Rajasthan High Court - Jaipur
Vishvavibhuti Videh vs Subhash Chand Paliwal And Others on 15 February, 2011
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER S.B. Civil Contempt Petition No. 688/2010 In S.B. Civil Second Appeal No. 460/2004 Vishvavibhuti Videh Vs. Subhash Chand Paliwal. Date of Order: 15.02.2011 Hon'ble Mr. Narendra Kumar Jain,J. Mr. Sudesh Bansal, for the petitioner. BY THE COURT:
Heard learned counsel for the petitioner.
2. Neither respondent-contemnor, nor his counsel is present despite service of notice.
3. Petitioner, Vishvavibhuti Videh, has preferred this contempt petition for violation of order dated 16.02.2009 passed in S.B. Civil Second Appeal No. 460/2004 and order dated 19.02.2010 passed in S.B. Civil Writ Petition No. 9444/2009 by this Court and undertaking furnished by respondent to handover vacant possession of suit shop to petitioner.
4. Briefly stated the facts of the case are that plaintiff-petitioner Vishvavibhuti Videh filed a suit for dispossession in respect of suit premise against defendants, which was decreed by trial court i.e. Civil Judge(Junior Division) and Judicial Magistrate, First Class, Ajmer(West), Ajmer vide judgment and decree dated 29.04.1997. Being aggrieved with the same, the defendants preferred Civil Regular Appeal No. 130/1997, which was dismissed by first appellate court i.e. Additional District Judge No. 1, Ajmer vide judgment and decree dated 27.08.2004. Thereafter the defendants preferred S.B. Civil Second Appeal No. 460/2004 before this Court.
5. Second appeal was listed on 16.02.2009 and the same was not pressed by defendants on merits and a prayer was made to grant reasonable time to vacate the shop in question. This Court granted 15 months time to defendants to hand over vacant possession of shop in question on the condition that an undertaking will be furnished by the defendants that they would hand over vacant and peaceful possession of the disputed shop on or before completion of 15 months to the respondents-decree-holders. Four weeks' time was granted to furnish undertaking in the trial court. Other conditions about payment of arrears of rent etc. were also imposed. Relevant/operative portion of the judgment dated 16.02.2009 passed by this Court is reproduced as under:
Learned Counsel for the appellants-defendants undertakes that the appellant will hand over the vacant possession of the shop in question within fifteen months from the date of passing of this judgment to plaintiff-respondent.
In the facts and circumstances and considering the submissions advanced by the learned Counsel for the respective parties on allowing time to appellant to handover the vacant possession of the shop to plaintiff-respondents, it is hereby ordered that the decree shall not be executed by the respondents-plaintiffs against the defendants-appellants up to fifteen months from the date of passing of this judgment on the condition that the appellants submit an undertaking that they would handover vacant and peaceful possession of the disputed shop on or before completion of fifteen months to the respondents-decree-holder. The said undertaking be submitted before the trial Court within a period of four weeks from the date of receipt of certified copy of this judgment.
The appellants would further ensure that at the time of submissions of undertaking that all the arrears of rent have paid/deposited and would further submit proof of payment/deposit of rent. It is also made clear that in case of appellants fails to comply with any of the aforesaid conditions within the time allowed, it would be open for the respondent-decree holder to execute the decree forthwith.
In case the appellants failed to make payment of arrear of rent, if any, the appellants have to pay interest @ 9% on the arrear of rent. The undertaking shall contain stipulation that the appellants shall not sublet, assign or part with the possession of the shop in dispute during the said period, which is for one year and would not create any third party interest therein.
In the result, the present second appeal stands disposed of. The interim order dated 13.10.2004 stands vacated. The stay application also stands rejected.
6. Defendant No. 1 Subhash Chand Paliwal furnished a written undertaking dated 18.07.2009 in the trial court, which reads as under:
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7. Since, there was delay in filing the written undertaking, therefore, the same was not accepted. The defendants filed S.B. Civil Writ Petition No. 9444/2009 before this Court for extension of time to furnish written undertaking in terms of earlier order dated 16.02.2009 passed by this Court in S.B. Civil Second Appeal No. 460/2004. This Court vide order dated 19.02.2010 disposed of writ petition and extended the time to submit the undertaking on or before 26.02.2010. Operative portion of order dated 19.02.2010 is reproduced as under:
In the facts and circumstances of the present case, it is directed that the petitioner shall submit a fresh undertaking before the learned trial Court within a week from today stating therein that the petitioner shall submit an undertaking for vacating the premises on or before 15.05.2010, if such an undertaking is not filed before the learned trial Court on or before 26.02.2010, the learned trial Court is free to execute the decree.
Subject to the above, the writ petition stands disposed of.
8. Since defendant-judgment debtor did not hand over vacant possession of the suit shop to plaintiffs, therefore, an application for execution of decree was filed in the trial court. However, two persons namely Sunil Jain and Smt. Narendra Jain filed objection petition under Order 21 Rule 97 read with Section 151 C.P.C. before executing court on or about 19.05.2010. It is relevant to mention that executing court on 19.08.2010 passed an order that in case decree-holder/plaintiff files an undertaking that in case objection petition is allowed, then he will hand over the possession back to the objectors, then execution proceedings will proceed further, otherwise, there will be a stay on the execution proceedings.
9. Learned counsel for the petitioner submits that as per order dated 19.08.2010, plaintiffs had also furnished written undertaking, but still learned trial court did not issue Warrant of Possession of disputed shop in terms of orders dated 16.02.2009, 19.02.2010 passed by this Court and written undertaking of respondent-judgment debtor. In these circumstances, petitioner has preferred this contempt petition for appropriate order for possession of suit shop to the petitioner and punishment of respondent.
10. A notice to show cause was issued to respondent and in response there to, he entered his appearance through his Advocate, Mr. Sunil Kumar Singh, who filed his Vakalatnama on 21.10.2010 in this Court. Vide order dated 26.11.2010, this Court directed that Respondent Subhash Chand Paliwal will remain present in person on next date in the Court. This Court again vide order dated 05.01.2011, in presence of both the parties, directed that Respondent Subhash Chand Paliwal will remain present in person on 06.01.2011. On 06.01.2011, an application was filed by the respondent for dispensing with the personal attendance in the Court for one month. This Court vide order dated 06.01.2011 directed that case be listed on 07.02.2011 and on the said date respondent, Subhash Chand Paliwal shall remain present in person. Thereafter neither respondent nor his counsel has appeared in the case.
11. In view of above, it is clear that a decree of possession in respect of suit shop was passed in favour of the petitioner by both the courts below and Second Appeal No. 460/2004 was not pressed on merits by judgment-debtor/respondent and a prayer was made for grant of time. This Court vide Judgment dated 16.02.2009 granted 15 months time to vacate suit shop on furnishing written undertaking within a period of four weeks from the date of receipt of certified copy of judgment. Written undertaking was furnished on 18.07.2009. Since it was furnished after expiry of time, therefore, judgment-debtor filed S.B. Civil Writ Petition No. 9444/2009 for extension of time to file written undertaking and time was extended upto 26.02.2010 to file written undertaking. In these circumstances, judgment-debtor/respondent was duty bound to act according to his written undertaking and as per orders of this Court dated 16.02.2009 and 19.02.2010 to hand over vacant possession of suit shop.
12. So far as objection petition by Sunil Jain S/o. Late Shri Navin Chand Jain and Smt. Narendra Jain widow of Late Shri Navin Chand is concerned, they never claimed their possession over disputed shop when matter remained pending for long time in trial court, first appellate court and in this Court. The defendants challenged the decree before first appellate Court and this Court. Contemnor/respondent claimed his possession, he filed written undertaking to hand over possession to plaintiff and not to part with the possession of disputed shop to anyone. He filed writ petition before this Court for extension of time to furnish written undertaking. It appears that after furnishing written undertaking by respondent, either he has parted with the possession of the suit shop in violation of written undertaking in their favour or the respondent/judgment-debtor has got the said objections filed by them to delay the execution proceedings.
13. Submission of learned counsel for the petitioner is that under aforesaid circumstances it is clear that respondent has flouted the order of this Court, therefore, it becomes a duty of this Court to see that it's order is complied with.
14. I have considered the submissions of learned counsel for the petitioner and examined the orders passed by this Court and written undertaking furnished by respondent.
15. Hon'ble Supreme Court in Santanu Choudhari V. Subir Ghosh, reported in 2007 AIR SCW 5693 in similar circumstances where special leave petition against decree for eviction of tenant was dismissed by granting six months time on condition of filing of undertaking by tenant within three weeks. The tenant, however, neither filed any undertaking, nor handed over vacant possession. The Hon'ble apex Court observed that Court can ensure compliance of its order by ensuring delivery of possession to landlord and directed the trial court to cause delivery of vacant possession of premise by eviction of tenant. Para 6 of the judgment is reproduced as under:
6. We, accordingly, direct the trial Court to cause delivery of vacant possession of the premises in dispute to the petitioner Santanu Chaudhuri(landlord) by eviction of the respondent Subir Ghosh(tenant) or anybody else found in occupation of the premises, if necessary, with the help of police, within one month of presentation of a certified copy of this order before the trial Court. We make it clear that this order will not prevent or prejudice the petitioner(landlord) from taking any steps for recovery of rent and mesne profits as he is entitled in accordance with law. The petitioner will also be entitled to Rs. 50,000/- as costs for the present proceedings. The respondent Subir Ghosh(tenant) is granted one month time to deposit the cost in the trial Court. In case the cost is not deposited as aforesaid, the trial Court shall recover the amount from Subir Ghosh(tenant) in accordance with law and the same shall be paid to the petitioner, Santanu Chaudhuri.
16. In Sudarshan Prosad Jaiswal & Another Vs. Maya Sen & Others, reported in (2007) 14 SCC 39, where the time was granted for vacation of premises on furnishing a written undertaking, but the same was not filed in time. The Hon'ble Apex Court recalled the order granting time to vacate premises and directed the executing court to effect delivery of possession within a period of four weeks from receipt/production of copy of the order by observing that in case armed force is required for delivery of possession, S.P. to depute the same within 48 hours from the date the requisition is received therefor. Paras 5 and 6 of the judgment are reproduced as under:
5. In the facts and circumstances of the case, the order dated 7-3-2007, granting time to the petitioners to vacate the premises in question by 30-9-2007, is recalled and the executing court is directed to effect delivery of possession within a period of four weeks from the receipt/production of copy of this order.
6. In case any armed force is necessary for effecting delivery of possession, the same shall be deputed by the Superintendent of Police concerned within forty-eight hours from the receipt of requisition. It is further made clear that if anybody else is found to be in possession of the premises in question, he shall be also dispossessed by the armed force.
17. In K.C.G. Verghese Vs. K.T. Rajendran & Another, reported in (2003) 2 SCC 492, the Hon'ble Apex Court considered the facts, where contemnor filed written undertaking to vacate disputed premises and not to induct any other person in the said premises, passed an order that said order is binding on third person, who has been inducted by the judgment-debtor and directed the executing court to take steps to give effect to the order of the Court, if necessary, with the help of the police for ejecting the judgment-debtor by removing all obstructions thereto. Paras 3 and 4 of the judgment are reproduced as under:
3. The stand of Contemnor 1 is plainly untenable. When the undertaking was given by him to the court, he did not indicate that he was in possession of a part of the premises and not the other portion of the premises nor was such a stand taken in any of the pleadings raised before the High Court or the Rent Controller. In these circumstances, we have to hold that the order of eviction passed against the first contemnor is equally binding upon the second contemnor K.T. Baskaran. Indeed, a power of attorney has been executed by Contemnor 1 K.T. Rajendran in favour of K.T. Baskaran to the effect to attend to all the matters relating to the tenancy of house, ground and Premises No. 7, IV Main Road, Gandhi Nagar, Adyar 600020, which are the tenanted premises in the present case and in that document there is no mention of his independent right to the premises as claimed now. In these circumstances, we overrule the objections raised by the said K.T. Baskaran for vacating the premises in question.
4. We, therefore, direct that the Principal Judge, City Civil and Sessions Court shall take steps to give effect to our order, if necessary, with the help of police for ejecting the said K.T. Baskaran from the said premises and the possession is delivered to the complainant in these proceedings by removing all obstructions thereto and make a report after compliance with this order.
18. The Hon'ble Apex Court considered similar controversy in D.D.A. V/s Skipper Construction Co.(P) Ltd. and Another (1996) 4 SCC 622 held that contemnor ought not to be permitted to enjoy and/or keep the fruits of his contempt is well settled. The Hon'ble Apex Court considered its earlier judgment in Mohd. Idris Vs. Rustam Jehangir Babuji (1984) 4 SCC 216 and other judgments including Full Bench Judgment of Madras High Court and Division Bench judgment of Calcutta High Court in para 19 and 20 of the judgment, Para Nos. 17 to 21 are reproduced as under:
17. The principle that a contemnor ought not to be permitted to enjoy and/or keep the fruits of the contempt is well settled. In Mohd. Idris vs. Rustam Jehangir Babuji (1984) 4 SCC 216, this Court held clearly that undergoing the punishment for contempt does not mean that the Court is not entitled to give appropriate directions for remedying and rectifying the things done in violation of its orders. The petitioners therein had given an undertaking to the Bombay High Court. They acted in breach of it. A learned Single Judge held them guilty of contempt and imposed a sentence of one month's imprisonment. In addition thereto, the learned Single Judge made appropriate directions to remedy the breach of undertaking. It was contended before this Court that the learned Judge was not justified in giving the aforesaid directions in addition to punishing the petitioners for contempt of court. The argument was rejected holding that the Single Judge was quite right in giving appropriate directions to close the breach (of undertaking).
18. The above principle has been applied even in the case of violation of orders of injunction issued by civil Court. In Clarke Vs. Chadhurn (1985) 1 All ER 211, Sir Robert Megarry V.C. Observed:
I need not cite authority for the proposition that it is of high importance that orders of the court should be obeyed. Wilful disobedience to an order of the court is punishable as a contempt of court, and I feel no doubt that such disobedience may properly be described as being illegal. If by such disobedience the persons enjoined claim that they have validly effected some charge in the rights and liabilities of others, I cannot see why it should be said that although they are liable to penalties for contempt of court for doing what they did, nevertheless those acts were validly done. Of course, if an act is done, it is not undone merely by pointing out that it was done in breach of the law. If a meeting is held in breach of an injunction, it cannot be said that the meeting has not been held. But the legal consequence of what has been done in breach of the law may plainly be very much affected by the illegality. It seems to me on principle that those who defy a prohibition ought not to be able to claim that the fruits of their defiance are good, and not tainted by the illegality that produced them.
19. To the same effect are the decisions of the Madras and Calcutta High Courts in Century Flour Mills Ltd. Vs. S.Suppiah (AIR 1975 Mad 270) and Sujit Pal Vs. Prabir Kumar Sun (AIR 1986 Cal 220). In Century Flour Mills Ltd., it was held by a Full Bench of the Madras High Court that where an act is done in violation of an order of stay or injunction, it is the duty of the court, as a policy, to set the wrong right and not allow the perpetuation of the wrongdoing. The inherent power of the court, it was held, is not only available in such a case, but it is bound to exercise it to undo the wrong in the interest of justice. That was a case where a meeting was held contrary to an order of injunction. The Court refused to recognise that the holding of the meeting is a legal one. It put back the parties in the same position as they stood immediately prior to the service of the interim order.
20. In Sujit Pal, a Division Bench of the Calcutta High Court has taken the same view. There, the defendant forcibly dispossessed the plaintiff in violation of the order of injunction and took possession of the property. The Court directed the restoration of possession to the plaintiff with the aid of police. The Court observed that no technicality can prevent the court from doing justice in exercise of its inherent powers. It held that the object of Rule 2-A of Order 39 will be fulfilled only where such mandatory direction is given for restoration of possession to the aggrieved party. This was necessary, it observed, to prevent the abuse of process of law.
21. There is no doubt that this salutary rule has to be applied and given effect to by this Court, if necessary, by overruling any procedural or other technical objections. Article 129 is a constitutional power and when exercised in tandem with Article 142, all such objections should give way. The Court must ensure full justice between the parties before it.
19. This Court in S.B. Civil Contempt Petition No. 556/1993 titled Jagdish Prasad Avasthi Vs. Ramji Lal Meena & Others, vide order dated 10.11.2010, on the basis of above-mentioned judgment of the Hon'ble Apex Court in D.D.A. Vs. Skipper Construction Co.(supra) held as under:
13. The Hon'ble Apex Court has clearly held that the Court must ensure full justice between the parties before it. Division Bench judgment of Calcutta High Court in Sujit Pal Vs. Prabir Kumar Sun (AIR 1986 Cal. 220) was considered by the Apex Court in para 20 of the judgment by referring the fact that Court had directed restoration of possession to the plaintiff with the aid of Police. The Court observed that no technicality can prevent the Court from doing justice in exercise of its inherent power.
14. In these circumstances, it has become necessary to pass an appropriate order for restoration of possession of the petitioner, if the non-petitioners have dispossessed him, as per the report of SHO, Kotwali, Alwar.
15. Consequently, it is directed that non-petitioners will not put any hindrance in the possession of petitioner Jagdish Prasad Avasthi over the property in dispute. If non-petitioners/contemnors are found in possession over the property in dispute, then the SHO, Police Station, Kotwali, Alwar is directed to restore the possession of the petitioner by dispossessing the non-petitioners from the property in dispute.
20. In view of above discussions of facts and law, it is clear that respondent-contemnor Subhash Chand Paliwal has disobeyed orders dated 16.02.2009 and 19.02.2010 passed by this Court and his own undertaking reproduced above. Respondent appeared before this Court through his counsel. He was directed to remain present in person in this Court. His application for exemption from personal appearance for one month was considered and case was adjourned for a month with direction to remain present in person on 07.02.2011. Thereafter neither respondent nor his counsel appeared in the case. It appears that respondent/contemnor is trying to play hide and seek with this Court, which attitude cannot and should not be tolerated. In these circumstances, it is necessary to pass an order for compliance of order of this Court by directing executing court to execute decree and hand over the possession of suit shop to the petitioner-decree-holder, if necessary, by taking police aid as well as for punishment of respondent also.
21. In these circumstances, Executing court, i.e. Civil Judge(Junior Division) & Judicial Magistrate, First Class, Ajmer City(West), Ajmer is directed to execute the decree passed by the trial court, affirmed by first appellate court as well as by this Court vide judgment dated 16.02.2009 within a period of ten days from the date of receipt/production of copy of this order and send compliance report immediately thereafter to this Court. Executing Court will ensure that possession of suit shop is handed over to decree holder/petitioner Vishvavibhuti Videh by dispossessing the respondent Subhash Chand Paliwal or anybody else found in occupation of the premise, if necessary, with the help of the police. It is made clear that any order passed by any subordinate Court will not come in the way of executing Court while making compliance of above order of this Court. The concerned Superintendent of Police and/or S.H.O. will provide necessary police aid, if it is required.
22. A copy of this order may be sent for compliance to Executing Court i.e. Civil Judge(Junior Division) and Judicial Magistrate, First Class, Ajmer City(West), Ajmer.
23. List the matter again on 01.03.2011 for further orders alongwith compliance report.
(Narendra Kumar Jain),J.
Manoj, Item No.117