Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Cont. Case (Crl.) No. 0009/2009
% Date of Decision: 8.12.2010
Abdul Mueed & Ors.
…. Petitioners
Through Mr. Ravinder Sethi, Sr. Advocate with
Mr. Simran Mehta and Ms. Shalini
Kapoor, Advocates
Versus
Hammad Ahmed …. Respondents
Through Mr. J.P. Sengh, Sr. Advocate with Mr.
Bobby Lao, Advocate
CORAM:
HON’BLE MR. JUSTICE ANIL KUMAR
HON’BLE MR.JUSTICE S.L.BHAYANA
1. Whether reporters of Local papers may
be allowed to see the judgment?
YES
2. To be referred to the reporter or not? NO
3. Whether the judgment should be
reported in the Digest?
NO
ANIL KUMAR, J.
*
1. This is an application by the petitioners under Section 2(c) 11, 12
& 15 of the Contempt of Courts Act, 1971 r/w Article 215 of the
Constitution of India against Hammad Ahmed, the respondent for
initiating criminal contempt proceedings on account of allegedly filing of
false affidavit in an appeal being FAO No. 262 of 2005. The said appeal
was filed by an ex-employee of petitioner No.4 against dismissal of his
petition under section 92 of the Code of Civil Procedure.
Cont. Case (Crl.) No. 0009/2009 Page 1 of 27
2. The petitioners have contended that petitioner No.1 is the Chief
Muttawalli of Hamdard Dawakhana (Wakf) Laboratories whereas the
petitioners No. 2 & 3 are other Muttawallis. The respondent Hammad
Ahmed is also stated to be a Muttawalli.
3. The grievances of the petitioners are that an ex-employee of
Hamdard Dawakhana (Waqf) Laboratories had filed a petition under
Section 92 of the Civil Procedure Code to institute a suit against
Hamdard Dawakhana (Waqf) Laboratories and against its Chief
Muttawallis and other Muttawallis.
4. In the petition under Section 92 of the Civil Procedure Code, the
respondent, Shri Hammad Ahmed had filed replies before the District
Judge. The respondent filed an affidavit deposing and contending that
the petitioners had disposed of the properties of Waqf without his
knowledge and consent, though he is one of the Muttawali.
5. The suit filed by the ex-employee of Hamdard Dawakhana (Waqf)
Laboratories under Section 92 of the Civil Procedure Code was,
however, dismissed in view of Section 85 of the Waqf Act, 1995
contemplating that the jurisdiction of the Civil Court is barred under
the provision of Waqf Act, 1995.
Cont. Case (Crl.) No. 0009/2009 Page 2 of 27
6. In the said petition filed under Section 92, the petitioners had
filed an application under Section 340 of Crl. Procedure Code for
allegedly filing a false affidavit. However, the application of the
petitioners for taking action for filing a false affidavit by the respondent
was dismissed. The trial Judge had held that it is well settled that the
proceedings under section 340 of Cr.P.C should not be permitted to be
utilized by a party to serve his own ends or to satisfy his own urge for
revenge and it seems that was the purpose of the petitioner. The
observations while dismissing the application under Section 340 of Cr.
P.C by the trial Judge are as under:
"24. Perusal of the record further shows that there are
several disputes between the parties and various litigation
are pending between the parties and in the petition under
section 92 of the CPC, all the applicants as well as the
respondents were the defendants, but the petitioners in the
petition under section 92 of the CPC have not afford any
similar application against any of these parties.
Furthermore, Further more as discussed in various
judgments, as above, it is well settled law that the
proceedings under section 340 Cr. P.C should not be
permitted to be utilized by a party to serve his own ends
court to satisfy his own urge for revenge and it seems that
the same has been done by the applicants, in the present
case. From the material on record, it appears that the
object of filing of the present application was not so much
vindicate purity of the administration of justice, but to see
that the respondents, who have been contesting various
litigations with the applicants, herein, before various
courts, be punished under the provisions of penal law.
From the record, it is clear that the applicant have filed the
present application with the motive, only to gratify his
feeling to revenge and to use the present proceeding as an
instrument of oppression and harassment to the
respondents. "
Cont. Case (Crl.) No. 0009/2009 Page 3 of 27
The trial court while dismissing the application did not determine
whether the affidavit filed by the respondent was false or not. It was,
however observed prima facie that the affidavit was not false. Against
the dismissal of their application under Section 340 of the Crl.
Procedure Code, an appeal has been filed by the petitioners, which is
also pending adjudication.
7. The learned counsel has further elaborated the facts and has
contended that against the order of dismissal of the suit filed by the ex-
employee under Section 92 of the Code of Criminal Procedure, an
appeal being FAO No. 262-264 of 2005 was filed in which another
affidavit dated November, 2005 was filed deposing similar facts that
though the respondent is a senior Muttawalli he was not informed of
the details of the sale of properties comprising of four flats at Rishi
Apartment, Farm House at Pul Pehaladpur, One Garage at Lal Kuan
and property bearing No. 3636 Kara Dina Bg. Khan, Lal Kuan, Delhi.
8. The learned senior counsel for the petitioner, Mr. Sethi has
contended that though correctness of the affidavit dated November,
2005 of Sh. Hammad Ahmed, son of late Sh. Hakim Haji Abdul Hameed
filed in FAO No. 262/05 titled Nauman Khan & Anr. Vs. Sh. Abdul
Mueed & Ors., has not been adjudicated and decided, deposing that
though he is a Senior Muttawalli he was neither informed of the details
of the sale of flats No. 601, 602, 603, 604, Rishi Apartment,
Cont. Case (Crl.) No. 0009/2009 Page 4 of 27
Alakhnanda, Tara Apartment, New Delhi-19 and property at 3636, Kara
Dina Bg Khan, Lal Kuan, Delhi and Farm House at Pul Pehaladpur,
New Delhi nor did Abdul Mueed permit anyone to disclose the financial
affairs of the defendant No.1 to the respondent.
9. To refute the allegation of the respondent and contend that the
plea raised by the respondent in the affidavit is false, the petitioners
have relied on the entries of the attendance register of the meeting of
st
Majlis-e-Aiwaan of Hamdard National Foundation (India) held on 21
December, 2001 which bears respondent‟s signatures at item No. 2 and
approval of Majlis-e-Aiwaan, Governing Body, Proposal regarding sale of
four Rishi Apartment Flats, Alakhnand, New Delhi which was approved
on the same date and similarly, the meeting of Majlis-e-Aiwaan of
th
Hamdard National Foundation (India) held on 17 October, 2002 which
bears the signature on the attendance register and shows the
respondent's presence. Meeting on that date had approved the sale of
15 Bighas Agricultural land on Mehrauli-Badarpur Road. Though the
attendance register is signed by the respondent which is also admitted
by him, but the minutes of the meeting stipulating as to what
transpired and what was decided does not bear the signatures of the
respondent.
10. It is contended by the petitioners that in view of the documents
filed by the respondent, the affidavit filed in FAO No. 262-264 on
Cont. Case (Crl.) No. 0009/2009 Page 5 of 27
November, 2005 is false and therefore criminal contempt has been
committed by the respondent. It is further pleaded by the petitioners
that permission was granted under Section 15 of the Contempt of
Courts Act, 1971 to file the contempt petition and in the circumstances
this Court has to adjudicate that the affidavit of Sh. Hammad Ahmed is
false and take action by invoking criminal contempt jurisdiction as the
false affidavit filed by the respondent has prejudiced or interfered with
the due course of judicial proceedings and has obstructed the
administration of justice as contemplated under Section 2(c) of
Contempt of Courts Act, 1971 defining criminal contempt.
11. The learned counsel has contended that under Section 17(5) of
the said act since any person charged with the contempt under Section
15 can file an affidavit in support of his defense and the Court has to
determine the matter of charge either on the affidavits filed or after
taking such further evidence as may be necessary, it is imperative that
in order to determine the falsity of the affidavit of November, 2005 of
Hammad Ahmed, respondent, the Court can take evidence and
determine that the false affidavit has been filed and after determining
that the affidavit filed in the appeal was filed, take action for committing
contempt of Court.
12. Relying on Welset Engineers and Anr. vs. Vikas Auto Industries &
ors, 2006 (32) PTC 190 (SC) it is contended that for determining the
Cont. Case (Crl.) No. 0009/2009 Page 6 of 27
matter of the charge in a contempt petition, the Court may rely either
on the affidavit filed or may decide after taking such evidence as deems
fit and merely because disputed questions of fact are involved, it would
not preclude the Court from exercising its jurisdiction under the
Contempt of Courts Act, 1971. The learned senior counsel further
contended that making false statements on oath may deliberately
constitute criminal contempt and relied on Murray and Company vs.
Ashok Kr. Newatia & Anr. (200) 2 SCC 367. Mr. Sethi has also relied on
Pallav Sheth vs. Custodian & Ors., (2001) 7 SCC 549 to contend that
the decision of Om Prakash Jaiswal vs. D.K.Mittal, (2000) 3 SCC 171
had been over ruled by the Supreme Court in the case of Pallav Sheth
(supra). Mr. Sethi, learned senior counsel has also relied on Dhananjay
Sharma vs. State of Haryana, (1995) 3 SCC 757 to contend that filing
false affidavit amounts to conduct which has the tendency to interfere
with the administration of justice or the due course of judicial
proceedings and amounts to commission of criminal contempt.
13. The court had issued notice to the respondent pursuant to which
a reply has been filed on behalf of respondent contending inter-alia that
the respondent has not filed any false affidavit and the contempt
petition is a device to prevail upon the respondent to dissuade him to
seek remedies against the petitioners. It is asserted that the contempt
petition filed by the petitioners is barred by law of limitation and is not
maintainable. It has also been pleaded that the petitioners remedy
Cont. Case (Crl.) No. 0009/2009 Page 7 of 27
under section 340 of Criminal Procedure Code is still pending and in
the circumstances the petitioners cannot invoke the Criminal contempt
Jurisdiction of the Court. According to respondent the petitioners have
filed four contempt petitions and two applications under section 340 of
Criminal Procedure Code in different courts against the answering
respondent on similar allegations with a view to harass and intimidate
the respondent.
14. The respondent stated that he had not signed the minute books
as the minutes were not circulated nor his objections against disposing
the properties were recorded. According to him he had only signed the
attendance sheet. It is asserted that the minute book is separate from
the attendance register. The respondent also contended that petitioner
no.1 has illegally appointed Petitioner No. 3 who is his son as fifth
Mutawalli of respondent no.4 in contravention of the wakf deed and he
is using the funds of respondent no.4 for his personal use instead of
Charitable public purpose which is the major object and purpose for
which respondent no.4 wakf was created. The respondent also
st
contended that the minutes of meeting dated 21 December 2001 does
not bear his signatures nor were the minutes circulated and what is
stated in the minutes was not decided in the two meetings.
15. The respondent also disclosed that the petitioners had filed a
contempt petition no. 1479-1482 of 2005 which was withdrawn by
Cont. Case (Crl.) No. 0009/2009 Page 8 of 27
order dated 20.12.2005. Thereafter another contempt petition was filed
being Cont. Case no. 64-67 of 2006 titled as Abdul Mueed & Ors. vs.
Hammad Ahmed & Anr. which was vehemently pursued but when the
petitioners realized that the court may dismiss the petition, it was
withdrawn by the petitioners with liberty to file an appropriate legal
proceeding by order dated 17.02.2009 and present contempt
proceedings has been filed thereafter.
16. The learned counsel for the respondent has also relied on AIR
1975 Allahabad 366, Gulab Singh & Anr. vs. The Principal, Sri Ramji
Das; 70 (1997) DLT 60, Indian Music Industry (IMI) vs. Charanajit
Gupta @ Chandi & Ors.; 154 (2008) DLT 647, R.P. Malik vs. Anil
Sharma & Ors. and (2000) 3 SCC 171, Om Pakash Jaiswal vs. D.K.
Mittal and Anr. to contend that the contempt petition is barred by
limitation and it cannot be held that the respondent has committed a
criminal contempt.
17. This court had directed the petitioners to produce the relevant
original attendance register and minute books. The original record
directed by the court was produced by the petitioners which was
perused by this court. The alleged false affidavit was filed by the
st
respondent in November, 2005 regarding the minutes of 21 December,
th
2001 and 17 October, 2002. If the petitioners knew that the affidavit
filed by the respondent in November, 2005 was false whether the
Cont. Case (Crl.) No. 0009/2009 Page 9 of 27
st
contempt petition filed on 31 March, 2009 would be within time or not
is the first question to be determined.
18. To determine whether the Criminal Contempt petition is within
time or not the following dates and events would be relevant:
November, 2005: Alleged false affidavit filed by the respondent in
FAO No.262-264/2005 contending that though
he is senior Mutawalli, he is neither aware nor
is informed of the details of the property
disposed of as Abdul Mueed does not permit
any one to disclose the financial affairs.
19.11.2005: Petitioners filed contempt case (C) No. 1479-
1482 of 2005 in FAO No. 262/2005. The said
contempt petition was filed with respect to the
affidavits contending that the respondent is not
aware or informed about the details of
properties sold filed in:
(i) Suit No. CS (OS) No. 326 of 2005 titled
Hammad Ahmed vs. Asad Mueed and
others.
(ii) C.S. (OS) No. 1149 of 2005 titled
Hammad Ahmed and another Versus
Abdul Mueed and others.
(iii) FAO No. 262/2005 titled Mohd.
Nauman Khan and others vs. Abdul
Mueed and others.
20.12.2005: The petitioners alleged that they were advised
that one contempt petition in respect of false
affidavits filed in different cases would not be
maintainable and as such the petitioners
withdrew the said contempt case No.1479-1482
of 2005 in FAO No. 262 of 2005 with liberty to
file a fresh petition.
Cont. Case (Crl.) No. 0009/2009 Page 10 of 27
9.01.2006: The Petitioners filed another petition for
Criminal Contempt being CCP No. 64-67 of
2006 in FAO No. 262 of 2005 against the
respondent for contumaciously and deliberately
filing a false affidavit in Court. Though the
petitioners had sought initiation of Criminal
Contempt, however, permission as
contemplated under law was neither applied
nor taken before filing the said contempt
petition.
2.11.2006: The Respondent filed a reply taking the plea
that the contempt petition will not be
maintainable. The contemnor still persisted
with the contempt petition and rather
contended that in reply the respondent has
filed another false affidavit.
17.2.2009: The petitioners withdraw the said contempt
petition with the liberty to take appropriate
legal proceedings.
27.2.2009: The applicants applied vide their letter to the
standing counsel, State of NCT of Delhi, Delhi
High Court, New Delhi for approval to file the
Criminal complaint.
12.3.2009: The standing counsel granted approval to file
the Criminal contempt petition.
20.3.2009: The approval was received by the petitioners.
31.3.2009: Petition filed for Criminal Contempt by the
petitioners under section 2 (c) read with section
11 and 12 of the Contempt of Courts Act, 1971
with an application under Section 5 read with
Section 14 of the Limitation Act and 151 of
CPC
22.12.2009: The respondents filed their reply to the
contempt petition stating that the petitioners
have filed 4 Contempt Petitions and 2
Applications u/s 340 Cr. P.C. in different
courts against the answering respondent and
his son on similar allegations with a view to
harass and intimidate the respondent and
Cont. Case (Crl.) No. 0009/2009 Page 11 of 27
contempt petition is barred under section 20 of
the Contempt of Courts Act, 1970.
19. The Limitation for initiating contempt by the Court either on its
own motion or otherwise is one year from the date on which the
contempt is alleged to have been committed. This is not disputed that
for the present petition, the alleged contempt was committed when the
affidavit was filed by the respondent in FAO 262-264 of 2005. According
to section 20 of the Contempt of Courts Act, 1970, the contempt could
be initiated against the respondent till November, 2006. Admittedly the
present petition is not filed by the petitioners by November, 2006. The
next question is whether the petitioners are entitled for exclusion of
period spent on filing other contempt petitions under section 14 of the
Limitation Act, 1963 or any other provision. The petitioners have also
sought condonation of delay in filing the petition under section 5 of the
Limitation Act.
20. The petitioners have invoked section 5 & section 14 of the
Limitation Act, 1963. Section 5 for condonation of delay and section 14
to contend that the time taken in pursuing other petitions for contempt
be excluded. It has been held in; T.M.A. Abdul Hamed
vs.S.Radhakrishnan, 1989 LW (Crl) 237 that delay in initiating
contempt proceedings cannot be condoned. In Krishnalal Chhoteylal,
(1987) 13 ALR 44, it was held that the provisions of the Limitation Act,
Cont. Case (Crl.) No. 0009/2009 Page 12 of 27
1963 do not apply to the Contempt of Courts Act, 1971. No intervening
event or order stops the running of time specified under section 20 of
the Contempt of Courts Act, 1971 as was held in Golcha Advertising
Agency v. The State of Maharashtra, (1990) 2 Bom CR 262 (Bom). In
V.M.Kanade vs Madhao Gadkari, (1990) 1 Mah LR 544 (Bom), it was
held initiation of any proceedings for contempt is barred after the expiry
of a period of one year from the date on which the contempt is alleged to
have been committed.
21. The learned counsel for the respondent has relied on AIR 1975
Allahabad 366, Gulab Singh & Anr. vs. The Principal, Sri Ramji Das
holding that no provision stops running of the time of limitation of one
year under section 20 of the Contempt of Courts Act, 1971. It was
categorically held that
“ there is no provision under the Contempt of Courts act
which in any manner stops the running of time of one year
contemplated by Section 20 of the Act…. the time, within
which the proceedings for contempt are to be initiated, is
prescribed by the Contempt of Courts Act and not by the
Limitation Act. ”
In para 8 of the said judgment at page 367 it was held as under:
“8. Sri Bhattacharya, learned counsel for the petition,
contended that the period during which the writ petition
no. 1015 of the 1973 was pending should not be counted in
computing the period of one year under section 20 of the
Contempt of Courts Act. This is a hollow argument without
any thoughtful content in it. There is no provision under
the Contempt of Courts Act which in any manner stops the
Cont. Case (Crl.) No. 0009/2009 Page 13 of 27
running of time of one year contemplated by Section 20 of
the Act. Sri Bhattacharya then made a more hollow
argument to the effect that the Indian Limitation Act
applies. We fail to understand what benefit can Sri
Bhattacharya derive from the provisions of the Indian
Limitation Act when the time, within which the proceedings
for contempt are to be initiated, is prescribed by the
Contempt of Courts Act and not by the Limitation Act.”
22. The learned counsel for the respondent has also relied on (2000)
3 SCC 171, Om Prakash Jaiswal vs. D.K.Mittal & Ors. to contend that
Section 5 of the Limitation Act is not applicable under Section 20 of the
Contempt of Courts Act, 1971. The counsel for the respondent has also
relied on Indian Music Industry (IMI) v. Charanajit Gupta @ Chandi &
Ors: 70(1997) Delhi Law Times 60 to contend that Section 20 of the Act
talks of “initiation” of proceedings by a court. It is axiomatic that
“initiation” of contempt proceedings would be only when the Court has
applied its mind and passed some order. “Institution” of a petition for
proceedings under the Act cannot be equated with “initiation” of
proceedings by court. The two are distinct stages. The first is the
institution, which is just filing of the petition in the court and the
second is its consideration and initiation of action thereon by the Court.
Thus, if an application for taking action under the Act is filed within a
period of one year from the date of the alleged commission of contempt,
but the Court has passed no order thereon before the expiry of one year
from the said date, such application automatically fails because the
Court could not apply its mind to complaint within a period of one year.
Cont. Case (Crl.) No. 0009/2009 Page 14 of 27
23. The learned counsel for the respondent has also relied on R.P.
Malik vs. Anil Sharma and Ors., 154 (2008) DLT 647 holding that
Section 5 of the Limitation Act, 1963 does not deal with the
condonation of period of limitation prescribed under the Contempt of
Courts Act, 1971 and therefore, the delay in initiating proceedings
under Section 20 of the Contempt of Courts Act, 1971 cannot be
condoned under the provisions of the Limitation Act.
24. The learned counsel for the petitioner has relied on Pallav Sheth
vs Custodian and Ors., (2001) 7 SCC 549 to contend that the provisions
of Limitation Act, 1963 would apply to Contempt of Courts Act, 1971
and considering that the petitioners had been filing contempt petitions
which were allowed to be withdrawn with liberty to file appropriate
proceedings, the present petition is within time.
25. The Allahabad High Court in Islamuddin vs. Sri Umesh
Chandrara Tiwari and Anr. 2009(4) AWC 3680 had dealt with the
question of power of the Court to condone and waive the delay in
initiation of Contempt Proceedings under section 12 of the Contempt of
Courts Act, 1971. The following issues were crystallized by the Court
and answered. The issues considered by the division bench of the
Allahabad High Court were as follows:
Cont. Case (Crl.) No. 0009/2009 Page 15 of 27
(i) Whether the decision in Pallav Sheth case :
2001CriLJ4175 , can be construed so as to apply all the
principles enshrined in the provisions of the Indian
Limitation Act (except Section 17 thereof) and as to whether
the same can be made applicable to proceedings to be
initiated under Section 12 of the Contempt of Courts Act,
1971.
(ii). Whether the High Court in exercise of its powers for
initiating contempt of its Court or the contempt of its
subordinate court or Tribunal, as the case may be, has the
power to condone and waive the delay in initiation of
contempt proceedings under Section 12 of the Courts Act.
In paras 75 and 76 of the said judgment of Islamuddin (supra)
the Allahabad High Court had held as under:
“75. Thus, the judgment in Pallav Sheth (supra), in our
view, cannot be said to be an authority on the question as
to whether the provisions of Section 5 of Act 1963 would
have application where the contempt proceedings are
initiated after expiry of the period of one year from the date
of alleged contempt that is Section 20 of Act 1971. The
above judgment is an authority for the proposition that
contempt proceedings would be deemed to have been
initiated by the Court when (1) an application is filed before
the Court by an individual for bringing to its notice the
disobedience or defiance of its order and requesting for
punishing the contemnor for committing contempt of the
Court; (2) in a matter of criminal contempt when an
application is moved before the Advocate General or when
the Court permits to move before it directly; (3) in the
matter of contempt of subordinate court when reference is
made by the subordinate court; and (4) in the matter of suo
motu action, when the notice is issued by the Court. The
Apex Court said that if the above actions are taken within
one year from the date, contempt is alleged to have been
committed, the application would be deemed to be within
the time prescribed under Section 20 of Act, 1971. It also
says where the defiance or disobedience could not come to
Cont. Case (Crl.) No. 0009/2009 Page 16 of 27
the knowledge of the applicant or the Court due to fraud
played by the contemnor, the date of knowledge shall be
treated to be the date when contempt is alleged to have
been committed.
76. We, therefore, answer both the questions referred by
the Hon'ble Single Judge in negative and hold that for the
purpose of Section 20 of Act 1971, the Act 1963 and its
provisions (except-Section 17) have no application
whatsoever. The law laid down by the Apex Court in Pallav
Sheth (supra) does not make Section 5 of Act 1963
applicable and would not confer power upon the Court to
condone or waive delay where proceedings of contempt are
sought to be initiated under Act 1971 after one year from
the date when the contempt is alleged to have been
committed.”
26. A Division Bench of the Orissa High Court in Sri. Jayadev Swin v.
Vatsal Raghu and another, 2005 (1), OLR 699, rather relying on Badra
Kanta Mishra v. Gatika Rusha Mishra AIR 1997 4 SC 2255; Pallav Seth
(Supra), and Om Prakash Jaiswal (Supra), had held that even the
jurisdiction of the High Court under Article 215 of the Constitution is
restricted by Section 20 of the Contempt of Courts Act, 1971 and the
Court cannot punish a person for contempt beyond the period of
limitation i.e. after one year from the date of cause of action and Section
5 of the Limitation Act has no manner of application to proceeding
under the Contempt of Courts Act, 1971. On similar analogy, Section
14 of the Limitation Act, 1963 will not be applicable and the petitioners
shall not be entitled for exclusion of time in proceedings undertaken
allegedly bona fide in the Court which did not have jurisdiction.
Cont. Case (Crl.) No. 0009/2009 Page 17 of 27
27. Even on the facts, it is difficult to infer that the petitioners
continued the proceedings bona fide being CCP Nos.64-67 of 2006,
th
which was filed on 9 January, 2006 pursuant to withdrawal of another
contempt petition being No.1479-1482 of 2005 which was withdrawn on
th
20 December, 2005. The criminal contempt petition being No.64-67 of
2006 was filed without obtaining the approval of the Standing Counsel.
Though, the petitioners deemed to have known that the criminal
contempt petition could not be filed without the approval of Standing
th th
Counsel yet from 9 January, 2006 till 12 March, 2009 no steps were
taken for obtaining the permission of the Standing Counsel for initiating
the Criminal contempt. Even in the petition and the application filed by
the petitioners, no reasons have been given for not applying for
permission from the Standing Counsel. Though, the petitioners were
th
permitted to withdraw the CCP Nos.64-67 of 2006 on 17 February,
2009 with liberty to take appropriate legal proceedings, however, in the
facts and circumstances, it is difficult to infer that the petitioners were
pursuing the said petition bona fide so as to seek exclusion of the time
th th
from 9 January, 2006 up till 17 February, 2009. This is without
prejudice the findings of this Court that if Section 5 of the Limitation
Act, 1963 is not applicable to the Contempt of Courts Act, 1971, a
fortiori, Section 14 of the Limitation Act will also not be applicable.
Cont. Case (Crl.) No. 0009/2009 Page 18 of 27
28. For the foregoing reasons, the inevitable conclusion in the facts
and circumstances is that the above noted Criminal Contempt petition
is barred by time, as the alleged contempt was committed in November,
2005 and the petitioner had come to know about the alleged contempt
in November, 2009. The petitioners had applied for consent of the
th
Standing Counsel of State of NCT of Delhi on 27 February, 2009 and
th
the approval was granted on 12 March, 2009, which was allegedly
th
received by the petitioners on 20 March, 2009 where after, the petition
for contempt of Court along with an application under Sections 5 & 14
st
of the Limitation Act was filed on 31 March, 2009. The inevitable
inference in the facts and circumstances is that taking it from any
angle, the above noted Criminal Contempt Petition is barred by time.
29. Though, this court has held that the petition is barred by time,
however, the merits of the case are also considered in the facts and
circumstances. According to the petitioners, the affidavit filed in
November, 2005 by the respondent, Sh. Hammad Ahmad, deposing that
being a Senior Mutwalli, he was not aware, nor informed of the details
of the properties of the Waqf being sold, nor had he consented to the
sale of the properties more so because the petitioners especially Sh.
Abdul Mueed had not permitted anyone to disclose the financial affairs
to the respondent. In order to establish that affidavit is false, the
Cont. Case (Crl.) No. 0009/2009 Page 19 of 27
reliance has been placed on the minutes of the meetings of Majlis-e-
st th
Aiwaan dated 21 December, 2001 and 17 October, 2002.
30. From the photocopies of the minutes of the meetings of Majlis-e-
st th
Aiwan dated 21 December, 2001 and 17 October, 2002, it was
contended that the minutes were signed by respondent No.2 as he was
present on those days. In the circumstances, this Court had directed
the petitioners to produce the original minutes. On perusal of the
registers which were produced by the petitioners, it became apparent
that the attendances of the Mutwallis and others who had attended the
meetings were on separate pages than on the pages where the minutes
were pasted. The attendance sheet in the register stipulated as to who
all had attended the meeting. The registers did not have the agenda for
those meetings and the minutes of the meetings were typed on a
separate page and cut and pasted on a separate page than the page on
which the respondents and another had signed indicating that the
meetings of Majlis-e-Aiwaan were attended by them. From the registers
which were produced before this Court, it could not be inferred as to
st th
what was the agenda of meetings held on 21 December, 2001 and 17
October, 2002. Nothing has been produced by the petitioners to show
that the minutes of the meeting were typed in presence of those who
had attended the meetings and had been pasted on a separate page in
the register nor any thing has been produced to show that the copies of
Cont. Case (Crl.) No. 0009/2009 Page 20 of 27
the minutes were sent by post to the respondent. During the course of
the arguments, though it was contended that the respondents had
known the minutes of the meetings, however, nothing could be
produced by the petitioners on the basis of which, it could be inferred
that the respondents would have known the minutes of the meetings.
31. The respondent has also categorically contended that the
properties of the Waqf were sold without the consent of the respondent
and that the petitioner Abdul Mueed has not permitted anyone to
disclose the financial affairs of the Waqf to the respondent. If the
consent of the respondents was required and if the allegation of the
petitioners is that the consent was taken then there should have been
some writings executed or got executed from the respondent conveying
his consent to the sale of properties of the Waqf. The case of the
petitioners is also not that the oral consent was given by the
respondent. Merely because the meeting of the Majlis-e-Aiwaan dated
st th
21 December, 2001 and 17 October, 2002 were attended by the
respondent, it cannot be inferred that he was informed about the
decision taken for sale of the properties and he had consented for the
same. In the circumstances, it cannot be held prima facie that the
respondent‟s affidavit filed in November, 2005 in FAO Nos.262-264 of
2005, titled as „Mohd.Nauman Khan and another v. Abdul Mueed and
another‟ is false and that the respondent has committed Criminal
Cont. Case (Crl.) No. 0009/2009 Page 21 of 27
Contempt of Court so as to be punished under the provision of the this
Act.
32. Learned counsel for the petitioners has relied on Dhananjay
Sharma (Supra), to contend that whether the affidavit filed by the
respondent is false or not be determined by this Court by taking
appropriate evidence and come to the conclusion that the affidavit filed
by the respondent is false. The judgment relied on by the petitioners is
however, distinguishable as that was a petition for Habeas Corpus
where there was a complaint of detention of a citizen and it was
contended on behalf of the Police Authorities that the person was not
detained by them and an affidavit to the effect was filed. The Supreme
Court had directed the Central Bureau of Investigation to make an
enquiry and to ascertain whether the affidavit filed was correct or not
and whether the person in respect of whom Habeas Corpus Petition was
filed was detained or not. The investigating agency after enquiring,
submitted a report that affidavit filed by the police authorities was false
and consequently, for filing a false affidavit the action was taken by the
Supreme Court. Apparently the case of the respondent is
distinguishable as in the case of respondent there is no conclusive
finding that the affidavit filed by the respondent is false except for the
bald allegations of the petitioners. Ex-facie the deposition of the
respondent cannot be termed to be false and it cannot be held that he
Cont. Case (Crl.) No. 0009/2009 Page 22 of 27
had consented to the sale of the properties of the wakf. This is not the
case of the petitioners that the properties were sold by a majority
decision in the meeting of Majlis-e Aiwaan rather the specific allegation
of the petitioners is that the respondent had consented for the sale of
the properties.
33. Another case relied by the learned counsel for the petitioners
Murre and Company (Supra) is also distinguishable as in the case relied
by the petitioners, a statement was made on an affidavit that the
property in dispute had not been sold in compliance with the order of
injunction issued by the High Court. The categorical assertion of fact
deliberately made before the Supreme Court was found to be false and
it was also inferred that the false fact was deposed with a view to gain
advantage. Though, later on an unqualified apology was tendered and
thus, it was admitted by the deponent that he had deposed the facts
falsely. The Supreme Court had held that there was no dispute on the
factum of the false and fabricated statement finding its place in the
affidavit and subsequent unconditional apology was not accepted and
the deponent of false affidavit was punished for committing the
Criminal Contempt of Court. The case relied on by the petitioner is
distinguishable as the respondent has not admitted that the statement
regarding consent being not given by him for the sale of the properties
Cont. Case (Crl.) No. 0009/2009 Page 23 of 27
of Waqf is false nor it can be termed to be false in any manner in the
present facts and circumstance.
34. Reliance has also been placed by the petitioner on Welset
Engineers and others v. Vikas Auto Industries and others, 2006 (32)
PTC, 190 to contend that for determining the matter of the charge in a
contempt petition, the court may either rely on the fact file or may
decide for taking such evidence as it deems fit, and therefore, merely
because the disputed questions of fact are involved, it would not
preclude the Court from exercising its jurisdiction under the Contempt
of Courts Act, 1971. In this case, a petition was filed for the contempt of
Court for violation of an interim order passed by the High Court. The
petition for contempt was dismissed on the grounds that there were
disputed questions of fact where it would be necessary to give sufficient
opportunity to the parties to lead evidence and to cross-examine the
witnesses in order to come to a definite conclusion whether the interim
order had in fact been violated and the order 39 Rule 2A was a specific
provision to meet the contingency of the breach of injunction order and
when such remedies were available the person complaining of the
breach of the injunction order should not be allowed to take a
proceeding of contempt of court and that injunction order was passed
at an interim stage and the rights of the parties were still to be
adjudicated finally. The Supreme Court noticing Chapter LVII of the
Cont. Case (Crl.) No. 0009/2009 Page 24 of 27
Bombay High Court (Original Side) Rules containing the Contempt of
Court (9 Supreme Court) Rules 1994 which pertains to proceedings for
contempt under Article 215 of the Constitution of India as well as the
Contempt of Courts Act, 1971 laying down the specific procedure for
dealing with the cases under the Contempt of Courts Act, had
remanded the matter to the High Court for determining the matter on
merits. Even on the basis of ratio of this case, this Court in the present
facts and circumstances does not have to direct the parties to adduce
evidence and thereafter come to a conclusion whether the respondent
had consented to the sale of properties of Waqf or not or whether he
had knowledge about the same. This is not disputed that the similar
affidavits have been filed by the respondents in other suits pending
between the parties being Suit Nos.CS(OS) 326 of 2005, titled as
„Hammad Ahmad v. Abdul Mueed and others, CS(OS) 1149 of 2005,
titled as „ Hammad Ahmad and another v. Abdul Mueed and another‟.
In fact, the first contempt petition being Contempt petition Nos.1479-
1482 of 2005 was filed by the petitioners for contempt on account of
allegedly deposing similar false facts in these above noted suits as has
been deposed in an affidavit filed in FAO Nos.262-264 of 2005, titled as
„Mohd. Nauman Khan and another v. Abdul Mueed and another‟. The
said contempt petition was later on withdrawn by the petitioners. In the
circumstances, the petitioners are not entitled to invoke the Criminal
contempt jurisdiction of this Court against the respondent and it will be
appropriate for determination of these facts in the suits pending
Cont. Case (Crl.) No. 0009/2009 Page 25 of 27
between the parties and prima facie it cannot be held that the affidavit
filed by the respondent is false.
35. It is also no more res integra that exercise of power within the
meaning of Contempt of Courts Act, 1971, is comparably a rarity and is
to be used sparingly and in the larger interest of society and for proper
administration of justice. Element of willingness and intention is
indispensable requirement to take action. The Supreme Court in case
of Prospectus Publication Pvt. Ltd. v. State of Maharashtra, AIR 1971,
SC 221 has observed at page 230 as under:-
“The summary jurisdiction by way of contempt must be
exercised with great care and caution and only when its
exercise is necessary for the proper administration of law
and justice.” (Per Grover, J.) Contempt of Court is
essentially a matter which concerns the administration of
justice and the dignity and authority of judicial Tribunals.
It is not a right of a party to be invoked for the redress of
his grievances. It is not also a mode by which the rights of a
party, adjudicated upon by a Tribunal can be enforced
against another party. Moreover, if the matter, as in the
present case, requires a detailed inquiry, it must be left to
the Court which passed the order and which presumably is
fully acquainted with the subject-matter of its own order.
When the matter relates to mere infringement of an order,
as between parties, it is clearly inexpedient to invoke and
exercise contempt jurisdiction as a mode of executing the
order, merely because other remedies may take time or are
more circumlocutory in character. Contempt jurisdiction
should be reserved for what essentially brings the
administration of justice into contempt or unduly weakens
it (vide (1964) 68 Cal WN 148, AIR 1951 Pat 231, AIR 1966
Mad 21 and AIR 1971 ALL 231).
Cont. Case (Crl.) No. 0009/2009 Page 26 of 27
36. Having carefully considered the allegations made in the contempt
petition, we are of the opinion that the petitioners cannot be allowed to
invoke the jurisdiction of this Court under the Contempt of Courts Act,
1971 for initiating criminal contempt against the respondent in the
facts and circumstances. In any case this Court has already held that
their petition is barred under section 20 of the Contempt of Courts Act,
1971. Therefore, for the foregoing reasons as have been detailed
hereinbefore, the contempt petition is dismissed.
ANIL KUMAR, J.
S.L. BHAYANA, J.
DECEMBER 8, 2010
rs/vk‟
„
Cont. Case (Crl.) No. 0009/2009 Page 27 of 27
+ Cont. Case (Crl.) No. 0009/2009
% Date of Decision: 8.12.2010
Abdul Mueed & Ors.
…. Petitioners
Through Mr. Ravinder Sethi, Sr. Advocate with
Mr. Simran Mehta and Ms. Shalini
Kapoor, Advocates
Versus
Hammad Ahmed …. Respondents
Through Mr. J.P. Sengh, Sr. Advocate with Mr.
Bobby Lao, Advocate
CORAM:
HON’BLE MR. JUSTICE ANIL KUMAR
HON’BLE MR.JUSTICE S.L.BHAYANA
1. Whether reporters of Local papers may
be allowed to see the judgment?
YES
2. To be referred to the reporter or not? NO
3. Whether the judgment should be
reported in the Digest?
NO
ANIL KUMAR, J.
*
1. This is an application by the petitioners under Section 2(c) 11, 12
& 15 of the Contempt of Courts Act, 1971 r/w Article 215 of the
Constitution of India against Hammad Ahmed, the respondent for
initiating criminal contempt proceedings on account of allegedly filing of
false affidavit in an appeal being FAO No. 262 of 2005. The said appeal
was filed by an ex-employee of petitioner No.4 against dismissal of his
petition under section 92 of the Code of Civil Procedure.
Cont. Case (Crl.) No. 0009/2009 Page 1 of 27
2. The petitioners have contended that petitioner No.1 is the Chief
Muttawalli of Hamdard Dawakhana (Wakf) Laboratories whereas the
petitioners No. 2 & 3 are other Muttawallis. The respondent Hammad
Ahmed is also stated to be a Muttawalli.
3. The grievances of the petitioners are that an ex-employee of
Hamdard Dawakhana (Waqf) Laboratories had filed a petition under
Section 92 of the Civil Procedure Code to institute a suit against
Hamdard Dawakhana (Waqf) Laboratories and against its Chief
Muttawallis and other Muttawallis.
4. In the petition under Section 92 of the Civil Procedure Code, the
respondent, Shri Hammad Ahmed had filed replies before the District
Judge. The respondent filed an affidavit deposing and contending that
the petitioners had disposed of the properties of Waqf without his
knowledge and consent, though he is one of the Muttawali.
5. The suit filed by the ex-employee of Hamdard Dawakhana (Waqf)
Laboratories under Section 92 of the Civil Procedure Code was,
however, dismissed in view of Section 85 of the Waqf Act, 1995
contemplating that the jurisdiction of the Civil Court is barred under
the provision of Waqf Act, 1995.
Cont. Case (Crl.) No. 0009/2009 Page 2 of 27
6. In the said petition filed under Section 92, the petitioners had
filed an application under Section 340 of Crl. Procedure Code for
allegedly filing a false affidavit. However, the application of the
petitioners for taking action for filing a false affidavit by the respondent
was dismissed. The trial Judge had held that it is well settled that the
proceedings under section 340 of Cr.P.C should not be permitted to be
utilized by a party to serve his own ends or to satisfy his own urge for
revenge and it seems that was the purpose of the petitioner. The
observations while dismissing the application under Section 340 of Cr.
P.C by the trial Judge are as under:
"24. Perusal of the record further shows that there are
several disputes between the parties and various litigation
are pending between the parties and in the petition under
section 92 of the CPC, all the applicants as well as the
respondents were the defendants, but the petitioners in the
petition under section 92 of the CPC have not afford any
similar application against any of these parties.
Furthermore, Further more as discussed in various
judgments, as above, it is well settled law that the
proceedings under section 340 Cr. P.C should not be
permitted to be utilized by a party to serve his own ends
court to satisfy his own urge for revenge and it seems that
the same has been done by the applicants, in the present
case. From the material on record, it appears that the
object of filing of the present application was not so much
vindicate purity of the administration of justice, but to see
that the respondents, who have been contesting various
litigations with the applicants, herein, before various
courts, be punished under the provisions of penal law.
From the record, it is clear that the applicant have filed the
present application with the motive, only to gratify his
feeling to revenge and to use the present proceeding as an
instrument of oppression and harassment to the
respondents. "
Cont. Case (Crl.) No. 0009/2009 Page 3 of 27
The trial court while dismissing the application did not determine
whether the affidavit filed by the respondent was false or not. It was,
however observed prima facie that the affidavit was not false. Against
the dismissal of their application under Section 340 of the Crl.
Procedure Code, an appeal has been filed by the petitioners, which is
also pending adjudication.
7. The learned counsel has further elaborated the facts and has
contended that against the order of dismissal of the suit filed by the ex-
employee under Section 92 of the Code of Criminal Procedure, an
appeal being FAO No. 262-264 of 2005 was filed in which another
affidavit dated November, 2005 was filed deposing similar facts that
though the respondent is a senior Muttawalli he was not informed of
the details of the sale of properties comprising of four flats at Rishi
Apartment, Farm House at Pul Pehaladpur, One Garage at Lal Kuan
and property bearing No. 3636 Kara Dina Bg. Khan, Lal Kuan, Delhi.
8. The learned senior counsel for the petitioner, Mr. Sethi has
contended that though correctness of the affidavit dated November,
2005 of Sh. Hammad Ahmed, son of late Sh. Hakim Haji Abdul Hameed
filed in FAO No. 262/05 titled Nauman Khan & Anr. Vs. Sh. Abdul
Mueed & Ors., has not been adjudicated and decided, deposing that
though he is a Senior Muttawalli he was neither informed of the details
of the sale of flats No. 601, 602, 603, 604, Rishi Apartment,
Cont. Case (Crl.) No. 0009/2009 Page 4 of 27
Alakhnanda, Tara Apartment, New Delhi-19 and property at 3636, Kara
Dina Bg Khan, Lal Kuan, Delhi and Farm House at Pul Pehaladpur,
New Delhi nor did Abdul Mueed permit anyone to disclose the financial
affairs of the defendant No.1 to the respondent.
9. To refute the allegation of the respondent and contend that the
plea raised by the respondent in the affidavit is false, the petitioners
have relied on the entries of the attendance register of the meeting of
st
Majlis-e-Aiwaan of Hamdard National Foundation (India) held on 21
December, 2001 which bears respondent‟s signatures at item No. 2 and
approval of Majlis-e-Aiwaan, Governing Body, Proposal regarding sale of
four Rishi Apartment Flats, Alakhnand, New Delhi which was approved
on the same date and similarly, the meeting of Majlis-e-Aiwaan of
th
Hamdard National Foundation (India) held on 17 October, 2002 which
bears the signature on the attendance register and shows the
respondent's presence. Meeting on that date had approved the sale of
15 Bighas Agricultural land on Mehrauli-Badarpur Road. Though the
attendance register is signed by the respondent which is also admitted
by him, but the minutes of the meeting stipulating as to what
transpired and what was decided does not bear the signatures of the
respondent.
10. It is contended by the petitioners that in view of the documents
filed by the respondent, the affidavit filed in FAO No. 262-264 on
Cont. Case (Crl.) No. 0009/2009 Page 5 of 27
November, 2005 is false and therefore criminal contempt has been
committed by the respondent. It is further pleaded by the petitioners
that permission was granted under Section 15 of the Contempt of
Courts Act, 1971 to file the contempt petition and in the circumstances
this Court has to adjudicate that the affidavit of Sh. Hammad Ahmed is
false and take action by invoking criminal contempt jurisdiction as the
false affidavit filed by the respondent has prejudiced or interfered with
the due course of judicial proceedings and has obstructed the
administration of justice as contemplated under Section 2(c) of
Contempt of Courts Act, 1971 defining criminal contempt.
11. The learned counsel has contended that under Section 17(5) of
the said act since any person charged with the contempt under Section
15 can file an affidavit in support of his defense and the Court has to
determine the matter of charge either on the affidavits filed or after
taking such further evidence as may be necessary, it is imperative that
in order to determine the falsity of the affidavit of November, 2005 of
Hammad Ahmed, respondent, the Court can take evidence and
determine that the false affidavit has been filed and after determining
that the affidavit filed in the appeal was filed, take action for committing
contempt of Court.
12. Relying on Welset Engineers and Anr. vs. Vikas Auto Industries &
ors, 2006 (32) PTC 190 (SC) it is contended that for determining the
Cont. Case (Crl.) No. 0009/2009 Page 6 of 27
matter of the charge in a contempt petition, the Court may rely either
on the affidavit filed or may decide after taking such evidence as deems
fit and merely because disputed questions of fact are involved, it would
not preclude the Court from exercising its jurisdiction under the
Contempt of Courts Act, 1971. The learned senior counsel further
contended that making false statements on oath may deliberately
constitute criminal contempt and relied on Murray and Company vs.
Ashok Kr. Newatia & Anr. (200) 2 SCC 367. Mr. Sethi has also relied on
Pallav Sheth vs. Custodian & Ors., (2001) 7 SCC 549 to contend that
the decision of Om Prakash Jaiswal vs. D.K.Mittal, (2000) 3 SCC 171
had been over ruled by the Supreme Court in the case of Pallav Sheth
(supra). Mr. Sethi, learned senior counsel has also relied on Dhananjay
Sharma vs. State of Haryana, (1995) 3 SCC 757 to contend that filing
false affidavit amounts to conduct which has the tendency to interfere
with the administration of justice or the due course of judicial
proceedings and amounts to commission of criminal contempt.
13. The court had issued notice to the respondent pursuant to which
a reply has been filed on behalf of respondent contending inter-alia that
the respondent has not filed any false affidavit and the contempt
petition is a device to prevail upon the respondent to dissuade him to
seek remedies against the petitioners. It is asserted that the contempt
petition filed by the petitioners is barred by law of limitation and is not
maintainable. It has also been pleaded that the petitioners remedy
Cont. Case (Crl.) No. 0009/2009 Page 7 of 27
under section 340 of Criminal Procedure Code is still pending and in
the circumstances the petitioners cannot invoke the Criminal contempt
Jurisdiction of the Court. According to respondent the petitioners have
filed four contempt petitions and two applications under section 340 of
Criminal Procedure Code in different courts against the answering
respondent on similar allegations with a view to harass and intimidate
the respondent.
14. The respondent stated that he had not signed the minute books
as the minutes were not circulated nor his objections against disposing
the properties were recorded. According to him he had only signed the
attendance sheet. It is asserted that the minute book is separate from
the attendance register. The respondent also contended that petitioner
no.1 has illegally appointed Petitioner No. 3 who is his son as fifth
Mutawalli of respondent no.4 in contravention of the wakf deed and he
is using the funds of respondent no.4 for his personal use instead of
Charitable public purpose which is the major object and purpose for
which respondent no.4 wakf was created. The respondent also
st
contended that the minutes of meeting dated 21 December 2001 does
not bear his signatures nor were the minutes circulated and what is
stated in the minutes was not decided in the two meetings.
15. The respondent also disclosed that the petitioners had filed a
contempt petition no. 1479-1482 of 2005 which was withdrawn by
Cont. Case (Crl.) No. 0009/2009 Page 8 of 27
order dated 20.12.2005. Thereafter another contempt petition was filed
being Cont. Case no. 64-67 of 2006 titled as Abdul Mueed & Ors. vs.
Hammad Ahmed & Anr. which was vehemently pursued but when the
petitioners realized that the court may dismiss the petition, it was
withdrawn by the petitioners with liberty to file an appropriate legal
proceeding by order dated 17.02.2009 and present contempt
proceedings has been filed thereafter.
16. The learned counsel for the respondent has also relied on AIR
1975 Allahabad 366, Gulab Singh & Anr. vs. The Principal, Sri Ramji
Das; 70 (1997) DLT 60, Indian Music Industry (IMI) vs. Charanajit
Gupta @ Chandi & Ors.; 154 (2008) DLT 647, R.P. Malik vs. Anil
Sharma & Ors. and (2000) 3 SCC 171, Om Pakash Jaiswal vs. D.K.
Mittal and Anr. to contend that the contempt petition is barred by
limitation and it cannot be held that the respondent has committed a
criminal contempt.
17. This court had directed the petitioners to produce the relevant
original attendance register and minute books. The original record
directed by the court was produced by the petitioners which was
perused by this court. The alleged false affidavit was filed by the
st
respondent in November, 2005 regarding the minutes of 21 December,
th
2001 and 17 October, 2002. If the petitioners knew that the affidavit
filed by the respondent in November, 2005 was false whether the
Cont. Case (Crl.) No. 0009/2009 Page 9 of 27
st
contempt petition filed on 31 March, 2009 would be within time or not
is the first question to be determined.
18. To determine whether the Criminal Contempt petition is within
time or not the following dates and events would be relevant:
November, 2005: Alleged false affidavit filed by the respondent in
FAO No.262-264/2005 contending that though
he is senior Mutawalli, he is neither aware nor
is informed of the details of the property
disposed of as Abdul Mueed does not permit
any one to disclose the financial affairs.
19.11.2005: Petitioners filed contempt case (C) No. 1479-
1482 of 2005 in FAO No. 262/2005. The said
contempt petition was filed with respect to the
affidavits contending that the respondent is not
aware or informed about the details of
properties sold filed in:
(i) Suit No. CS (OS) No. 326 of 2005 titled
Hammad Ahmed vs. Asad Mueed and
others.
(ii) C.S. (OS) No. 1149 of 2005 titled
Hammad Ahmed and another Versus
Abdul Mueed and others.
(iii) FAO No. 262/2005 titled Mohd.
Nauman Khan and others vs. Abdul
Mueed and others.
20.12.2005: The petitioners alleged that they were advised
that one contempt petition in respect of false
affidavits filed in different cases would not be
maintainable and as such the petitioners
withdrew the said contempt case No.1479-1482
of 2005 in FAO No. 262 of 2005 with liberty to
file a fresh petition.
Cont. Case (Crl.) No. 0009/2009 Page 10 of 27
9.01.2006: The Petitioners filed another petition for
Criminal Contempt being CCP No. 64-67 of
2006 in FAO No. 262 of 2005 against the
respondent for contumaciously and deliberately
filing a false affidavit in Court. Though the
petitioners had sought initiation of Criminal
Contempt, however, permission as
contemplated under law was neither applied
nor taken before filing the said contempt
petition.
2.11.2006: The Respondent filed a reply taking the plea
that the contempt petition will not be
maintainable. The contemnor still persisted
with the contempt petition and rather
contended that in reply the respondent has
filed another false affidavit.
17.2.2009: The petitioners withdraw the said contempt
petition with the liberty to take appropriate
legal proceedings.
27.2.2009: The applicants applied vide their letter to the
standing counsel, State of NCT of Delhi, Delhi
High Court, New Delhi for approval to file the
Criminal complaint.
12.3.2009: The standing counsel granted approval to file
the Criminal contempt petition.
20.3.2009: The approval was received by the petitioners.
31.3.2009: Petition filed for Criminal Contempt by the
petitioners under section 2 (c) read with section
11 and 12 of the Contempt of Courts Act, 1971
with an application under Section 5 read with
Section 14 of the Limitation Act and 151 of
CPC
22.12.2009: The respondents filed their reply to the
contempt petition stating that the petitioners
have filed 4 Contempt Petitions and 2
Applications u/s 340 Cr. P.C. in different
courts against the answering respondent and
his son on similar allegations with a view to
harass and intimidate the respondent and
Cont. Case (Crl.) No. 0009/2009 Page 11 of 27
contempt petition is barred under section 20 of
the Contempt of Courts Act, 1970.
19. The Limitation for initiating contempt by the Court either on its
own motion or otherwise is one year from the date on which the
contempt is alleged to have been committed. This is not disputed that
for the present petition, the alleged contempt was committed when the
affidavit was filed by the respondent in FAO 262-264 of 2005. According
to section 20 of the Contempt of Courts Act, 1970, the contempt could
be initiated against the respondent till November, 2006. Admittedly the
present petition is not filed by the petitioners by November, 2006. The
next question is whether the petitioners are entitled for exclusion of
period spent on filing other contempt petitions under section 14 of the
Limitation Act, 1963 or any other provision. The petitioners have also
sought condonation of delay in filing the petition under section 5 of the
Limitation Act.
20. The petitioners have invoked section 5 & section 14 of the
Limitation Act, 1963. Section 5 for condonation of delay and section 14
to contend that the time taken in pursuing other petitions for contempt
be excluded. It has been held in; T.M.A. Abdul Hamed
vs.S.Radhakrishnan, 1989 LW (Crl) 237 that delay in initiating
contempt proceedings cannot be condoned. In Krishnalal Chhoteylal,
(1987) 13 ALR 44, it was held that the provisions of the Limitation Act,
Cont. Case (Crl.) No. 0009/2009 Page 12 of 27
1963 do not apply to the Contempt of Courts Act, 1971. No intervening
event or order stops the running of time specified under section 20 of
the Contempt of Courts Act, 1971 as was held in Golcha Advertising
Agency v. The State of Maharashtra, (1990) 2 Bom CR 262 (Bom). In
V.M.Kanade vs Madhao Gadkari, (1990) 1 Mah LR 544 (Bom), it was
held initiation of any proceedings for contempt is barred after the expiry
of a period of one year from the date on which the contempt is alleged to
have been committed.
21. The learned counsel for the respondent has relied on AIR 1975
Allahabad 366, Gulab Singh & Anr. vs. The Principal, Sri Ramji Das
holding that no provision stops running of the time of limitation of one
year under section 20 of the Contempt of Courts Act, 1971. It was
categorically held that
“ there is no provision under the Contempt of Courts act
which in any manner stops the running of time of one year
contemplated by Section 20 of the Act…. the time, within
which the proceedings for contempt are to be initiated, is
prescribed by the Contempt of Courts Act and not by the
Limitation Act. ”
In para 8 of the said judgment at page 367 it was held as under:
“8. Sri Bhattacharya, learned counsel for the petition,
contended that the period during which the writ petition
no. 1015 of the 1973 was pending should not be counted in
computing the period of one year under section 20 of the
Contempt of Courts Act. This is a hollow argument without
any thoughtful content in it. There is no provision under
the Contempt of Courts Act which in any manner stops the
Cont. Case (Crl.) No. 0009/2009 Page 13 of 27
running of time of one year contemplated by Section 20 of
the Act. Sri Bhattacharya then made a more hollow
argument to the effect that the Indian Limitation Act
applies. We fail to understand what benefit can Sri
Bhattacharya derive from the provisions of the Indian
Limitation Act when the time, within which the proceedings
for contempt are to be initiated, is prescribed by the
Contempt of Courts Act and not by the Limitation Act.”
22. The learned counsel for the respondent has also relied on (2000)
3 SCC 171, Om Prakash Jaiswal vs. D.K.Mittal & Ors. to contend that
Section 5 of the Limitation Act is not applicable under Section 20 of the
Contempt of Courts Act, 1971. The counsel for the respondent has also
relied on Indian Music Industry (IMI) v. Charanajit Gupta @ Chandi &
Ors: 70(1997) Delhi Law Times 60 to contend that Section 20 of the Act
talks of “initiation” of proceedings by a court. It is axiomatic that
“initiation” of contempt proceedings would be only when the Court has
applied its mind and passed some order. “Institution” of a petition for
proceedings under the Act cannot be equated with “initiation” of
proceedings by court. The two are distinct stages. The first is the
institution, which is just filing of the petition in the court and the
second is its consideration and initiation of action thereon by the Court.
Thus, if an application for taking action under the Act is filed within a
period of one year from the date of the alleged commission of contempt,
but the Court has passed no order thereon before the expiry of one year
from the said date, such application automatically fails because the
Court could not apply its mind to complaint within a period of one year.
Cont. Case (Crl.) No. 0009/2009 Page 14 of 27
23. The learned counsel for the respondent has also relied on R.P.
Malik vs. Anil Sharma and Ors., 154 (2008) DLT 647 holding that
Section 5 of the Limitation Act, 1963 does not deal with the
condonation of period of limitation prescribed under the Contempt of
Courts Act, 1971 and therefore, the delay in initiating proceedings
under Section 20 of the Contempt of Courts Act, 1971 cannot be
condoned under the provisions of the Limitation Act.
24. The learned counsel for the petitioner has relied on Pallav Sheth
vs Custodian and Ors., (2001) 7 SCC 549 to contend that the provisions
of Limitation Act, 1963 would apply to Contempt of Courts Act, 1971
and considering that the petitioners had been filing contempt petitions
which were allowed to be withdrawn with liberty to file appropriate
proceedings, the present petition is within time.
25. The Allahabad High Court in Islamuddin vs. Sri Umesh
Chandrara Tiwari and Anr. 2009(4) AWC 3680 had dealt with the
question of power of the Court to condone and waive the delay in
initiation of Contempt Proceedings under section 12 of the Contempt of
Courts Act, 1971. The following issues were crystallized by the Court
and answered. The issues considered by the division bench of the
Allahabad High Court were as follows:
Cont. Case (Crl.) No. 0009/2009 Page 15 of 27
(i) Whether the decision in Pallav Sheth case :
2001CriLJ4175 , can be construed so as to apply all the
principles enshrined in the provisions of the Indian
Limitation Act (except Section 17 thereof) and as to whether
the same can be made applicable to proceedings to be
initiated under Section 12 of the Contempt of Courts Act,
1971.
(ii). Whether the High Court in exercise of its powers for
initiating contempt of its Court or the contempt of its
subordinate court or Tribunal, as the case may be, has the
power to condone and waive the delay in initiation of
contempt proceedings under Section 12 of the Courts Act.
In paras 75 and 76 of the said judgment of Islamuddin (supra)
the Allahabad High Court had held as under:
“75. Thus, the judgment in Pallav Sheth (supra), in our
view, cannot be said to be an authority on the question as
to whether the provisions of Section 5 of Act 1963 would
have application where the contempt proceedings are
initiated after expiry of the period of one year from the date
of alleged contempt that is Section 20 of Act 1971. The
above judgment is an authority for the proposition that
contempt proceedings would be deemed to have been
initiated by the Court when (1) an application is filed before
the Court by an individual for bringing to its notice the
disobedience or defiance of its order and requesting for
punishing the contemnor for committing contempt of the
Court; (2) in a matter of criminal contempt when an
application is moved before the Advocate General or when
the Court permits to move before it directly; (3) in the
matter of contempt of subordinate court when reference is
made by the subordinate court; and (4) in the matter of suo
motu action, when the notice is issued by the Court. The
Apex Court said that if the above actions are taken within
one year from the date, contempt is alleged to have been
committed, the application would be deemed to be within
the time prescribed under Section 20 of Act, 1971. It also
says where the defiance or disobedience could not come to
Cont. Case (Crl.) No. 0009/2009 Page 16 of 27
the knowledge of the applicant or the Court due to fraud
played by the contemnor, the date of knowledge shall be
treated to be the date when contempt is alleged to have
been committed.
76. We, therefore, answer both the questions referred by
the Hon'ble Single Judge in negative and hold that for the
purpose of Section 20 of Act 1971, the Act 1963 and its
provisions (except-Section 17) have no application
whatsoever. The law laid down by the Apex Court in Pallav
Sheth (supra) does not make Section 5 of Act 1963
applicable and would not confer power upon the Court to
condone or waive delay where proceedings of contempt are
sought to be initiated under Act 1971 after one year from
the date when the contempt is alleged to have been
committed.”
26. A Division Bench of the Orissa High Court in Sri. Jayadev Swin v.
Vatsal Raghu and another, 2005 (1), OLR 699, rather relying on Badra
Kanta Mishra v. Gatika Rusha Mishra AIR 1997 4 SC 2255; Pallav Seth
(Supra), and Om Prakash Jaiswal (Supra), had held that even the
jurisdiction of the High Court under Article 215 of the Constitution is
restricted by Section 20 of the Contempt of Courts Act, 1971 and the
Court cannot punish a person for contempt beyond the period of
limitation i.e. after one year from the date of cause of action and Section
5 of the Limitation Act has no manner of application to proceeding
under the Contempt of Courts Act, 1971. On similar analogy, Section
14 of the Limitation Act, 1963 will not be applicable and the petitioners
shall not be entitled for exclusion of time in proceedings undertaken
allegedly bona fide in the Court which did not have jurisdiction.
Cont. Case (Crl.) No. 0009/2009 Page 17 of 27
27. Even on the facts, it is difficult to infer that the petitioners
continued the proceedings bona fide being CCP Nos.64-67 of 2006,
th
which was filed on 9 January, 2006 pursuant to withdrawal of another
contempt petition being No.1479-1482 of 2005 which was withdrawn on
th
20 December, 2005. The criminal contempt petition being No.64-67 of
2006 was filed without obtaining the approval of the Standing Counsel.
Though, the petitioners deemed to have known that the criminal
contempt petition could not be filed without the approval of Standing
th th
Counsel yet from 9 January, 2006 till 12 March, 2009 no steps were
taken for obtaining the permission of the Standing Counsel for initiating
the Criminal contempt. Even in the petition and the application filed by
the petitioners, no reasons have been given for not applying for
permission from the Standing Counsel. Though, the petitioners were
th
permitted to withdraw the CCP Nos.64-67 of 2006 on 17 February,
2009 with liberty to take appropriate legal proceedings, however, in the
facts and circumstances, it is difficult to infer that the petitioners were
pursuing the said petition bona fide so as to seek exclusion of the time
th th
from 9 January, 2006 up till 17 February, 2009. This is without
prejudice the findings of this Court that if Section 5 of the Limitation
Act, 1963 is not applicable to the Contempt of Courts Act, 1971, a
fortiori, Section 14 of the Limitation Act will also not be applicable.
Cont. Case (Crl.) No. 0009/2009 Page 18 of 27
28. For the foregoing reasons, the inevitable conclusion in the facts
and circumstances is that the above noted Criminal Contempt petition
is barred by time, as the alleged contempt was committed in November,
2005 and the petitioner had come to know about the alleged contempt
in November, 2009. The petitioners had applied for consent of the
th
Standing Counsel of State of NCT of Delhi on 27 February, 2009 and
th
the approval was granted on 12 March, 2009, which was allegedly
th
received by the petitioners on 20 March, 2009 where after, the petition
for contempt of Court along with an application under Sections 5 & 14
st
of the Limitation Act was filed on 31 March, 2009. The inevitable
inference in the facts and circumstances is that taking it from any
angle, the above noted Criminal Contempt Petition is barred by time.
29. Though, this court has held that the petition is barred by time,
however, the merits of the case are also considered in the facts and
circumstances. According to the petitioners, the affidavit filed in
November, 2005 by the respondent, Sh. Hammad Ahmad, deposing that
being a Senior Mutwalli, he was not aware, nor informed of the details
of the properties of the Waqf being sold, nor had he consented to the
sale of the properties more so because the petitioners especially Sh.
Abdul Mueed had not permitted anyone to disclose the financial affairs
to the respondent. In order to establish that affidavit is false, the
Cont. Case (Crl.) No. 0009/2009 Page 19 of 27
reliance has been placed on the minutes of the meetings of Majlis-e-
st th
Aiwaan dated 21 December, 2001 and 17 October, 2002.
30. From the photocopies of the minutes of the meetings of Majlis-e-
st th
Aiwan dated 21 December, 2001 and 17 October, 2002, it was
contended that the minutes were signed by respondent No.2 as he was
present on those days. In the circumstances, this Court had directed
the petitioners to produce the original minutes. On perusal of the
registers which were produced by the petitioners, it became apparent
that the attendances of the Mutwallis and others who had attended the
meetings were on separate pages than on the pages where the minutes
were pasted. The attendance sheet in the register stipulated as to who
all had attended the meeting. The registers did not have the agenda for
those meetings and the minutes of the meetings were typed on a
separate page and cut and pasted on a separate page than the page on
which the respondents and another had signed indicating that the
meetings of Majlis-e-Aiwaan were attended by them. From the registers
which were produced before this Court, it could not be inferred as to
st th
what was the agenda of meetings held on 21 December, 2001 and 17
October, 2002. Nothing has been produced by the petitioners to show
that the minutes of the meeting were typed in presence of those who
had attended the meetings and had been pasted on a separate page in
the register nor any thing has been produced to show that the copies of
Cont. Case (Crl.) No. 0009/2009 Page 20 of 27
the minutes were sent by post to the respondent. During the course of
the arguments, though it was contended that the respondents had
known the minutes of the meetings, however, nothing could be
produced by the petitioners on the basis of which, it could be inferred
that the respondents would have known the minutes of the meetings.
31. The respondent has also categorically contended that the
properties of the Waqf were sold without the consent of the respondent
and that the petitioner Abdul Mueed has not permitted anyone to
disclose the financial affairs of the Waqf to the respondent. If the
consent of the respondents was required and if the allegation of the
petitioners is that the consent was taken then there should have been
some writings executed or got executed from the respondent conveying
his consent to the sale of properties of the Waqf. The case of the
petitioners is also not that the oral consent was given by the
respondent. Merely because the meeting of the Majlis-e-Aiwaan dated
st th
21 December, 2001 and 17 October, 2002 were attended by the
respondent, it cannot be inferred that he was informed about the
decision taken for sale of the properties and he had consented for the
same. In the circumstances, it cannot be held prima facie that the
respondent‟s affidavit filed in November, 2005 in FAO Nos.262-264 of
2005, titled as „Mohd.Nauman Khan and another v. Abdul Mueed and
another‟ is false and that the respondent has committed Criminal
Cont. Case (Crl.) No. 0009/2009 Page 21 of 27
Contempt of Court so as to be punished under the provision of the this
Act.
32. Learned counsel for the petitioners has relied on Dhananjay
Sharma (Supra), to contend that whether the affidavit filed by the
respondent is false or not be determined by this Court by taking
appropriate evidence and come to the conclusion that the affidavit filed
by the respondent is false. The judgment relied on by the petitioners is
however, distinguishable as that was a petition for Habeas Corpus
where there was a complaint of detention of a citizen and it was
contended on behalf of the Police Authorities that the person was not
detained by them and an affidavit to the effect was filed. The Supreme
Court had directed the Central Bureau of Investigation to make an
enquiry and to ascertain whether the affidavit filed was correct or not
and whether the person in respect of whom Habeas Corpus Petition was
filed was detained or not. The investigating agency after enquiring,
submitted a report that affidavit filed by the police authorities was false
and consequently, for filing a false affidavit the action was taken by the
Supreme Court. Apparently the case of the respondent is
distinguishable as in the case of respondent there is no conclusive
finding that the affidavit filed by the respondent is false except for the
bald allegations of the petitioners. Ex-facie the deposition of the
respondent cannot be termed to be false and it cannot be held that he
Cont. Case (Crl.) No. 0009/2009 Page 22 of 27
had consented to the sale of the properties of the wakf. This is not the
case of the petitioners that the properties were sold by a majority
decision in the meeting of Majlis-e Aiwaan rather the specific allegation
of the petitioners is that the respondent had consented for the sale of
the properties.
33. Another case relied by the learned counsel for the petitioners
Murre and Company (Supra) is also distinguishable as in the case relied
by the petitioners, a statement was made on an affidavit that the
property in dispute had not been sold in compliance with the order of
injunction issued by the High Court. The categorical assertion of fact
deliberately made before the Supreme Court was found to be false and
it was also inferred that the false fact was deposed with a view to gain
advantage. Though, later on an unqualified apology was tendered and
thus, it was admitted by the deponent that he had deposed the facts
falsely. The Supreme Court had held that there was no dispute on the
factum of the false and fabricated statement finding its place in the
affidavit and subsequent unconditional apology was not accepted and
the deponent of false affidavit was punished for committing the
Criminal Contempt of Court. The case relied on by the petitioner is
distinguishable as the respondent has not admitted that the statement
regarding consent being not given by him for the sale of the properties
Cont. Case (Crl.) No. 0009/2009 Page 23 of 27
of Waqf is false nor it can be termed to be false in any manner in the
present facts and circumstance.
34. Reliance has also been placed by the petitioner on Welset
Engineers and others v. Vikas Auto Industries and others, 2006 (32)
PTC, 190 to contend that for determining the matter of the charge in a
contempt petition, the court may either rely on the fact file or may
decide for taking such evidence as it deems fit, and therefore, merely
because the disputed questions of fact are involved, it would not
preclude the Court from exercising its jurisdiction under the Contempt
of Courts Act, 1971. In this case, a petition was filed for the contempt of
Court for violation of an interim order passed by the High Court. The
petition for contempt was dismissed on the grounds that there were
disputed questions of fact where it would be necessary to give sufficient
opportunity to the parties to lead evidence and to cross-examine the
witnesses in order to come to a definite conclusion whether the interim
order had in fact been violated and the order 39 Rule 2A was a specific
provision to meet the contingency of the breach of injunction order and
when such remedies were available the person complaining of the
breach of the injunction order should not be allowed to take a
proceeding of contempt of court and that injunction order was passed
at an interim stage and the rights of the parties were still to be
adjudicated finally. The Supreme Court noticing Chapter LVII of the
Cont. Case (Crl.) No. 0009/2009 Page 24 of 27
Bombay High Court (Original Side) Rules containing the Contempt of
Court (9 Supreme Court) Rules 1994 which pertains to proceedings for
contempt under Article 215 of the Constitution of India as well as the
Contempt of Courts Act, 1971 laying down the specific procedure for
dealing with the cases under the Contempt of Courts Act, had
remanded the matter to the High Court for determining the matter on
merits. Even on the basis of ratio of this case, this Court in the present
facts and circumstances does not have to direct the parties to adduce
evidence and thereafter come to a conclusion whether the respondent
had consented to the sale of properties of Waqf or not or whether he
had knowledge about the same. This is not disputed that the similar
affidavits have been filed by the respondents in other suits pending
between the parties being Suit Nos.CS(OS) 326 of 2005, titled as
„Hammad Ahmad v. Abdul Mueed and others, CS(OS) 1149 of 2005,
titled as „ Hammad Ahmad and another v. Abdul Mueed and another‟.
In fact, the first contempt petition being Contempt petition Nos.1479-
1482 of 2005 was filed by the petitioners for contempt on account of
allegedly deposing similar false facts in these above noted suits as has
been deposed in an affidavit filed in FAO Nos.262-264 of 2005, titled as
„Mohd. Nauman Khan and another v. Abdul Mueed and another‟. The
said contempt petition was later on withdrawn by the petitioners. In the
circumstances, the petitioners are not entitled to invoke the Criminal
contempt jurisdiction of this Court against the respondent and it will be
appropriate for determination of these facts in the suits pending
Cont. Case (Crl.) No. 0009/2009 Page 25 of 27
between the parties and prima facie it cannot be held that the affidavit
filed by the respondent is false.
35. It is also no more res integra that exercise of power within the
meaning of Contempt of Courts Act, 1971, is comparably a rarity and is
to be used sparingly and in the larger interest of society and for proper
administration of justice. Element of willingness and intention is
indispensable requirement to take action. The Supreme Court in case
of Prospectus Publication Pvt. Ltd. v. State of Maharashtra, AIR 1971,
SC 221 has observed at page 230 as under:-
“The summary jurisdiction by way of contempt must be
exercised with great care and caution and only when its
exercise is necessary for the proper administration of law
and justice.” (Per Grover, J.) Contempt of Court is
essentially a matter which concerns the administration of
justice and the dignity and authority of judicial Tribunals.
It is not a right of a party to be invoked for the redress of
his grievances. It is not also a mode by which the rights of a
party, adjudicated upon by a Tribunal can be enforced
against another party. Moreover, if the matter, as in the
present case, requires a detailed inquiry, it must be left to
the Court which passed the order and which presumably is
fully acquainted with the subject-matter of its own order.
When the matter relates to mere infringement of an order,
as between parties, it is clearly inexpedient to invoke and
exercise contempt jurisdiction as a mode of executing the
order, merely because other remedies may take time or are
more circumlocutory in character. Contempt jurisdiction
should be reserved for what essentially brings the
administration of justice into contempt or unduly weakens
it (vide (1964) 68 Cal WN 148, AIR 1951 Pat 231, AIR 1966
Mad 21 and AIR 1971 ALL 231).
Cont. Case (Crl.) No. 0009/2009 Page 26 of 27
36. Having carefully considered the allegations made in the contempt
petition, we are of the opinion that the petitioners cannot be allowed to
invoke the jurisdiction of this Court under the Contempt of Courts Act,
1971 for initiating criminal contempt against the respondent in the
facts and circumstances. In any case this Court has already held that
their petition is barred under section 20 of the Contempt of Courts Act,
1971. Therefore, for the foregoing reasons as have been detailed
hereinbefore, the contempt petition is dismissed.
ANIL KUMAR, J.
S.L. BHAYANA, J.
DECEMBER 8, 2010
rs/vk‟
„
Cont. Case (Crl.) No. 0009/2009 Page 27 of 27