before us repeatedly
asserted that she would produce it in the testamentary suit
pending in the Bombay High Court, but has not done so till day
though the suit had been filed in the year 1996 and is at the
stage of the recording of evidence. On the contrary we find that
Vipin Pandya’s siblings have given affidavits identifying Ila
Pandya appellant as his widow and legal heir and deposing that
they had no objection to the letters of administration being
granted to her. We are thus unable to comprehend or fathom the
right that the respondent still claims in the estate of the deceased
so as to maintain her status as a caveatrix. The written
arguments submitted by the respondent are completely silent on
this aspect, and rake up absolutely irrelevant issues.
9. There is yet another disturbing feature of this case
which needs to be highlighted. We must, at the outset,
emphasize that a litigant appearing in person does not enjoy a
status higher than that of a lawyer arguing a case for his client.
We are also aware that such a litigant is nevertheless given extra
consideration by the court for several justifiable reasons; first,
the torturous and cumbersome court procedures are truly
debilitating and tend to exhaust and frustrate the most hardened
and energetic litigant, often making him bitter about the entire
system; secondly as a layman with limited knowledge of law he
is unable to distinguish between a relevant and an irrelevant
argument leading to verbosity and finally, being over sensitive to
his case with the opposite counsel and Judge often being
identified as belonging to a hostile camp, an occasional
digression or deviation from established norms and mores is
tolerated. We have, however, come to notice a growing tendency
on the part of some litigants to misuse the latitude granted to
them and to deliberately create a situation whereby the
functioning of the court becomes an impossibility thus stultifying
the entire judicial process. Smita Patel falls eminently within
this category. During the course of arguments spread over parts
of three days she refused to argue on the merits of her case and
on the issues raised by Mr. Nariman but used foul language for
some of the counsel who had been associated with this and other
connected matters dubbing them as criminals closely associated
with those who had been responsible for the Bombay blasts. We
had at first advised her to be careful and to refrain from making
baseless allegations against those who were not before the Court
as parties and had subsequently cautioned her that she was over
stepping the limits of decency which would compel us to take
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unpleasant steps against her, but to no avail. On the contrary
she shouted back that the court could do whatever it liked but
she would continue to expose the advocates who were a threat to
the safety and security of her country. Finding it impossible to
proceed any further we were constrained to record the following
order on 3rd May, 2007:
"The respondent, appearing in person, had
started her arguments in this case on 28.3.2007
at 3.00 p.m. and the matter remained part-
heard on that day. Thereafter, she resumed her
arguments on 12.4.2007 at 3.15 p.m. and did
not complete even on that date. Thereafter, the
matter came up for hearing on 19th April, 2007
when a telegram sent by the respondent was
placed before us in which she had requested for
adjournment of the matter till 2nd May, 2007.
That is how the matter is before us today.
The respondent, appearing in person,
resumed her arguments at 10.40 a.m. She has
not addressed any argument so far which may
be considered to be relevant to the issue
involved in the appeal before us. We have
repeatedly tried to persuade her to deal with the
submissions urged on behalf of the appellant.
Rather than doing that, she has been reading
before us various documents in the different
volumes of the paper book relating to the
conduct of certain advocates and she insisted
that she is concerned about the misconduct of
the advocates who have held this country to
ransom and who have associated in causing
bomb blasts in this country. When we tried to
explain to her that we are not concerned with
those issues and we are concerned with only
those issues which are relevant to the dispute
before us, she retorted that she is very much
concerned with the misconduct of lawyers and
her real fight is against them not the appellant
and therefore, we must hear her on those
issues. When we explained to her that those
issues are irrelevant and she must confine
herself to the relevant issues she raised her
voice and started addressing the Court in a
manner unbecoming of even a party appearing
in person. Having regard to the fact that she is
a lady and she is appearing in person, and that
she may have a grievance, we tolerated her to
the extent possible. Her conduct is now beyond
tolerance. She has reduced the judicial
proceeding to a mockery. Since she is wasting
the time of the Court by referring to irrelevant
record and not addressing the Court on the
issues involved, we are constrained to close the
arguments. Since the respondent persists in
raising her voice and making irrelevant
comments in a manner which completely erodes
the sanctity of judicial proceeding, we shall only
be wasting the time of the Court, if we continue
to hear the respondent further. We shall
proceed to pronounce our judgment in due
course.
The respondent who appears in person has
handed over to us written arguments on
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affidavit and prays that her written submissions
may be taken into consideration. We shall
certainly take into consideration the written
arguments submitted by her".
10. We have also gone through the earlier record of
proceedings and find a very disturbing picture indeed. It appears
that the testamentary suit was fixed for framing of issues before
Deshpande, J., of the Bombay High Court on 25th August, 2000,
when she misbehaved in Court on which a notice to show cause
as to why action for contempt of Court should not be taken
against her was served on her there and then and eight days time
was allowed to file a reply. The Learned Judge thereafter by his
order dated 17th August, 2000 found her guilty under Section 12
of the Contempt of Courts Act, 1971 and sentenced her to
undergo simple imprisonment for three weeks and to a fine of
Rs.2000/- in default, to undergo a sentence for one week and
also directed her to pay Rs.5000/- as costs to the counsel for the
petitioner. The observations in the aforesaid order tell their own
tale and we re-produce hereunder some paragraphs from it :
"This matter was on board on 25.8.2000
for framing issues, when for no reason and
without any provocation from the advocate for
the petitioner Ms. Farishte Sethna, contemner
lost her temper and started making accusation
against Ms. Sethna, in particular, and
advocates in general calling them Virappan, the
dreaded sandal decoit from South, kidnapping
Justice and dictating terms to the judges. She
was warned repeatedly by me of consequences
for making such reckless allegations. But she
continued to make them without taking into
account all the warnings. She lost her temper,
sense of propriety and not maintaining decorum
and created chaos in the court room.
Then and there is a notice was served
upon her as to why action for contempt should
not be taken against her. She was given eight
days time to give reply.
Not affected in the least by contempt notice
served upon her, the contemner Smita Patel
came to the court on 2nd or 3rd day with an
affidavit and started asserting that she had said
something more against the advocates and that
should be include in the contempt notice. The
affidavit was not taken by me on record with a
warning that she was aggravating the situation
and that may lead to trouble for her. However,
Smita Patel filed an affidavit in reply to the show
cause notice on 4.9.2000. She also filed
thereafter another affidavits dated 15.9.2000
and 4.10.2000. In the same manner, the
petitioner Ila Vipin Pandya, who was present
when the aforesaid incident dated 25.8.2000
took place in the Court Room, filed an affidavit
dated 27.9.2000. Thereafter, both, the advocate
for the petitioner Ms. Farishte Sethna and the
contemner Smita Patel were heard by me on
three occasions at length.
It is necessary to note at this juncture that
neither during her oral submissions nor in any
of her affidavits, Smita Patel expressed her
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regrets for her uncalled scandalous allegations
and utterances in the Court against the
Advocates, nor she was at any time apologetic
about her behaviour in the Court. She did not
express repentance or remorse about her
behaviour, but to the contrary during her
argument she contended that she does not want
any sympathy from the court or anybody. In
addition, in her affidavit dated 4.9.2000 she
repeated her allegations. When the contempt
notice was issued to Smita Patel on 25.8.2000.
Ms. Sethna had insisted that Smita Patel also
uttered the words that she has been terorrising
the judiciary. But I had deliberately omitted to
take this as a ground for the contempt notice
because of the compassionate view which a
Court generally has for the litigants fighting
their own cases. However, Smita Patel in her
affidavit dated 4.9.2000 admitting that she
made an oral request to me on 28.8.2000 to
include those words in contempt notice and she
had prayed that the contempt notice be
amended and corrected accordingly and the
words uttered by her that "she has been
terrorising the judiciary" be inserted therein.
If the contemner wants and insists upon
making situation difficult for her, is adamant
and has uncalled for recklessness upon such
insistence, then the Court can not have any
objection, and therefore, while deciding the
contempt notice, I am doing to take cognizance
of those words uttered by her on 25.8.2000 to
the effect that she has been terrorising the
judiciary.
In fact the words uttered by Smita Patel in
the Show cause notice and as now added were
uttered by her before Justice R.J. Kochar also
on 23.8.2000, as submitted and pointed out
before me by Ms. Sethna, Smita Patel in her
affidavit dated 4.9.2000, admitted to have
uttered those words before Justice R.J. Kochar.
However, what happened before Justice Kochar
on 23.8.2000 can not be made subject matter of
the contempt notice because Justice Kochar did
not take any action against contemner Smita
Patel.
From the aforesaid circumstances it would
be clear that utterances of Smita Patel in the
court that advocates are Virappan, they are
kidnapping Justice and dictating the terms to
the Judges and they have been terrorising the
Judiciary are undoubtedly contemptuous and
they are nothing short of criminal contempt
which is defined in Section 2 (c) of the Contempt
of Courts Act, 1971\005\005;
11. The learned Single Judge also recorded that:
"\005\005\005\005\005\005\005.very rarely persons
fighting their own cases in the Courts
behave in the manner in which Smita Patel
has been behaving in the Courts\005\005\005.
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12. And further
"So far as misbehaviour of Smita Patel
is concerned, she has crossed all the limits.
So far as misbehaviour in Court is
concerned, she is in the habit of loosing
temper in Court, shouting and raising her
voice, scorning at the advocates, making
faces, and gestures contemptuous to the
other side, making show to the public,
addressing the huge mob\005\005\005\005."
13. And yet further
"Even while arguing this show cause
notice Smita Patel did not stop and did not
control her expressions. She was
contemptuous while Ms. Sethna addressing
the Court. She was making faces in the
Court, laughing and smiling as if the
contempt notice is a prize or garland offered
to her by the whole judicial system for her
fighting against so called corruption and
unfair tactics of the advocates\005\005\005\005\005"
14. Deshpande, J. also referred to her misbehaviour in other
Courts as well and to the proceedings before Upasani J., in
which she had made the following order:
"Caveatrix S. Patel who is appearing in
person is shouting very loudly and is
disturbing the Court proceedings. Actually
she is talking and screaming in a very high
pitch which makes it impossible for the court
to go on with the hearing of this
matter"\005\005\005\005\005\005\005\005\005
"\005Mr. D.S. Parikh has agreed to the
expeditious hearing of the petition and the
suggestion was made to hear Notice of Motion
along with petition at an early date. However,
the Caveatrix, after hearing this suggestion,
has backed out and has started speaking all
sorts of irrelevant things accusing Advocates,
the judicial systems in general, without giving
specific reply to the query made by the Court.
In the commotion caused by the shouting and
screaming of Ms. Patel, it is not possible to go
on with the proceedings. The Court is,
therefore, constrained to adjourn the matter to
the next date.
At this stage, Mr. D.S. Parikh, who is
appearing for the petitioner, makes an earnest
oral request, in view of the allegations hurled
by the Caveatrix against the Advocates and
judicial system and in view of the commotion
which is being created by the Caveatrix and in
view of the irrelevant speeches obviously
intended for playing to the gallery that the
proceeding be tape-recorded so that whatever
unwarranted, irrelevant and almost
defamatory remarks are passed by the
Caveatrix would be recorded".
Heard Mr. D.S. Parikh, so also the
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Caveatrix. The Caveatrix is shouting loudly to
the effect that "why tape recorder, even Video
Camera should be fitted in the Court Room
and every thing should be recorded".
Perused the proceedings. It was informed
to this court across the bar that even my
predecessor Mrs. Baam J, had given directions
that a lady constable should remain present in
court obviously in view of the violent nature
and frequent outbursts of the Caveatrix. On
this backgraound, the Caveatrix obviously
appears to be out of control and is in fact
disturbing the court proceedings; the
suggestion made by Mr. D.S. Parikh appears to
be worth taking notice of it. Hence, the
following order is passed:
Mr. D.S. Parikh may bring his tape
recorder on the next date and the Court may
consider whether the proceedings should be
recorded or not on that day".
15. On 24th December, 1997 Upasani, J also passed the
following order:
"\005\005There used to be always heated
arguments and outbursts, unwarranted
remarks; playing to the gallery-attitude on the
part of the Defendant, and there used to be
always atmosphere of chaos in the Court
Room. The hearing therefore, could not take
place in the congenial, peaceful and disciplined
atmosphere as it should be in any Court of
Law. Very often, the Defendant has gone
astray while arguing the matter and has
deviated from the averments made in the
Chamber Summons, making some results and
many of the points remained to be clarified in
the utter chaos that ensued".
16. It appears that earlier to these proceedings, Patel, J., on
6th March, 1997 had recorded as follows:
" The Defendant stated that by the draft
Chamber Summons she was seeking urgent
reliefs. She insisted that the same could
therefore be taken up for hearing. Accordingly,
the Defendant was given a patient hearing for
the plaintiff rose up to make his submission. He
hardly argued for five minutes when he was
interrupted by the Defendant with the result he
could not continue the submission. It was
noticed that through out the hearing the
Defendant was noisy and she was talking at the
top of her voice. She not only talked irrelevant
things but also made wild allegations against
the advocates as well as the staff of the Court.
She was in angry mood and she did not listen to
any advice given by me to be reasonable and
relevant. On the contrary, she went on
shouting that she would not bother even if she
were to be hanged. The behaviour of the
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Defendant in the Court Room was highly
undignified and objectionable. In fact, it is
found that she has been conducting herself in
the same manner whenever she appears in the
Court. This is not only my experience but also
of the other learned Judges before whom the
Defendant appeared in this matter. My
attention was drawn to the order dated 10th
December 1997 passed by Dr. Upasani, J. in
Chamber Summons No. 446 of 1997 wherein
observations about the objectionable demeanor
of the Defendant are made. Shri Merchant, the
learned Advocate for the plaintiff therefore
submitted that the Court should take stern
action against the Defendant for her
misbehaviour. The Defendant being a lady, not
represented by any advocate, was shown some
indulgence and tolerance. However, the Court
will have to think seriously in case the
Defendant persists in misusing the indulgence
so as to disturb and obstruct the court
proceedings".
17. Yet later, Datar J., on 27th April, 1998 observed that
Mr. Humranwalla for the petitioner/plaintiff had stated that
M/s. Humranwalla & Co. was thinking of withdrawing from the
matter because of the wild allegations made by the Caveatrix,
and that Mr. Merchant, learned counsel for the petitioner had
also refused to appear in the matter.
18. Reference was also made to an order of Bamm, J, who
had recorded:
"At this stage, when the notice of motion is
called out, the respondent \026 Ms. Smita Ambalal
Patel \026 appeared in person and re-agitated the
issue of the review petition which has already
been decided on the last Wednesday. When
questioned whether she wanted to go on with the
hearing of the notices of motion, she stated that
she wanted xerox copies of the documents to
which the Learned Advocate for the petitioner
stated that every time when an adverse order is
passed, this litigant applies for time to ensure
that the matter is removed from the board of that
particular Court. To this statement, the litigant
started shouting in Court and made scandalous
allegations considerations". This irresponsible
behaviour and conduct which the respondent has
been adopting from time to time when adverse
orders are passed tends to prejudice the
confidence of the litigants in Courts who are
present in Court for the administration of justice
and disturbs the decorum of the Court.
Hence the Prothonotary and Senior Master
is directed to issue a show cause notice to the
respondent \026 Ms. Smita Ambalal Patel \026 calling
upon her as to why contempt proceedings should
not be adopted against her. Even when I passed
the order of issuance of show cause notice, the
respondent cannot dictate to the presiding judge
as to what order the Court should pass. The
respondent thinks that she knows everything and
time and again she disturbs the proceedings in
the Court and thereby prejudices the progress of
other matters in the Court. She left the Court in
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a huff and puff and again shouted to the effects
"the Learned Advocate for the petitioner, Shri
Humranwalla, should go in jail". This is the
attitude adopted by her from time to time which
does not befit a litigant. By this behaviour which
she has been adopting from time to time, by
shouting and screaming in Court, she has been
causing nuisances and prejudices the Court
proceedings, and every time when the order is
padded, which is not to her liking, she creates
contemptuous atmosphere which not only
disturbs the decorum of the Court, but also
prejudice the progress of the proceedings in the
Court".
19. Baam J., thereafter issued a suo moto notice of contempt
of court to the respondent and the matter was transferred to R.J.
Kochar, J., who while holding her guilty, took a lenient view and
discharged the notice cautioning her to keep her balance and not
to lose her temper. The learned Judge also noted that the
outbursts of the respondent had compelled several Judges
including Baam J., to transfer the case from their Courts.
20. The respondent filed an appeal against the order
dated 17th August, 2000 before a Division Bench of the Bombay
High Court, which in its order of
16th November, 2000 recalled the facts of the case and held as
under:
"We have patiently ploughed through the
long affidavits and we find them bristling with
wholly irrelevant particulars for replying the
Show Cause Notice issued to the contemner. She
has also indulged in bulky correspondence with
the Prothonotary and Senior Master by
addressing a number of letters to him and
placing on record what transpired during the
course of the hearing according to her. She
insisted that the Court should accept the truth of
the allegations contained in those letters
addressed to the Prothonotary and Senior Master
as they were not controverted by any one".
xxxx xxxx xxxx xxxx xxxx
"At the outset, we felt that the contemner
being a lay person was, perhaps, likely to be
impetuous on account of the trauma which she
might have undergone during a series of
litigations, which she had to prosecute in this
Court. Though the appeal as such involves very
limited issues of fact and law, we have given the
contemner a disproportionately long and patient
hearing lasting the whole of yesterday and
virtually half of the morning session today.
During her long rambling arguments, at times
incoherent and punctuated by bitter sobs and
impassioned pleas, the contemner made a few
points of law, which we have noted. On one such
point, we thought that we should call upon a
natural impartial counsel to address the Court.
We, therefore, requested the learned Advocate
General to address us with regard to the question
of law. We express our grateful appreciation of
the assistance rendered by the learned Advocate
\026 General".
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xxxx xxxx xxxx xxxx
"The next question that arises is, whether
the learned Judge was justified in the quantum
of punishment imposed on her. In view of the
contemner’s history that we have narrated, it
appeared to the learned Single Judge, and it
appears to us too, that the leniency showed by
different learned Judges was misconstrued as
weakness by the contemner. It may be that the
contemner is the victim of circumstances where
under someone cheated her and some advocates
behaved unprofessionally in connection with her
litigation. It may also be possible that she has
lost her mental balance because of the said facts.
(Though, considering the manner in which the
contemner coolly argued the appeal before us, we
are not inclined to believe that she has really lost
her mental balance). These were the
circumstances specifically considered by Kochar,
J. when he discharged the contempt notice
issued to the contemner in view of the apology
tendered, undertaking given, and the promise of
future good behaviour. It appears to us that the
trust and confidence reposed by Kochar, J. in the
contemner stood betrayed on account of her
conduct before the learned Single Judge
(Deshpande, J) the details of which we have
already referred to. Considering the different
orders passed by the different learned Judges of
this Court and, the circumstances under which
each of the said learned Judges felt that the
contemner was taking undue advantage of the
leniency of the court and behaving in a manner
obstructive or decorous administration of justice
in the court, we are not in a position to say that
the learned Single Judge has imposed a
disproportionate quantum of punishment, in view
of the background of the case".
21. The Division Bench accordingly confirmed the order of
the Learned Single Judge. The matter was thereafter brought
to this Court by way of Criminal Appeal No. 382 of 2001, and
on the "fervent appeal" made by Mr. V.S. Kotwal, her Counsel
that some indulgence be shown to her as she would hereafter
not perpetrate any contempt of court and further observing that
as she was a lady it appeared that the apology was infact
genuine, by order dated 26th March, 2001 directed that the
sentence imposed would remain suspended for a period of five
years on the following conditions:
1. "Appellant shall give an undertaking
before the Single Judge (before whom
the contempt was committed by her)
in the form of an affidavit that she
will not commit any act of contempt
of any court hereafter;
2. If the said undertaking is violated the
sentence of imprisonment imposed on
her will automatically review and
appellant will be liable to be put in
prison for undergoing that part of the
sentence;
3. The fine part of the sentence as well
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as the orders to pay cost would
remain undisturbed and appellant
shall not apply for refund of the
same;
4. If the appellant fails to give the said
undertaking within four weeks from
today she will forfeit the benefit
granted as per this order; and
5. As to what would be the situation
after the period of five years will be
decided by the High Court on a
motion made by the appellant
contemnor.
With these observations this appeal is disposed of".
22. We find that in the light of the above directions we could
send her to jail to serve out her sentence, but we desist from
doing so.
23. The matter does not end here. We had, as already
indicated, closed arguments on 3rd May 2006 by a speaking
order. On the very next day some applications on affidavit dated
4th May 2007 tendered apparently by the respondent were sent to
us, again referring to some of the proceedings that had been
going on and again raking up irrelevant issues. We reproduce
hereunder and verbatim some extracts therefrom:
"Thereafter, in the midst of the
arguments of the respondent, the learned Senior
Counsel Mr. R.F. Nariman got up and stated
that they were prepared to offer anything for
settlement. The respondent had at this
juncture, furnished two sets of "written
arguments on affidavit of the respondent dated
02.05.2007" to the court and one to the learned
Senior Counsel Mr. R.F. Nariman and prayed for
the say of the Learned Counsel as well as the
appellant. The Court read the entire affidavit.
The respondent states that the appellant who is
the front/ostensible party of the advocates on
record engaged by the underworld who are the
real parties and have been repeatedly violating
the orders/undertaking/status quo orders of
the Bombay High Court, tempering with judicial
order of the court as well as the courts record
with the connivance of the court staff. These
advocates have no regard for truth and the
courts of law. The respondent states that it is
untrue and incorrect to record by Your
Lordships that the respondent does not want to
argue on points raised by the learned Senior
Counsel Mr. R.F. Nariman for the appellant and
therefore the court is closing the respondent’s
arguments. In fact he had completed his
argument on 11.4.2007 and the respondent had
started her argument on 11.4.2007 from 2.15
p.m. to 4.00 p.m. and on 12.4.2007 from 3.15
p.m. to 4 p.m. and on 03.05.2007 from 10.45
a.m. to 12.15 p.m. and has partially dealt with
the learned Senior Counsel Mr. R.F. Nariman’s
argument".
xxxx xxxx xxxx xxxx
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"The application dated 26.04.2007 (without
annexures) made to the Hon’ble the Chief Justice of
the Bombay High Court by the respondent and
inter-alia prayed that the only way to weed out the
cancer of corruption from the judiciary and prevent
the unholly nexus between the few corrupt
advocates and the court staff is "To hang the victim
Smita Patel from the strong hook kept in the
Central Court of the Bombay High Court instead
from a lamp post on 15th August 2007 on the
Independence Day under the directions of the
coming Chief Justice Shri Swatanter Kumar.
In the light of the above submissions, the
respondent states that she has not said anything
that would attract contempt of courts action against
her. However, if this Hon’ble Court still inclined to
initiate contempt notice, the respondent prays as
under:-
(A) This Hon’ble Court be pleased to order that
from the Platform Plaza (in the front of the Hon’ble
Chief Justice Court Room No.1) the respondent be
shot from a cannon and killed like "Rani Laxmibai-
The Jhansi Ki Rani" who was shot and killed by the
Britishers as was the practice.
(B) A dynamid be directed to be kept and the
respondent is willing to sit on the lap of the statue
of Mahatma Gandhi situated in front of the garden
lawn of the Supreme Court and light the fuse
herself."
Nota Bene: Some of the extracts in the preceding
paragraphs have spelling and grammatical errors, but we have
reproduced them verbatim from the record before us.
24. It is indeed disgusting to see a litigant attempting to
intimidate the Supreme Court and two of its Judges in such a
crude and obnoxious manner.
25. A resume of the facts clearly reveal the incorrigible and
recalcitrant attitude of the respondent. We could perhaps
condone her errant conduct if she was merely a highly strung
and impetuous lady over-sensitive to her case and unaware of
the nuances of the law and the decorum to be maintained in
Court but we are satisfied that no ignorance nor mental
imbalance is discernible which can be pleaded in extenuation of
her behaviour. The record reveals that she is well aware of the
conduct of the judicial process and the law and facts relating to
her case, but she has evolved a strategy which has thus far kept
her in good stead as it has been designed to filibuster the
proceedings in case she finds that they are not taking the
direction that she has chalked out and that despite her
conviction for contempt of court on two occasions and numerous
admonitions and warnings notwithstanding, she has remained
unfazed and has in a most unbecoming manner relentlessly and
ruthlessly pursued the litigation. We also quote yet again from
the judgment of the Division Bench dated 16th November, 2000:
"It may also be possible that she has lost
her mental balance because of the said facts.
(Though, considering the manner in which the
contemner coolly argued the appeal before us,
we are not inclined to believe that she has
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really lost her mental balance)".
We completely endorse this observation.
26. We must emphasize that a Court is not a forum which
can be used for spewing venom and vitriol on the opposite party,
and even more alarmingly, on the judge hearing the case and the
counsel representing that party. The written arguments that the
respondent has filed in court betray her purpose. The new
demands clearly reveal her intention to extort as much as she
can from the appellant, who, it must be presumed, is exhausted
and drained by the huge number of court proceedings that have
been going on for the last 11 years.
27. We have advisedly given the detailed history of this
litigation to emphasize that those who attempt to take court
proceedings lightly or try to subvert the judicial process to their
advantage, do so at their peril. The imposition of exemplary
costs must, as a consequence, follow.
28. In this view of the matter we allow this appeal and set
aside the order dated 29th July, 2004 of the learned Single Judge
and 25th August, 2004 of the Division Bench and allow the notice
of motion and direct that the appellant shall, within a period of
three months from today deposit a sum of Rs.2,40,00,000/- in
all with the prothonotary of the Bombay High Court (and after
deduction of the costs) the balance to be disbursed to the
respondent in full discharge of her claim as a Caveatrix in the
testamentary suit and as a plaintiff in Civil Suit No. 4892 of
1998, and that no application of whatever nature in respect of
these two matters will hereinafter be entertained by any Court.
We are also of the opinion that as a consequence of the above
direction and in the interest of justice the respondent’s interest
as a caveatrix shall stand discharged and the Civil Suit filed by
her shall also be deemed to be disposed of.
29. We also impose costs of Rs. five lakhs to be recovered
from the sum awarded as above. The amount representing the
costs will be donated to a charity to be identified by the Chief
Justice of the Bombay High Court.