Full Judgment Text
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CASE NO.:
Contempt Petition (civil) 426 of 2002
PETITIONER:
In the matter of Anil Panjwani
RESPONDENT:
(Proceedings under Section 14 of Contempt of Courts Act, 1971)
DATE OF JUDGMENT: 05/05/2003
BENCH:
R.C. LAHOTI & BRIJESH KUMAR.
JUDGMENT:
J U D G M E N T
(in I.A. No.6 in C.A. No.7919 of 2001)
R.C. Lahoti, J.
The main matter, i.e., Civil Appeal No.7919/2001 stands
disposed of by the judgment separately pronounced by us today.
An unsavoury off-shoot of that litigation wherein the respondent
in Civil Appeal is facing a charge under Section 14 of Contempt
of Courts Act, 1971, because of scurrilous attack against an
eminent brother judge of ours in this Court made through
irresponsible, unfounded and reckless allegations contained in
his affidavits filed during the course of proceedings, remains to
be disposed of, which we hereby do.
The plaintiff-respondent in the Civil Appeal, the contemnor
herein, served with the charge sheet, has shown cause. We
have heard him at length and with patience. Fortunately, at the
end good sense has prevailed upon the contemnor. He has felt
genuinely apologetic, and said so with folded hands regretting all
that has happened leading to initiation of proceedings of
contempt. He has, during the course of hearing, posed and
reposed, expressed and re-expressed his full faith in this Court
and tendered apology without any reservation. Not only he
expressed so to us, he also volunteered to make a request
seeking permission to withdraw his two affidavits. He, on a
piece of paper, wrote out in the Court, in his own hand in
vernacular an apology and prayer for leave of the Court to
withdraw the insinuating affidavits. We have taken this writing
on record. In view of what is stated hereinabove, we do not
propose to deal with factual and legal aspects in very many
details as the same is unnecessary. The bare essential facts to
give an overview of the case and a few such features as are
prevailing with us in formulating the operative part of this
judgment, are noticed and stated hereinafter.
On 1.12.1985 the contemnor entered into an agreement to
purchase the suit property, an open plot belonging to a Co-
operative housing society, allotted to one of its members. He
entered into peaceful possession of the property under the
agreement to sell and raised a boundary wall so as to protect the
property and construct a house thereon for himself at some later
point of time. On 9.2.1987 he noticed a stranger attempting
encroachment on the property and proposing to raise some
construction thereon. He protested on the spot and rushed
post-haste to the Court seeking protection under the arm of the
Court and preventing the encroachment in its process of
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commission lest it should ripen into permanency. What
transpired thereafter is a harrowing tale of laws’ delays and the
trespasser withholding the progress of legal process. To a
simple suit involving the least issues and almost nil
complications, either on facts or in law, the written statement to
a plaint (running into a short five pages) was not filed in spite of
little less than 40 adjournments spread-over a period of more
than 5 years and in spite of adjournment costs having also
been imposed on the erring defendant at times. During these
adjournments the Civil suit witnessed three transfers in different
courts. At the end the defendant and his counsel absented,
resulting into ex-parte proceedings. A belated attempt for setting
aside the ex-parte proceedings failed in the Trial Court as also in
the High Court. Several delaying tactics were then employed. A
belated application for cross-examination of the witnesses
examined ex-parte which were not cross-examined in spite of
opportunity being available, a belated application for examining
his own witnesses though there was no written statement and no
positive plea taken in the defence, a highly belated application to
place on record a pleading by way of a counter-claim though
there was no written statement filed by the defendant, were
tried and vigorously pursued. All such attempts failed in the
Trial Court. Each of the adverse orders was put in issue by the
recalcitrant defendant filing successive civil revisions in the High
Court, which were all firmly dealt with by the High Court and the
defendant gained no success. The only advantage gained by the
defendant was to drag on the proceedings. At one stage the
defendant in the suit had approached quasi-judicial forum under
the Cooperative Law where too he failed. The suit filed by the
plaintiff on 9.2.1987, crossing all the hurdles, ended in an ex-
parte decree dated 8.1.2001, allowing all the reliefs sought for
by the plaintiff to him. The First Appeal filed by the defendant,
and an application under Order 41 Rule 27 of CPC seeking to
reopen the evidence, were dismissed. The Second Appeal filed
by the defendant was dismissed in-limine on 16.4.2001. The
defendant filed a petition in this Court seeking leave to file an
appeal under Article 136 of the Constitution. The plaintiff
entered a caveat. On 16.7.2001, the Court, after hearing the
learned counsel for the petitioner and caveator in person
(contemnor herein), directed notice to issue returnable in 4
weeks and "status quo as of today" to continue. The respondent
was allowed liberty to file counter-affidavit which he did. On
28.2.2001 when the matter came up for hearing an adjournment
was sought for on behalf of the petitioner (i.e. the defendant),
which was allowed on payment of Rs.1000/- by way of costs.
The order of status quo was allowed to continue. On 17.9.2001
the matter was directed to be placed for final disposal on
20.11.2001. On 20.11.2001 after hearing the learned counsel
for the petitioner as also the respondent (contemnor) the Court
granted leave and also directed the interim order to continue. In
one of the affidavits filed the contemnor sought for an early
out of turn - hearing of his matter which could not have been
allowed and so was rejected. On 16.8.2002 the contemnor had
filed an affidavit which contains reckless and irresponsible
assertions against the Presiding Judge of the Bench which had
passed the interim order earlier. A different Bench which heard
the matter on September 9, 2002 formed an opinion that the
contents of the said affidavit were grossly contemptuous. The
contemnor present in person was allowed an opportunity of
withdrawing the allegations made so that the main matter could
be heard and disposed of on merits. The contemnor
unfortunately, and ill-advised as he seems to have been, did not
avail the benefit of gesture shown by the Court and chose to
stand by the allegations contained in the insinuating affidavit.
The Court formed an opinion that there was gross contempt
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committed in the presence of the Court and, therefore, directed
action under Section 14 of the Contempt of Courts Act, 1971, to
be initiated. The contemnor was taken into custody and directed
to be lodged in Tihar Jail. Charges were directed to be framed
so as to afford the contemnor an opportunity of defending
himself. On 13.9.2002, the contemnor was ordered to be
released on bail. The charge sheet was served on him whilst he
was in custody. The contemnor filed a reply wherein he still
chose to continue by the stand taken by him earlier and claimed
a trial. Initially, he had expressed his desire for being heard by
the Bench which took congnizance of the contempt. However,
later he expressed his desire to be heard by another Bench. This
is how the matter has been placed for hearing before us.
Though the proceedings for contempt are between the
Court and the contemnor, we allowed the learned senior counsel
for the appellant to remain present during these proceedings so
as to assist the Court if needed.
We took up the main appeal and the contempt proceedings
for analogous hearing. The learned senior counsel for the
appellant, submitted, at the commencement of the hearing in
appeal, that the respondent being in contempt should not be
heard unless the contempt is purged. We declined that request
and made it clear that we would like to hear the appeal and the
contempt matter analogously and simultaneously inasmuch as
that course, in the facts and circumstances of the case we
formed an opinion, would better serve the ends of justice. The
contemnor, on the other hand, made a request diametrically
opposed to the one made by the learned senior counsel for the
appellant. The contemnor submitted that the main appeal be
heard and decided before the contempt proceedings are taken
up for hearing. His prayer too we declined.
It is no rule of law, and certainly not a statutory rule that
a contemnor cannot be heard unless the contempt is purged. It
has only developed as a rule of practice for protecting the
sanctity of the Court proceedings and the dignity of the Court
that a person who is prima facie guilty of having attacked the
Court may be deprived of the right of participation in hearing lest
he should misuse such opportunity unless he has agreed to
disarm himself. The Court would not be unjust in denying
hearing to one who has shown his lack of worth by attacking the
Court unless he has agreed to beat a retreat and the Court is
convinced of the genuineness of such retreating. It would all
depend on the facts and circumstances of a given case and the
nature of contempt under enquiry which would enable the Court
exercising its discretion either way.
The leading English authority on the subject is Hadkinson
Vs. Hadkinson (1952) 2 All ER 561. Under a decree of
divorce the custody of the child born out of wedlock was given to
the wife with an undertaking that the child should not be taken
out of the court’s jurisdiction except by its leave. The wife
defied the court’s order. In an appeal against the order of
custody preferred by the wife she was refused to be heard
unless she purged the contempt by returning the child. Lord
Denning stated the rule by observing that disobedience with an
order of the Court is not itself a bar to be heard but "if his
disobedience is such that, so long as it continues, it impedes the
course of justice and the cause, by making it more difficult for
the court to ascertain the truth or to enforce the orders which it
may make"- the Court may form opinion for exercise of court’s
discretion in favour of refusing to hear the contemnor. Romer LJ
with whom Somervell LJ agreed, held that the contempt
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committed by the wife was one of grossest kind and stated as a
general rule that no application to the Court by such a person
would be entertained until the contempt had been purged. In
our opinion, the view taken by Denning LJ is more acceptable
being less rigid. The House of Lords in X Ltd. Vs. Morgan-
Grampian Ltd.- (1990) 2 All ER 1, chose to follow the view
taken by Denning LJ and observed that in a case where a
contemnor not only fails wilfully and contemptuously to comply
with an order of the Court but makes it clear that he will
continue to defy the court’s authority if the order should be
affirmed on appeal, the Court must have a discretion to decline
to entertain his appeal against the order.
In Dr. H. Phunindre Singh & Ors. Vs. K.K. Sethi &
Anr., (1998) 8 SCC 640, the Court has observed inter alia __ "In
our view, in the facts of the case, particularly when the order
passed by the learned Single Judge of the High Court was not
stayed by the Division Bench, the contempt petition should have
been disposed of on merits instead of adjourning the same till
disposal of the appeal, so that question of deliberate violation of
the subsisting order of the Court is considered and enforceability
of the Court’s order is not permitted to be diluted."
To our mind, the rule as to denying hearing or withholding
right of participation in the proceedings to the contemnor may
briefly be summed up and so stated. It lies within the discretion
of the Court to tell the contemnor charged with having
committed contempt of Court that he will not be heard and
would not be allowed participation in the Court proceedings
unless the contempt is purged. This is a flexible rule of
practice and not a rigid rule of law. The discretion shall be
guided and governed by the facts and circumstances of a given
case. Where the Court may form an opinion that the contemnor
is persisting in his behaviour and initiation of proceedings in
contempt has had no deterrent or reformatory effect on him
and/or if the disobedience by the contemnor is such that so long
as it continues it impedes the course of justice and/or renders it
impossible for the Court to enforce its orders in respect of him,
the Court would be justified in withholding access to Court or
participation in the proceedings from the contemnor. On the
other hand, the Court may form an opinion that the contempt is
not so gross as to invite an extreme step as above, or where the
interests of justice would be better served by concluding the
main proceedings instead of diverting to and giving priority to
hearing in contempt proceeding the Court may proceed to hear
both the matters simultaneously or independently of each other
or in such order as it may deem proper.
The present one is not a case where we cannot effectively
hear the appeal unless the contempt is purged. Undoubtedly,
the contemnor has been guilty of casting scurrilous aspersions
on a very esteemed and learned brother of ours known for his
firmness, objectivity and patience apart from his learning and
erudition. And, no secret, we do feel hurt on his having been
attacked for no justification yet we have to dispense justice and
in accordance with law. The dignity of the ocean lies not in its
fury capable of causing destruction, but in its vast expanse and
depth with enormous tolerance.
Accordingly, the hearing in both the matters proceeded
analogously and has come to an end.
The Contemnor, arguing the matter in person, took pains
to take us through the bulky record of the case with a view to
demonstrate the sense of frustration he suffered by reason of
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the fact that the appellant (defendant) in this Court had not
placed the record straight and on the basis of incomplete and
incorrect documents succeeded in obtaining the order of a status
quo which came in the way of the Contemnor to enjoy the fruits
of the decree in his favour obtained after near about 15 years of
long litigation. Some examples, as indicated, we may narrate,
without getting into much details of the same.
According to the Contemnor, the appellant filed 14
documents in this Court accompanied by an application for
permission to file the same endorsing that they formed part of
the record "in this Court and the courts below". The appellant
(defendant) did not participate in the proceedings in the trial
Court which was ex-parte. No order was passed by this Court
permitting those documents to be taken on the record. They did
not form part of the record of the courts below but they were
freely referred to and used at the time of arguments in the
Special Leave Petition and in obtaining the interim order of
status quo. We may indicate that an effort was made to refer
those documents by the appellants before us also during the
course of the hearing, but we could not permit it since no such
order was passed giving permission to bring those documents on
the record. Next it is pointed out that in the list of dates an
averment has been made by the appellant that the "trial court
had stayed the execution proceedings against the petitioner on
the application filed by him". It is also incorrect. No stay was
granted on the application of the petitioner (defendant). Yet
again, the report of the Advocate Commissioner was filed in this
Court as a part of the SLP paper book but without the site plan
which had very material bearing on the merit of the matter,
though the document was certified to be a true-copy of the
report of the Advocate Commissioner. The subsequent report of
the Advocate Commissioner dated 25.2.1987 was suppressed
and not placed on the record. Similarly, a copy of the order
dated 8.8.2001 passed in Civil Revision No.842 of 2001 by
Ms.Justice Gyan Sudha Mishra was not placed by the petitioner
before this Court. It contained a direction to proceed with the
execution proceedings and for issuance of a warrant of
possession. A list of members of the co-operative society was
also filed but without the endorsement in the original list that it
was not for the purposes of proceedings in the court but for the
use of the members. The Contemnor submitted that it was also
material suppression of fact on the part of the appellant. Yet
another fact brought to our notice is that after the objections of
the appellant (defendant) were rejected by the Execution Court
an outsider Rajendra Kumar Tiwari filed objections under Order
21 Rule 97 of the Code of Civil Procedure with an allegation that
he was residing in the premises as a tenant since 1982.
According to his objection he took some additional
accommodation in his tenancy in 1986. These objections were
rejected. The stand was contrary to the report of the Advocate
Commissioner as the property was only an open piece of land till
then. Some other similar contradictory facts and circumstances
were pointed out by the Contemnor.
Maybe, the Contemnor felt frustrated finding himself stuck
up again after a prolonged litigation of 15 years, on basis of such
unworthy and unreliable record as indicated above. But we feel
that such sense of frustration could not have given way to the
kind of remarks and aspersions thoughtlessly made in the
counter affidavits filed by the Contemnor. The inaccuracies, as
pointed out by the Contemnor, could only be dispelled, by
bringing the correct facts to the fore by filing affidavit in reply.
It was though done, but it might obviously have taken some
time to be considered, meaning thereby some more delay but it
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would be inevitable. He seems to have also taken care to file a
caveat but of no avail. These circumstances could, if at all,
evoke some sense of sympathy with the Contemnor but it could
not provide any justification for such unfounded scurrilous
outbursts in the affidavits against a Judge of this Court.
In the above background, however, we find that not too
late in the day better sense prevailed in the saner moments
under which he genuinely expressed regrets before us with
folded hands and pleaded for permission to withdraw such of the
two affidavits filed by him containing the objectionable
averments made therein. We have given our due consideration
to the request made, in the light of the facts and circumstances
enumerated above and particularly the fact that initially he was
arrested and sent to jail in connection with this contempt matter
where he was lodged for four days before being released on bail.
These factors, in our view, weigh in favour of accepting the
request allowing him to withdraw the objectionable affidavits,
rather than to continue with this matter and send him again to
jail, though repentant he is, a little late undoubtedly.
For the above reasons, we allow the request to withdraw
the affidavits and drop the proceedings with a note of caution
that in future he must be careful and may not give rise to any
such occasion again. If he does so, this order can always be
taken into consideration as a background material.
This Contempt Petition thus stands finally disposed of in
the manner indicated above.