Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CONTEMPT PETITION (CIVIL) Nos. 12-13 of 2006
IN
SPECIAL LEAVE PETITION(CIVIL) Nos.7659-7660 OF 2004
PATEL RAJNIKANT
DHULABHAI & Anr. … Petitioners
VERSUS
PATEL CHANDRAKANT
DHULABHAI & Ors. …Respondents/Contemners
J U D G M E N T
C.K. Thakker, J.
1. The present contempt petitions are
filed by the petitioners against respondent
Nos. 1 to 3, alleged contemners, praying that
they be held guilty of ‘civil contempt’ for
violating orders passed by this Court on April
26, 2004 and on January 10, 2005 and be
punished accordingly. A prayer is also made
directing the contemners to deposit the amount
received from third parties in consideration of
2
transfer of property effected by them during
the period of interim orders of this Court.
2. Shortly stated the facts of the case
are that petitioners and respondent Nos. 1, 4
and 5 (in Special Leave Petitions) are real
brothers and heirs and legal representatives of
one Dhulabhai Patel. It was the case of the
petitioners that in 1961, one Chandulal
Muljibhai Parikh and Dhulabhai Patel (father of
petitioners and respondent Nos. 1, 4 and 5)
purchased land bearing Revenue Survey Nos.
459/2, 464, 465, 466/1 and 466/2 admeasuring 6
acres and 9 gunthas of village Atladara, Taluka
and District Baroda in the State of Gujarat
from one Parvatibai Ingle by a registered sale
deed. According to the petitioners, the amount
of consideration was paid from the funds of
Hindu Undivided Family (HUF) of Dhulbhai Patel,
but name of respondent No. 1 Chandrakant
Dhulabhai Patel was shown as the purchaser of
the property being the eldest son of decdeased
Dhulabhai Patel along with Chandulal Muljibhai
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Parikh. Respondent Nos. 4 and 5 were minors at
that time. Respondent No. 1, Chandrakant
Dhulabhai Patel was also studying in a college
and was having no source of income whatsoever.
The entire amount was paid by deceased
Dhulabhai. According to the petitioners,
several documents revealed that the property
was managed by HUF of Dhulabhai Patel. In
October, 1986, Dhulabhai died. No partition by
metes and bounds had been effected between the
sons of deceased Dhulabhai and the property
continued to remain as HUF property. The
petitioners used to manage property after the
death of Dhulabhai.
3. In 1990, a Memorandum of Understanding
(MoU) was entered into between respondent No.
1, Chandrakant Patel, being eldest son of
Dhulabhai Patel family on one hand and heirs of
deceased Chandulal Parikh on the other hand
whereunder it was agreed that a portion of land
towards western side would be treated as
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property of deceased Dhulabhai Patel and his
family members.
4. In 1998, however, respondent No. 1 in
conspiracy with third party and behind the back
of the petitioners and respondent Nos. 4 and 5
executed an agreement to sell the share of HUF
property belonged to the petitioners and other
members of deceased Dhulabhai Patel. A
collusive suit came to be filed by respondent
Nos. 2 and 3 (partners of M/s Om Shivam
Corporation) in the Court of Civil Judge
(Senior Division), Baroda, being Special Civil
Suit No. 311 of 1999 for specific performance
of agreement, dated January 18, 1998 against
respondent No. 1 and within less than a month,
a collusive and fraudulent consent decree was
passed. The petitioners were neither aware of
the suit nor the decree passed therein. It was
only when a caveat was filed by M/s Om Shivam
Corporation, a partnership firm that the
petitioners suspected foul play. They,
therefore, made an inquiry and came to know
5
about the suit and collusive decree.
Immediately, they filed a suit being Special
Civil Suit No. 605 of 2002 in the Court of
Civil Judge, (Senior Divison), Baroda for
declaration, partition of joint family property
and their share in the said property. Along
with the plaint, the petitioners filed an
application (Exh. 5) under Order XXXIX, Rules 1
and 2 read with Section 151 of the Code of
Civil Procedure, 1908 (hereinafter referred to
as ‘the Code’) for interim injunction
restraining the defendants from putting up any
construction on the land admeasuring 1,43,000
sq. ft. towards western side of the land
bearing Revenue Survey Nos. 459/2, 464, 465,
466/1 and 466/2 and from entering into any
transaction of sale, gift, mortgage or from
dealing with the property in any other manner
or from handing over possession of the suit
land to anyone else. The trial Court issued
notice to the defendants, but did not grant
injunction as prayed by the petitioners-
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plaintiffs. The petitioners challenged the
said order by filing Appeal from Order No. 140
of 2003 and the High Court of Gujarat vide its
order dated May 2, 2003 directed the trial
Court to dispose of the Application (Exh. 5) on
merits within 15 days from the re-opening of
the courts after summer vacation.
5. The trial Court thereafter heard the
matter and dismissed the Application by
refusing interim injunction. The petitioners
once again preferred an appeal against the said
decision in the High Court being Appeal From
Order No. 241 of 2003. Along with Memorandum of
Appeal, the petitioners filed Civil Application
No. 5083 of 2003 for interim injunction. In
paragraph 8 of the Civil Application, the
petitioners prayed for interim relief. The
High Court by an order dated July 23, 2003,
granted ex-parte ad interim relief in terms of
paragraph 8(A).
6. The said paragraph read as under;
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8. The applicants, therefore, pray
that :
(A) Pending admission, hearing
and final disposal of the
aforesaid Appeal from Order,
the Hon’ble Court may be
pleased to issue an
injunction restraining
opponents Nos. 1 to 3 herein,
from putting up any
construction on the suit land
either themselves or through
their agents and/or servants
and from disposing of the
said property or creating any
interest therein in favour
of a third party either by
sale, mortgage, transfer,
assignment, gift or in any
other manner whatsoever.
7. It is thus clear that though interim
injunction was refused by the trial Court, the
High Court on July 23, 2003, granted the prayer
of the petitioner and issued interim injunction
during the pendency and final disposal of
Appeal from Order instituted by the
petitioners-appellants.
8. The High Court then heard the matter
and by judgment and order dated March 26, 2004
dismissed the appeal observing that considering
8
the facts and circumstances of the case in
their entirety, the order passed by the trial
Court below Application Exh. 5 called for no
interference. Interim relief which was granted
earlier was ordered to be vacated.
9. The learned counsel appearing for the
petitioners-appellants in the High Court, at
that stage, made a prayer to the Court to
continue interim relief granted earlier so as
to enable the petitioners-appellants to
approach higher forum. After hearing the
learned counsel for the parties and noting
objections raised by the other side, the Court
continued interim relief granted earlier for
four weeks.
10. Paragraphs 35 and 36 of the judgment
which are relevant read as under;
35. Considering the entire facts and
circumstances of the case and
having regard to the legal
position concerning the point in
issue, this Court is of the view
that the impugned order passed by
the Trial Court below an
application Exh. 5 does not call
for any interference in this
9
Appeal From Order. Accordingly,
this Appeal From Order is
dismissed. Interim relief granted
earlier is vacated.
36.
At this stage, Mr. A.J. Patel, the
learned advocate appearing for the
appellants requested to continue
the interim relief granted earlier
by this Court for the period of
six weeks so as to enable the
appellants to approach the higher
forum. Mr. Bhatt and Mr.
Nanavati, learned advocate
appearing for the respondents Nos.
1, 2 & 3 respectively have
strongly objected to the extension
of interim relief. After
considering their submissions on
this issue, the interim relief
granted earlier is extended for
four weeks from today .
(emphasis supplied)
11. Being aggrieved by the said order, the
petitioners approached this Court by filing
Special Leave Petition (Civil) Nos. 7659-7660
of 2004. On April 26, 2004, this Court issued
notice and continued interim order passed by
the High Court which was, as noted earlier, in
terms of prayer para 8(A). The order, dated
April 26, 2004 passed by this Court read as
under;
1
“The interim order already granted
by the High Court will continue
subject to further orders of this
Court”.
12. Notices were served on the respondents
who appeared. Affidavits and further affidavits
were thereafter filed and Special Leave
Petitions were disposed of by this Court on
January 10, 2005.
13. The said order read thus;
“The dispute in these special leave
petitions pertains to the
construction on certain properties
which are claimed to be the joint
family properties. By the impugned
interim order, the High Court has
permitted construction to be made on
the suit properties. We have
considered the reasoning of the High
Court. While not affirming the
correctness of the prima facie
opinion expressed therein, we are of
the view that the interest of the
parties will be adequately protected
if a conditional order is passed.
The special leave petitions, are,
accordingly, disposed of by making it
clear that any construction which is
made by the respondent – purchasers
on the disputed properties will be
subject to the outcome of the suit.
Any third party right which is
created shall be done after notice to
the petitioners. The pendency of the
1
proceedings shall also be notified to
each of the third parties so
involved . The Trial Court is directed
to dispose of the suit expeditiously,
preferably within a period of six
months from the date of the
communication of this order.
(emphasis supplied)
14. The allegation of the petitioners in
the present Contempt Petitions is that in spite
of interim order passed by this Court on April
26, 2004, as modified by final order dated
January 10, 2005, the respondent Nos. 1 to 3
(contemners) dealt with and transferred the
suit property by entering into agreements,
accepted the amount by way of consideration,
executed sale-deeds in favour of third parties
without notice to the petitioners, allowed
construction to be made and thereby committed
wilful disobedience and intentional violation
of the order of the Court and they are liable
to be punished in accordance with law.
15. On these petitions, notices were
issued on February 6, 2006. The respondents
1
appeared and filed affidavits. Having satisfied
that the pleadings were complete, the Registry
was directed to place the matters for final
disposal. That is how the matters have been
placed before us.
16. The learned counsel for the
petitioners contended that in spite of the
orders passed by this Court, the contemners
sold the property, received consideration and
executed sale-deeds. No notice was given to
them about the transactions before they were
entered into. The orders of this Court were
abundantly clear. The first order dated April
26, 2004, totally restrained the respondents
from taking any action during the pendency of
the proceedings. In spite of such clear-cut
order, properties were sold and several other
actions were taken by the contemners and they
are liable to be punished for committing
contempt of Court. It was also submitted that
even under the order dated January 10, 2005,
when Special Leave Petitions were disposed of
1
and earlier interim order was modified, the
contemners had acted in violation of the
directions. And on that ground also, they are
liable under the Contempt of Courts Act.
17. The learned counsel for the
petitioners, in this connection, referred to
agreements to sell as well as sale deeds and
acceptance of part payment or full payment of
consideration during the intervening period
between July 23, 2003 when the High Court
granted interim relief in terms of para 8(A)
and also orders dated April 26, 2004 and the
final order dated January 10, 2005 by this
Court. It was urged that though the suit was
pending before the trial Court and the matter
was sub-judice , in agreements to sell as also
in sale deeds, an express and unequivocal
statement was made by the contemners that their
title to the property is ‘clear’ and
‘marketable’. It was ordered by the Court on
January 10, 2005 that if any third party right
1
would be created, it “shall be done after
notice to the petitioners”. No such notice,
however, was given to the petitioners. It was
only after the properties were sold that a
‘ pursis ’ was filed in the trial Court stating
therein that certain properties were sold by
the defendants. Thus, there was clear breach of
orders of this Court and the contemners are
liable to be punished for violating the interim
orders.
18. The learned counsel for the
respondents-contemners, on the other hand,
submitted that the Contempt Petitions are
liable to be dismissed. The respondents had not
wilfully and intentionally violated interim
orders of this Court. No doubt, the High Court,
granted interim injunction in Civil Application
in Appeal from Order on July 23, 2003 but
finally Appeal from Order itself was dismissed.
Similarly, this Court on April 26, 2004
continued interim relief but ultimately,
dismissed Special Leave Petitions on January
1
10, 2005 by modifying earlier interim order. It
was also submitted that this Court never
ordered to give ‘ prior ’ notice to the
petitioners before entering into any agreement
or executing sale-deed. It was, therefore, not
necessary for the respondents either to issue
notice or to intimate petitioners before
entering into any transaction. But in certain
cases, even ‘ prior ’ notice of transaction was
given to the petitioners by the respondents;
though in some cases, such notice was given
after entering into agreements/transactions but
the same could not be said to be violative of
the orders passed by this Court. Alternatively,
it was submitted that even if the Court finds
that there is ‘ technical ’ breach of the orders
of this Court, the respondents have tendered
unconditional and unqualified apology which may
be accepted by this Court and contempt
proceedings may be dropped against them by
showing magnanimity and taking lenient view.
1
19. We have given most anxious and
thoughtful consideration to the rival
contentions of the parties. We have also gone
through the relevant record and orders passed
by the High Court as also by this Court. We
have perused affidavits and further affidavits
filed by the parties to these petitions. We
have carefully gone through various documents
on record.
20. We have reproduced both interim orders
passed by this Court; (i) order, dated April
26, 2004, and (ii) order, dated January 10,
2005. Under the first order, larger relief was
granted, obviously because at that stage, the
Court on prima facie satisfaction of the case,
issued notice to the respondents. Moreover,
even the High Court which had granted interim
relief on July 23, 2003, continued the said
relief (though Appeal from Order was dismissed
and interim relief was vacated) so as to enable
the aggrieved parties to approach this Court.
On January 10, 2005, however, this Court
1
disposed of Special Leave Petitions. But taking
note of the pendency of the main matter (suit),
the Court did not totally vacate interim relief
but modified it by imposing certain conditions.
The question before us is whether the
contemners had violated both the orders or any
of the two orders and whether such violation or
disobedience was wilful or intentional as
alleged by the petitioners. If so, what
punishment should be imposed on the contemners
and what should be the final order in these
contempt petitions.
21. Before proceeding with the
consideration of rival contentions, it may be
stated for the completion of record that
Special Civil Suit No. 605 of 2002 instituted
by the petitioners herein (plaintiffs) was
decreed by the IXth Additional Senior Civil
Judge, Vadodara on May 23, 2006 and it was
declared that plaintiff Nos. 1 and 2 and
defendant Nos. 1, 4 and 5 each has 3/16 share
in the suit property and defendant Nos. 7, 8
1
and 9 each has 1/48 share in the said property.
Preliminary decree was ordered to be drawn up
accordingly. It was also stated that the
defendants against whom the decree is passed
have challenged the decree by filing First
Appeal in the High Court and the matter is
sub-judice.
22. Now, it is the case of the petitioners
that in spite of interim orders of this Court,
dated April 26, 2004 and January 10, 2005, in
gross violation, wilful disobedience and
intentional breach thereof, the contemners had
sold certain properties without notice to the
petitioners. It was stated that the contemners
executed a sale-deed in favour of Madhuben
Rohit and Jasodaben Thakor on August 30, 2005
for consideration of Rs.3,30,000/-. The
contemners accepted a cheque of Rs.2,00,000/-
bearing No. 531526, dated October 15, 2004.
Similarly, an agreement to sell was executed in
favour of Hemlataben Shah for Rs.3,00,000/- on
May 26, 2005 and the entire amount was received
1
by three cheques; cheque No.719372, dated April
15, 2004; cheque No.719374, dated April 22,
2004 and cheque No. 216684, dated April 29,
2004. Again, a sale deed in favour of Smt.
Ranjit Gulati was executed by accepting a
cheque of Rs.51,000/- dated September 10, 2003,
a cheque of Rs.1,00,000/- dated October 8, 2004
and a cheque of Rs.1,39,000/- dated April 26,
2004. By producing additional documents on
record, the petitioners have stated that sale-
deeds were executed by the contemners in favour
of Jayesh Natwarlal Parikh on August 18, 2005;
Hemaben Jayeshbhai Parikh on August 18, 2005,
Rashmikaben Navinchandra Desai on August 30,
2005 and Tolaram Radharam Popat on April 25,
2005. All these transactions were entered into
in gross violation and breach of the orders of
the Court and the contemners may, therefore, be
punished for committing contempt of Court.
23. The respondents have filed affidavits
denying the allegations levelled by the
petitioners and asserting that they have not
2
committed any act in disobedience of the order
of the Court and the contempt petitions are
liable to be dismissed.
24. Respondent No. 1 (Chandrakant
Dhulabhai), in his affidavit, dated June 16,
2006 (filed on August 17, 2006) stated that the
contempt petitions are ‘primarily’ directed
against respondent Nos. 2 and 3 who are alleged
to have violated the orders of this Court. It
was stated that the orders were required to be
complied with by respondent Nos. 2 and 3 and
were not directed against respondent No. 1. It
was also stated that the respondent No. 1 is 67
years old and has been impleaded just to harass
him without making any averment/allegation
against him. It is, therefore, prayed to
dismiss contempt petitions against him.
25. A counter-affidavit is also filed by
respondent Nos. 2 and 3 controverting the
averments and denying the allegations of the
petitioners in the Contempt Petitions. It was
stated that during the operation of interim
2
order dated April 26, 2004, they had neither
executed any sale deed nor created third party
interest in the suit property. The cheques
said to have been accepted by them during
interim orders represented the amount paid
towards consideration of the apartment booked
prior to the issuance of interim orders.
26. Regarding the allegation that the
title of the suit property was described as
‘clear and marketable’, it was stated that as
per the order of the Court, what was required
to be mentioned was the pendency of the
proceedings. In all the sale deeds, executed
by the respondents, specific recital was made
that the transaction was subject to pendency of
civil suit and final decision therein.
27. Regarding the third allegation of not
giving notice to the petitioners, it was stated
that no ‘prior’ notice was required as per the
order of this Court. It was stated;
a. in order to protect the interest of
the parties, this Hon’ble Court
passed a conditional order stating
2
inter alia “any third party rights
which is created shall be done
after notice to the petitioners”.
This Hon’ble Court has not used the
word “prior” as alleged. This
Hon’ble Court had desired that as
and when third party rights are
created, the petitioners should be
duly informed. The purpose of such
information was to enable the
petitioners to protect their
interest by impleading such third
parties in the pending suit.
b. Admittedly, initially, by pursis
dated 1.3.2005, the petitioners
were given prior intimation about
the creation of third party rights.
However, subsequently it was found
that out of the 11 sale deeds which
were proposed to be executed and
about which prior intimation by
pursis dated 1.3.2005 was given – 7
sale deeds could not be executed
for quite some time, as the deal
could not be finalized. Further,
before executing the sale deeds, 2
buyers/third parties/allottees got
the deals transferred in some other
name, viz. name of their
wife/child.
28. Hence, as per legal advice obtained,
the intimation was being submitted before the
Hon’ble Civil Court after taking endorsement of
Advocate for the petitioner.
2
29. It was further stated by respondent
Nos. 2 and 3 that originally land bearing
Survey Nos. 459/2, 464, 465, 466/1 and 466/2,
admeasuring 26.608 Sq.M. was jointly purchased
by Chandrakant Dhulabhai Patel and Chandulal
Muljibhai Parikh in 1961. In 1990, however, an
understanding had been arrived at between the
heirs and legal representatives of Chandulal
Parikh and Chandrakant Dhulabhai Patel and as
per partition, 50% land situated on the western
side (Part ‘A’) fell to the share of
Chandrakant Patel whereas 50% land on the
eastern side (Part ‘B’) came to the share of
Parikh family. It was further stated that
respondent Nos. 2 and 3 entered into
Development Agreement with Parikh family for
50% eastern side land (Part ‘B’) which came to
the share of Parikh family and also with
respondent No. 1 Chandrakant Patel for western
side of land (Part ‘A’). The scheme was thus
jointly promoted for part ‘A’ land and part ‘B’
land. In course of time, property ‘A’ became
2
disputed property, but there was no dispute as
to property of part ‘B’. It was also stated
that part ‘B’ property abuts 30 metres wide
road while part ‘A’ property abuts 40 meters
wide T.P. Road. Thus, part ‘A’ property (suit
property) was having better location and higher
commercial value.
30. Respondent Nos. 2 and 3 admitted that
Madhuben Rohit and Jasodaben Thakor deposited
Rs. two lacs on October 15, 2004 for booking
one of the shops which was to be constructed on
Part ‘B’ property. But after the disposal of
Special Leave Petitions on January 10, 2005,
the injunction came to an end regarding part
‘A’ property. Under the circumstances, request
of Madhuben and Jasodaben for allotment of shop
in part ‘A’ property instead of part ‘B’
property was favourably considered and
accepted. Cases of Hemlataben Shah, Rashmikaben
and Ranjit Gulati were identical. Sale-deed in
favour of Dr. Tolaram Popat was executed on
January 24, 2005, i.e. after final disposal of
2
SLP and there was no interim injunction at that
time.
31. It was, therefore, submitted that
respondent Nos. 2 and 3 had not created any
right in favour of third party during the
operation of interim order and there was no
question of taking proceedings under the
Contempt of Courts Act.
32. Regarding notice to petitioners, the
respondents stated that pursis, Ex. 88 was
filed in the trial Court wherein details had
been supplied in respect of 11 transfer deeds
which were to be executed. Thereafter, again
pursis, Ex. 106 was filed on September 01, 2005
in which all details were given. Thus, they
have not violated the order of this Court.
33. Finally, it was stated;
“Without prejudice to the
above, the respondents tender their
unconditional apology to this
Hon’ble Court.”
34. In affidavit-in-rejoinder, the
petitioners have stated that after examining
2
oral and documentary evidence, the competent
Court passed a decree in favour of plaintiffs
declaring shares of plaintiffs and defendants.
Meanwhile, however, the respondents disposed of
several properties. It was reiterated that
illegally and with mala fide intention, the
respondents created third party interest in
gross defiance of interim orders and by making
inconsistent and contradictory statements. A
false statement was made by respondents in sale
deeds and in agreements to sell that the title
of the respondents over the property was ‘clear
and marketable’. As to properties part ‘A; and
‘B’, it was stated that the contention was
wholly irrelevant inasmuch as the trial Court
decreed the suit by holding the plaintiffs as
joint owners of the property.
35. Further affidavit was thereafter filed
by respondent Nos. 2 and 3 on February 25, 2008
on the question of title deeds. It was stated
that in sale deeds, a statement was made that
“third party has no right, title, interest or
2
claim and the property (subject-matter of sale
deed) was not under attachment”. But it was
also stated that the suit was pending and the
sale-deeds were executed subject to final
decision in the suit. Thus, the respondents
had acted bona fide. They have not only
notified in the sale-deeds the pendency of
civil suit but also have gone a step further
and stated that the sale-deeds were being
executed subject to final decision in the
pending suit. It was, therefore, submitted
that the Contempt Petitions should be
dismissed.
36. From the facts stated above, it is
proved that there is breach of interim orders
passed by this Court. So far as the defence as
to properties falling in parts ‘A’ and ‘B’ is
concerned, in our opinion, it is clearly an
after thought and the plea has been put forward
without there being anything on record. Though
it was stated that initially, Madhuben,
Hemlataben, Rashmikaben and Ranjit Gulati were
2
given shops in part ‘B’ property, no such
agreements/deeds have been placed on record. It
was then stated that after interim relief was
vacated and request was made by them to allot
them shops in part ‘A’ property, no
evidence/material has been adduced by the
contemners. A stereo-type affidavits have been
filed sworn on one and the same day, July 29,
2006 after contempt notice was served upon the
respondents. Even the sale-deeds do not recite
part ‘A’ or ‘B’ of the property or the fact
that earlier the allottee was granted shop in
part ‘B’ property but after the disposal of the
Special Leave Petitions, request was made by
the purchaser to convert the allotment from
part ‘B’ property to part ‘A’ property. The
so-called defence, therefore, is apparently to
avoid consequences of contempt proceedings.
37. Moreover, the defence does not appear
to be probable. Normally, no reasonable and
prudent man/woman who purchases immovable
property with a ‘clear’ title would request the
2
owner of the property to allot him/her property
over which his title is not clear, which is the
subject-matter of litigation, for which a suit
is pending and the matter is sub-judice in a
Court of law.
38. Further, the pleas advanced by
respondent Nos. 2 and 3 are inconsistent,
conflicting and irreconcilable. On the one
hand, it was asserted that during the operation
of the interim order, dated April 26, 2004,
respondent Nos. 2 and 3 had not created third
party interest in the suit property and the
cheques said to have been accepted by them
during the pendency of proceedings ‘represented
the amount paid towards consideration of the
apartment booked prior to the issuance of the
interim orders,’ while on the other hand, it
was stated that initial booking was for shops
to be constructed on part ‘B’ property, but
subsequently, after dismissal of Special Leave
Petitions, at the request of purchasers,
3
allotment was converted from part ‘B’ property
to part ‘A’ property. If it were so, there was
no question of raising a plea that the
acceptance of cheques during the pendency of
the interim orders represented the amount of
consideration booked prior to the issuance of
interim orders. If initial booking and payment
was in relation to part ‘B’ property, it was
immaterial and altogether irrelevant whether it
was prior or subsequent to filing suit by the
plaintiffs or grant of interim orders either by
the High Court or by this Court.
39. We are, therefore, fully convinced
that during the pendency of the proceedings and
in spite of interim orders passed by this
Court, agreements have been entered into by the
contemners, cheques had been accepted and
consideration had been received at least in
part. So far as the first order passed by this
Court on April 26, 2004 is concerned, there was
total prohibition from creating any interest in
favour of third party either by sale, mortgage,
3
transfer, assignment, gift or ‘ in any other
manner whatsoever’. Hence, entering into an
agreement or acceptance of full or even part
consideration would be hit by the said order.
In our considered view, it would amount to
‘creation of interest’ prohibited by this
Court.
40. The matter did not end there. Special
Leave Petitions were filed in this Court by the
petitioners against an interim order not
granting injunction below Application, Ex.5.
Though the High Court granted such injunction,
but it was vacated at the time of dismissal of
Appeal from Order. But all the parties to the
suit were aware that the main matter (suit) was
pending and rights of contesting parties in the
suit-property were yet to be decided. In the
circumstances, ‘injunction’ or ‘no injunction’,
the title of the defendants was ‘under
challenge’. It was ‘cloudy’ and unless and
until the suit is decided, it cannot be said
3
that they had ‘clear and marketable title’.
Though the legal position is clear and beyond
controversy, we find that an express,
unambiguous and unequivocal statement is made
by the contemners in all sale deeds that their
title to the property is ‘clear and
marketable’. It was also stated that they were
independent owners, possessors and occupiers of
the property and there was no right, interest,
part share, claim of anybody else therein.
41. It was, no doubt, submitted by the
learned counsel for the contemners that it was
specifically and clearly stated that a suit was
pending in the Court of Civil Judge (Senior
Division), Vadodara and it was also clarified
that the documents were executed subject to the
final decision in the suit. It was further
submitted that if the owner of the property
does not state that he has title over the
property he seeks to transfer and that such
title is ‘clear and marketable’, no reasonable
and prudent man would come forward to purchase
3
such property. To this extent, the learned
counsel is right. That, however, does not mean
that in such case, a person whose title is
challenged and the proceedings are pending will
be permitted to say that his title is ‘clear
and marketable’ and there is no impediment on
the contemners from transferring the property
in favour of purchasers.
42. Finally, in any case, there is clear
breach and violation of the order of this
Court, i.e. order, dated January 10, 2005 so
far as ‘notice’ to the petitioners is
concerned. It is not disputed even by the
contemners that in some cases, notice as to
creation of third party interest had been given
after creation of such interest by filing
pursis in the Court.
43. The learned counsel for the contemners
half-heartedly submitted that this Court had
not ordered that ‘prior’ notice should be given
to the petitioners regarding creation of third
3
party rights and hence, there was no violation
of the direction of the Court.
44. We are unable to agree with the
submission. This Court has stated; “Any third
party right which is created shall be done
after notice to the petitioners.” In our view,
the direction has only one meaning and it is
that third party interest can only be created
after notice to the petitioners. Admittedly,
that was not done, at least, in few cases. It
is, therefore, clear that there is violation
and disobedience of the orders of the Court and
the contemners are responsible for such act.
45. From the overall considerations of the
matter in the light of series of events, we
hold that the respondents-contemners have
disregarded and violated the orders passed by
this Court on April 26, 2004 and January 10,
2005.
46. The next question is whether for
disobedience of the order passed by this Court,
3
the respondents/contemners are liable to
punishment? In this connection, we may refer to
some of the legal provisions. Article 129 of
the Constitution declares this Court (Supreme
Court) to be “a Court of Record having all the
powers of such a Court including the power to
punish for the contempt of itself”. Clause (c)
of Section 94 of the Code of Civil Procedure,
1908 enacts that in order to prevent the ends
of justice from being defeated, the Court may,
commit the person guilty of disobedience of an
order of interim injunction to civil prison and
direct his property be attached and sold. Rule
2A of Order XXXIX as inserted by the Code of
Civil Procedure (Amendment) Act, 1976 (Act 104
of 1976) reads thus:
2A. Consequence of disobedience or
breach of injunction— (1) In the case
of disobedience of any injunction
granted or other order made under rule
1 or rule 2 or breach of any of the
terms on which the injunction was
granted or the order made, the Court
granting the injunction or making the
order, or any Court to which the suit
or proceeding is transferred, may
3
order the property of the person
guilty of such disobedience or breach
to be attached, and may also order
such person to be detained in the
civil prison for a term not exceeding
three months, unless in the meantime
the Court directs his release.
(2) No attachment made under this rule
shall remain in force for more than
one year, at the end of which time, if
the disobedience or breach continues,
the property attached may be sold and
out of the proceeds, the Court may
award such compensation as it thinks
fit to the injured party and shall pay
the balance, if any, to the party
entitled thereto.
47. The provisions of the Contempt of
Courts Act, 1971 have also been invoked.
Section 2 of the Act is a definition clause.
Clause (a) enacts that contempt of court means
‘civil contempt or criminal contempt’. Clause
(b) defines ‘civil contempt’ thus;
(b) ‘civil contempt’ means wilful
disobedience to any judgement, decree,
direction, order, writ or other
process of a court or wilful breach of
an undertaking given to a court.
3
48. Reading of the above clause makes it
clear that the following conditions must be
satisfied before a person can be held to have
committed a civil contempt;
(i) there must be a judgment, decree,
direction, order, writ or other
process of a Court (or an undertaking
given to a Court);
(ii) there must be disobedience to such
judgment, decree, direction, order,
writ or other process of a Court (or
breach of undertaking given to a
Court); and
(iii) such disobedience of judgment, decree,
direction, order, writ or other
process of a Court (or breach of
undertaking) must be wilful.
49. Section 12 provides punishment for
contempt of Court. The relevant part of the
provision reads thus;
S. 12 - Punishment for contempt of
court— (1) Save as otherwise expressly
provided in this Act or in any other
law, a contempt of court may be
punished with simple imprisonment for a
term which may extend to six months, or
3
with fine which may extend to two
thousand rupees, or with both:
Provided that the accused may be
discharged or the punishment awarded
may be remitted on apology being made
to the satisfaction of the court.
Explanation.--An apology shall not be
rejected merely on the ground that it
is qualified or conditional if the
accused makes it bona fide.
(2) Notwithstanding anything contained
in any law for the time being in force,
no court shall impose a sentence in
excess of that specified in sub-section
(1) for any Contempt either in respect
of itself or of a court subordinate to
it.
(3) Notwithstanding anything contained
in this section, where a person is
found guilty of a civil contempt, the
court , if it considers that a fine
will not meet the ends of justice and
that a sentence of imprisonment is
necessary shall, instead of
sentencing him to simple imprisonment,
direct that he be detained in a civil
prison for such period not exceeding
six months as it may think fit.
. . . . . . . . .
50. In Ashok Paper Kamgar Union v. Dharam
Godha & Ors., (2003) 11 SCC 1, this Court had
3
an occasion to consider the concept of ‘wilful
disobedience’ of an order of the Court. It was
stated that ‘wilful’ means an act or omission
which is done voluntarily and with the specific
intent to do something the law forbids or with
the specific intent to fail to do something the
law requires to be done, that is to say, with
bad purpose either to disobey or to disregard
the law. According to the Court, it signifies
the act done with evil intent or with a bad
motive for the purpose. It was observed that
the act or omission has to be judged having
regard to the facts and circumstances of each
case.
51. In Kapildeo Prasad Sah & Ors. v. State
of Bihar & Ors., (1999) 7 SCC 569, it was held
that for holding a person to have committed
contempt, it must be shown that there was
wilful disobedience of the judgment or order of
the Court. But it was indicated that even
negligence and carelessness may amount to
4
contempt. It was further observed that issuance
of notice for contempt of Court and power to
punish are having far reaching consequences,
and as such, they should be resorted to only
when a clear case of wilful disobedience of the
court's order is made out. A petitioner who
complains breach of Court's order must allege
deliberate or contumacious disobedience of the
Court's order and if such allegation is proved,
contempt can be said to have been made out, not
otherwise. The Court noted that power to punish
for contempt is intended to maintain effective
legal system. It is exercised to prevent
perversion of the course of justice.
52. In the celebrated decision of Attorney
General v. Times Newspaper Ltd.; 1974 AC 273 :
(1973) 3 All ER 54 : (1973) 3 WLR 298; Lord
Diplock stated:
“There is an element of
public policy in punishing civil
contempt, since the administration
4
of justice would be undermined if
the order of any court of law
could be disregarded with
impunity.”
53. In Anil Ratan Sarkar & Ors. v. Hirak
Ghosh & Ors., (2002) 4 SCC 21, this Court held
that the Contempt of Courts Act has been
introduced in the statute-book for securing
confidence of people in the administration of
justice. If an order passed by a competent
Court is clear and unambiguous and not capable
of more than one interpretation, disobedience
or breach of such order would amount to
contempt of Court. There can be no laxity in
such a situation because otherwise the Court
orders would become the subject of mockery.
Misunderstanding or own understanding of the
Court’s order would not be a permissible
defence. It was observed that power to punish a
person for contempt is undoubtedly a powerful
weapon in the hands of Judiciary but that by
itself operates as a string of caution and
4
cannot be used unless the Court is satisfied
beyond doubt that the person has deliberately
and intentionally violated the order of the
Court. The power under the Act must be
exercised with utmost care and caution and
sparingly in the larger interest of the society
and for proper administration of justice
delivery system. Mere disobedience of an order
is not enough to hold a person guilty of civil
contempt. The element of willingness is an
indispensable requirement to bring home the
charge within the meaning of the Act.
54. In Commissioner, Karnataka Housing
Board v. C. Muddaiah, (2007) 7 SCC 689, one of
us (C.K. Thakker, J.) observed that once a
direction is issued by a competent Court, it
has to be obeyed and implemented without any
reservation. If an order passed by a Court of
Law is not complied with or is ignored, there
will be an end of Rule of Law. If a party
against whom such order is made has grievance,
4
the only remedy available to him is to
challenge the order by taking appropriate
proceedings known to law. But it cannot be made
ineffective by not complying with the
directions on a specious plea that no such
directions could have been issued by the Court.
Upholding of such argument would seriously
affect and impair administration of justice.
55. In All Bengal Excise Licensees
Association v. Raghabendra Singh & Ors., (2007)
11 SCC 374, this Court considered several cases
and observed that wilful and deliberate act of
violation of interim order passed by a
competent Court would amount to contempt of
Court.
56. A reference in this connection may
also be made to a decision of this Court in
Tayabbhai M. Bagasarawala v. Hind Rubber
Industries (P) Ltd., (1997) 3 SCC 443. In that
case, the plaintiff-landlord filed a suit
4
against the defendant-tenant in the City Civil
Court for permanent injunction restraining the
defendant from carrying on construction in the
suit premises. Ad interim injunction was
granted by the Court. Defendant’s application
for vacating injunction was dismissed. The
defendant, however, committed breach of
injunction. The plaintiff, hence, filed an
application under Order XXXIX, Rule 2-A of the
Code. The defendant came forward and raised an
objection as to jurisdiction of the Court and
power to grant injunction. The High Court,
ultimately, upheld the objection and ruled that
City Civil Court had no jurisdiction to
entertain the suit. It was, therefore, argued
by the defendant that he cannot be punished for
disobedience of an order passed by a Court
which had no jurisdiction to entertain a suit
or to grant injunction. The High Court upheld
the contention. The plaintiff approached this
Court.
4
57. This Court observed that until the
question of jurisdiction had been decided, the
City Civil Court possessed power to make
interim orders. The Court could also enforce
them. A subsequent decision that the Court had
no jurisdiction to entertain the suit did not
render interim orders passed earlier non est or
without jurisdiction. A party committing breach
of such orders could not escape the
consequences of such disobedience and violation
thereof. Accordingly, the Court held the
defendant guilty for intentionally and
deliberately violating interim order and
convicted him under Rule 2-A of Order XXXIX of
the Code and sentenced him to one month’s
imprisonment.
58. Speaking for the Court, Jeevan Reddy,
J. stated;
“Can it be said that orders passed
by the Civil Court and the High Court
during this period of six years were
4
all non est and that it is open to the
defendants to flout them merrily,
without fear of any consequence. The
question is whether the said decision
of the High Court means that no person
can be punished for flouting or
disobeying the interim/ interlocutory
orders while they were in force, i.e.,
for violations and disobedience
committed prior to the decision of the
High Court on the question of
jurisdiction. Holding that by virtue
of the said decision of the High Court
(on the question of jurisdiction), no
one can be punished thereafter for
disobedience or violation of the
interim orders committed prior to the
said decision of the High Court, would
indeed be subversive of the Rule of
Law and would seriously erode the
dignity and the authority of the
courts . (emphasis supplied)
59. 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
4
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.
60. Now, in the instant case, both the
orders passed by this Court on April 26, 2004
and January 10, 2005, were explicitly clear.
The first order totally prohibited/restrained
the respondents/contemners from creating any
interest whatsoever in the suit property. As
held by us, in spite of the said order,
interest had been created by the contemners in
the suit property. But even otherwise there is
intentional disobedience and wilful breach of
the subsequent order dated January 10, 2005
inasmuch as transactions had been entered into
without issuing notice to the petitioners. We
have already held that they could not have been
entered into by the respondents before issuance
of notice to the petitioners. The respondents
were clearly aware of the order. In fact, the
4
action was sought to be defended and justified
on the ground that the Court had not directed
‘prior’ notice, and as such, non-issuance of
notice before entering into sale transactions
would not amount to disobedience of the order
of the Court. We are unable to uphold the
contention. In the circumstances it must be
held that the disobedience of the order by the
contemners was wilful, intentional and
deliberate.
61. The question then is whether the case
calls for imposition 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
4
ground that it is qualified or conditional
[Explanation to Section 12(1)].
62. 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. Wilful 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.
63. In Hiren Bose, Re, AIR 1969 Cal 1 : 72
Cal WN 82, the High Court of Calcutta stated;
”It is also not a matter of course
that a Judge can be expected to accept
any apology. Apology cannot be a
5
weapon of defence forged always to
purge the guilty. It is intended to be
evidence of real contrition, the manly
consciousness of a wrong done, of an
injury inflicted and the earnest
desire to make such reparation as lies
in the wrong-doer's power. Only then
is it of any avail in a Court of
justice But before it can have that
effect, it should be tendered at the
earliest possible stage, not the
latest. Even if wisdom dawns only at a
later stage, the apology should be
tendered unreservedly and
unconditionally, before the Judge has
indicated the trend of his mind.
Unless that is done, not only is the
tendered apology robbed of all grace
but it ceases to be an apology It
ceases to be the full, frank and manly
confession of a wrong done, which it
is intended to be”.
64. It is well-settled that an apology is
neither a weapon of 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. High
Court of Punjab & Haryana, (1991) 3 SCR 312].
65. In T.N. Godavarman Thirumulpad through
5
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 slipper 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”.
66. The Court, therefore, rejected the
prayer and stated;
“Apology is an act of contrition.
Unless apology is offered at the
5
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”.
67. Similar view was taken in other cases
also by this Court.
68. 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.
5
69. Considering the facts and
circumstances in their entirety, in our
opinion, ends of justice would be served if we
hold the respondents/contemners guilty under
Section 12 of the Contempt of Courts Act, 1971,
read with Section 94(c) and Rule 2-A of Order
XXXIX of the Code of Civil Procedure, 1908 as
amended by the Code of Civil Procedure
(Amendment) Act, 1976 and Article 129 of the
Constitution and order the respondents-
contemners to undergo simple imprisonment for a
term of two weeks i.e. fourteen days.
70. Ordered accordingly. The Contempt
Petitions are disposed of.
……………………………………………………………J.
(C.K. THAKKER)
NEW DELHI, ……………………………………………………………J.
JULY 21, 2008. (AFTAB ALAM)