Punjab-Haryana High Court
Nachhattar Singh vs Surinder Pal Singh And Another on 17 December, 2010
Author: Hemant Gupta
Bench: Hemant Gupta
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision : 17.12.2010
COCP No.2138 of 2010
Nachhattar Singh ...Petitioner
Versus
Surinder Pal Singh and another ...Respondents
COCP No.2139 of 2010
Nachhattar Singh ...Petitioner
Versus
Hardev Singh ...Respondent
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present : Mr. Amit Jhanji, Advocate, for the petitioner.
Mr. K.S.Boparai, Advocate, for the respondents.
HEMANT GUPTA, J.
This order shall dispose of afore mentioned two contempt petitions arising out of eviction order granted by the learned Rent Controller in favour of the petitioner against the respondents, who are father and son and in possession of two separate properties, as tenants.
The petitioner being a Non-Resident Indian sought ejectment of the tenants under Section 13-B of the East Punjab Urban Rent Restriction Act, 1949. The said petition was allowed by the learned Rent Controller on 20.07.2007, when the application for leave to contest was declined and as a consequent thereof, an eviction order was passed. The respondents COCP No.2138 of 2010 2 challenged the order of eviction before this Court. The revision petitions filed by the respondents were dismissed on 15.12.2009, but the respondents were permitted to retain the demised premises up to 28.02.2010 in view of the fact that they have to make alternative arrangements. The Special Leave to Appeal against the said order was dismissed by the Hon'ble Supreme Court on 08.03.2010. The review petition was also dismissed on 04.05.2010. The respondents thereafter filed a curative petition, which was also dismissed on 05.08.2010.
The petitioner sought execution of the eviction order passed against the respondents. In such eviction petition, the tenants filed objections on 15.05.2010. Such objections were dismissed on 19.08.2010. Thereafter, another objection was filed and also the recall of warrants of possession was sought. Such proceedings are pending before the learned executing court.
The present contempt petitions came up for hearing before this Court on 16.11.2010, when show cause notices were ordered to be issued to the respondents. The comments of the learned Executing Court were sought, as to why the proceedings are being adjourned time and again. In pursuance of the show cause notices, the respondents have filed their reply, wherein it has been, inter alia, stated that the petitioner has entered into agreement to sale dated 24.04.2010 in favour of one Mal Singh son of Milkha Singh for a consideration of Rs.97,50,000/- and has received Rs.17,50,000/- as earnest money. The said Mal Singh has filed Civil Suit No.261 dated 26.08.2010 and has obtained interim injunction regarding alienation. Thereafter, the respondents have filed objections, which are still pending and that the petitioner can seek execution of the eviction order in accordance with law. COCP No.2138 of 2010 3
Learned counsel for the petitioner has argued that Mal Singh, who has purportedly, filed a suit, is none else but a person set up by the respondents alone. It is argued that the agreement to sell is purportedly dated 20.04.2010, but the sale deed was to be executed on or before 18.03.2011. It is pleaded in that suit that the defendant (the present petitioner) in mala fide and dishonest intention has started negotiating for sale of land, therefore, the suit for injunction was filed. Learned counsel for the petitioner has pointed out that an application was filed by the defendant for production of the original agreement, but the plaintiff has not produced the original agreement, but an advertisement in the newspaper has been inserted that the agreement has been lost. It is further contended that the fact that the respondents are relying on such suit, though the respondents are not party to the suit nor it affects the tenancy rights, shows that Mal Singh is none else, but a creation of the respondents.
Learned counsel for the petitioner has relied upon a judgment of Hon'ble Supreme Court reported as Rama Narang Vs. Ramesh Narang and another 2006 (11) Supreme Court Cases 114, to contend that Section 2
(b) of the Contempt of Courts Act, 1971 (for short 'the Act') is in two parts i.e. first, willful disobedience to the process of a Court and; second, willful breach of an undertaking given to a Court. Therefore, though the respondents have not undertaken to vacate the premises, but in view of the apparent willful disobedience to the eviction order passed by the Court in the manner mentioned, the respondents are in contempt. The eviction order has attained finality with the dismissal of the Special Leave to Appeal, review petition and curative petition. The respondents have filed objections, which have been again dismissed. The second set of objections has been filed on the basis of the suit filed by Mal Singh, who is none else, COCP No.2138 of 2010 4 but a creation of the respondents. Such sequence of events leaves no manner of doubt that the respondents have utter disregard to the eviction order and have tried to frustrate the order of eviction in all possible manners and, therefore, the respondents have made themselves liable for proceedings under the Act. Learned counsel for the petitioner further referred to a judgment reported as Santanu Chaudhuri Vs. Subir Ghose (2007) 10 Supreme Court Cases 253, wherein the Court has said that even if the tenant has not filed any undertaking, the Court should ensure compliance with its order and see that vacant and peaceful possession is given to the landlord in the interest of justice.
On the other hand, Mr. Boparai, learned counsel for the respondents has relied upon Firm Ganpat Ram Rajkumar Vs. Kalu Ram and others AIR 1989 Supreme Court 2285, Smt. Ram Pyari Vs. Jagdish Lal AIR 1992 SC 1537, R.N.Dey and other Vs. Bhagyabati Pramanik and others 2000 (4) Supreme Court Cases 400 as well as Santanu Chaudhuri's case (supra), to raise an argument that as the respondents have not furnished any undertaking, therefore, it is not a case which discloses a civil contempt. Since there is an order of eviction, the petitioner is at liberty to seek execution of the eviction order in accordance with law.
I have heard learned counsel for the parties at some length. The present contempt petitions came up for hearing on 14.12.2010, when the counsel for the respondents sought some time to get instructions. The instructions, which were to be sought by the respondents, were, whether the respondents are ready and willing to vacate the premises voluntarily. The cases were taken up for arguments on 16.12.2010, when the counsel for the respondents stated that the petitioner has a remedy to seek execution of the order meaning thereby, that the respondents are not COCP No.2138 of 2010 5 willing to vacate the premises on their own. With the said factual background, I have considered the respective contentions o the parties and found that the respondents are guilty of violation of an order passed by the Court.
Section 2(b) of the Act reads as under:
"2. In this Act, unless the context otherwise requires -
(a) xxx xxx xxx
(b) "civil contempt" means willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court;
(c) xxx xxx xxx
(d) xxx xxx xxx"
Section 2(b) of the Act defines "civil contempt" to mean willful disobedience to any judgment, decree, direction, order, writ or other process of a Court or willful breach of an undertaking given to a Court. Willful breach of an undertaking given to the Court is a separate than willful disobedience to any judgment, decree, direction, order, writ or other process of the Court. This is what has been held by the Hon'ble Supreme Court in Rama Narang's case (supra). It was held to the following effect:
"18. The Act has been duly widened. It provides inter alia for definitions of the terms and lays down firmer bases for exercise of the court's jurisdiction in contempt. Section 2(b) of the Contempt of Courts Act, 1971 defines civil contempt as meaning "willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court". (emphasis supplied) Analysed, the definition provides for two categories of cases, namely, (1) willful disobedience to a process of court, and (2) willful breach of an undertaking given to a court. As far as the first category is concerned, the word "any" further indicates the COCP No.2138 of 2010 6 wide nature of the power. No distinction is statutorily drawn between an order passed after an adjudication and an order passed by consent. This first category is separate from the second and cannot be treated as forming part of or taking colour from the second category. The legislative intention clearly was to distinguish between the two and create distinct classes of contumacious behaviour."
The Hon'ble Supreme Court in Rama Narang's case (supra) further held that merely because an order or decree is executable, would not take away the Court's jurisdiction to deal with a matter under the Act provided the Court is satisfied that the violation of the order or decree is such, that if proved, it would warrant punishment under Section 13 of the Act on the ground that the contempt substantially interferes or tends substantially to interfere with the due course of justice. It was held to the following effect:
"24. All decrees and orders are executable under the Code of Civil Procedure. Consent decrees or orders are of course also excutable. But merely because an order or decree is executable, would not take away the court's jurisdiction to deal with a matter under the Act provided the court is satisfied that the violation of the order or decree is such, that if proved, it would warrant punishment under Section 13 of the Act on the ground that the contempt substantially interferes or tends substantially to interfere with the due course of justice. The decisions relied upon by the respondents themselves hold so as we shall subsequently see.
25. In such circumstances, it would neither be in consonance with the statute, judicial authority, principle or logic to draw any distinction between the willful violation of the terms of a consent decree and willful violation of a decree which is passed on adjudication.
26. xxx xxx xxx COCP No.2138 of 2010 7
30. This decision reinforces our view of the law. It does not in any way run contrary to our opinion as expressed earlier on the interpretation to be put on Section 2 (b) of the Act. On the other hand, the Court repelled the submission of the respondents that the petitioner's remedy lay in executing the decree in the following words:
"The fact that the petitioner can execute the decree can have no bearing on the contempt committed by the respondents".
In view of the aforesaid judgment, it is required to be examined that whether the conduct of the respondents is such which substantially interferes or tends substantially to interfere with the due course of justice and whether the disobedience to the order of eviction is "willful".
In Court on Its Own Motion v. N.S. Kanwar, Executive Engineer, 1995(1) PLR 106, a Division Bench of this Court interpreted the words "wilful disobedience" appearing in Section 2(b) of the Act and after examining the precedents on the subject and the dictionary meaning of the word held that:
"28. From the above quoted dictionary meaning of the term 'wilful' and the decisions of the Courts, it is reasonable to derive that term 'wilful disobedience' used in section 2(b) of the Contempt of Courts Act, 1971 cannot be construed to mean that an act must in all cases be designed and deliberate to be held as Civil Contempt. If a party who is fully in know of the order of the court or is conscious and aware of the consequences and implications of the Court's order, ignores it or acts in violation of the Court's order, it must be held that disobedience is wilful. In our view ordinarily it is never practicable to prove the actual intention behind the act or omission. A court can approach the question only objectively and it may presume the intention from the act done as every COCP No.2138 of 2010 8 man is presumed to intend the probable consequence of his act."
In Ashok Paper Kamgar Union v. Dharam Godha, (2003) 11 SCC 1, the Hon'ble Supreme Court held to the following effect:
""Wilful" means an act or omission which is done voluntarily and intentionally and with the specific intent to do something the law forbids or with the specific intent to fail to do something the law requires to be done, that is to say, with bad purpose either to disobey or to disregard the law. It signifies a deliberate action done with evil intent or with a bad motive or purpose. Therefore, in order to constitute contempt the order of the court must be of such a nature which is capable of execution by the person charged in normal circumstances. It should not require any extraordinary effort nor should be dependent, either wholly or in part, upon any act or omission of a third party for its compliance. This has to be judged having regard to the facts and circumstances of each case.
The Hon'ble Supreme Court in Kapildeo Prasad Sah v. State of Bihar, (1999) 7 SCC 569, held to the following effect:
"9. .... Whether disobedience is wilful in a particular case depends on the facts and circumstances of that case. Judicial orders are to be properly understood and complied with. Even negligence and carelessness can amount to disobedience particularly when the attention of the person is drawn to the court's orders and its implications. Disobedience of the court's order strikes at the very root of the rule of law on which our system of governance is based. Power to punish for contempt is necessary for the maintenance of effective legal system. It is exercised to prevent perversion of the course of justice.
10. In his famous passage, Lord Diplock in Attorney General v. Times Newspapers Ltd (1973) 3 All ER 54 (HL) said that there is also COCP No.2138 of 2010 9 "an element of public policy in punishing civil contempt, since administration of justice would be undermined if the order of any court of law could be disregarded with impunity".
Jurisdiction to punish for contempt exists to provide ultimate sanction against the person who refuses to comply with the order of the court or disregards the order continuously. Initiation of contempt proceedings is not a substitute for execution proceedings though at times that purpose may also be achieved.
11. No person can defy the court's order. Willful would exclude casual, accidental, bona fide or unintentional acts or genuine inability to comply with the terms of the order. A petitioner who complains breach of the court's order must allege deliberate or contumacious disobedience of the court's order.
The respondents have a right to avail their legal remedies i.e. right of appeal. But they have no right to abuse the process of law by filing objections one after another with the object to delay the implementation and compliance of court's orders. Though the earlier objections filed by the respondents have been dismissed, but the respondents choose to file another set of objections merely because one Mal Singh has filed a suit for injunction. As mentioned above, Mal Singh is none else, but a person projected by the respondents for the reasons mentioned above. Before this Court as well, the respondents were given an option to comply with the order, but the conduct is that one of resistance. Such conduct of the respondents' show that the respondents have little respect for law and intend to abuse the process of law to such extent and in such a manner, the respondents can do.
COCP No.2138 of 2010 10
The execution of a decree or for that matter an ejectment order is becoming more and more cumbersome as the parties take recourse to the dileactory tactics and in some time the Courts become unwilling tool in the hands of such litigants. The habit of litigants is to delay the process of delivery of possession on false and made up grounds. The present is one of such classic case. Therefore, to instill confidence into the mind of the litigant public that orders are not passed, but are capable of being implementation and that process of the Court cannot be abused, is required to be known. Therefore, it is a case where the respondents have made themselves liable for punishment for violation of eviction orders passed under the Act.
The Hon'ble Supreme Court has considered the scope and purport of the Contempt proceedings in J. Vasudevan v. T.R. Dhananjaya, (1995) 6 SCC 249 and held to the following effect:
14. .....while awarding sentence on a contemner the Court does so to uphold the majesty of law, and not with any idea of vindicating the prestige of the Court or to uphold its dignity. It is really to see that unflinching faith of the people in the courts remains intact. But, if the order of even the highest Court of the land is allowed to be willfully disobeyed and a person found guilty of contempt is let off by remitting sentence on plea of mercy, that would send wrong signals to everybody in the country. It has been a sad experience that due regard is not always shown even to the order of the highest Court of the country. Now, if such orders are disobeyed, the effect would be that people would lose faith in the system of administration of justice and would desist from approaching the Court, by spending time, money and energy to fight their legal battle. If in such a situation mercy is shown, the effect would be that people would not knock the door of the courts to seek justice, but would settle score on the streets, where muscle power and COCP No.2138 of 2010 11 money power would win, and the weak and the meek would suffer. That would be a death-knell to the rule of law and social justice would receive a fatal blow. This Court cannot be a party to it and, harsh though it may look, it is duty-bound to award proper punishment to uphold the rule of law, how so high a person may be.
The judgment referred to by the learned counsel in R.N.Deh's case (supra) was considered in Rama Narang's case (supra), whereas other judgments have been considered in Santanu Chaudhuri's case (supra). The Hon'ble Supreme Court in Rama Narang's case (supra) has examined the provisions of Section 2(b) of the Act to return a finding that the civil contempt is in respect of the willful disobedience to the process of the Court and also undertaking furnished. Such distinction has not been noticed in other judgments. Therefore, the said judgments are not helpful to the respondents that willful disobedience to the process of the Court is not made out merely because the order or decree is executable. All the aforesaid judgments have laid down that the orders of the Court have to be given effect to and the Executing Court can be directed for delivery of vacant and peaceful possession of the property in dispute.
Therefore, the respondents are held guilty of the violation of the order passed by the learned Rent Controller under the Act, which order has been affirmed with the dismissal of Special Leave Petition.
In view of the Hon'ble Supreme Court judgment in Santanu Chaudhuri's case (supra), the learned Executing Court is also directed to ensure the delivery of possession to the petitioner within a period of two weeks and to submit a compliance report. The executing Court shall also submit report to this court as to why the effective steps for delivery of COCP No.2138 of 2010 12 possession were not taken to give effect to the orders of eviction before the next date of hearing.
List again on 14.1.2011.
17.12.2010 (HEMANT GUPTA) Vimal JUDGE COCP No.2138 of 2010 13 COCP No.2138 of 2010 Present:- Mr. Amit Jhanji, Advocate for the petitioner. Mr. K.S. Boparai, Advocate for the respondent. ****
Vide separate order of today, the respondent Surinder Pal Singh has been held guilty for wilful disobedience to the order of eviction.
I have heard Shri Surinder Pal Singh on the question of sentence and heard Shri Boparai as well.
He states that he has nothing else to state other than what has been stated in the written statement. Since it has been found that he has wilfully disobeyed the orders passed by the Court, he is sentenced to undergo imprisonment for a period of three months and to pay a fine of Rs.2,000/-. The respondent shall surrender before the Chief Judicial Magistrate, Ludhiana on or before 5.1.2011.
In the meantime, the respondent may avail his remedy of appeal.
December 17, 2010 ( HEMANT GUPTA) renu JUDGE