Delhi District Court
Mam Chand S/O Late Mool Chand vs Sonu @ Daljeet Singh S/O Bachan Singh on 21 November, 2011
IN THE COURT OF SH. RAJ KAPOOR,
ADDITIONAL SESSIONS JUDGE (WEST02) , THC DELHI.
Criminal Appeal No. 114/4/10
IN THE MATTER OF :
Mam Chand s/o Late Mool Chand
R/o H. No.M311, Ragubir Nagar,
New Delhi.
..............Appellant
Versus
1. Sonu @ Daljeet Singh s/o Bachan Singh
R/o D387, Tagore Garden Extn.
New Delhi 27.
Also at: D383, Tagore Garden Extn.
New Delhi 27
2. Sanju @ Sanjin
R/o D387, Tagore Garden Extn.
New Delhi 27.
3. Sh. Rinku @ Avinash @ Babaon,
R/o D387, Tagore Garden Extn.
New Delhi 27.
................Defendants/ Contemners
21.11.2011
ORDER
1. This appeal petition has been assailed against the order dated 08.11.2010 passed by ld. SCJ/RC (West) (hereafter referred as 1 / 15 impugned order) whereby ld. trial court has dismissed the Contempt Petition filed by the appellant.
2. Briefly the factual matrix of the case is that a suit for permanent injunction was filed before ld. trial court. Ld. trial court issued summons to the defendants. Defendants filed their WS and ld. trial court order that Appellant is at liberty to file replication thereto. Parties were directed to appear before ld. court on 08.11.2010 to file their respective original documents after exchanging the copies thereof. On 08.11.2010 defence of the defendants were struck off since defendants did not file WS within 4 weeks and no plausible reason has been mentioned for not filing WS within 4 weeks as directed.
3. On the same day i.e. on 08.11.2010 Appellant had moved a Contempt Petition u/s 1, 2, 3 and 12 of Contempt of Court Act before ld. trial court. In the said application appellant stated that on 05.05.2010 when he reached the suit premises he found his lock broken and goods stolen from there and a prima facie case of forcible dispossession is 2 / 15 made out therefore, directions should be given to the police to remove the lock and protect the appellant through police. Before ld. trial court appellant also relied upon judgment passed in his favour by Sh. K S Paul,the then Ld. SubJudge, Delhi against one Jagat Singh who was restrained from selling, alienating or transferring the suit premises to some third person. He has also relied upon the judgment '1988 RLR (SC) 267, AIR 1968 SC 1513 and AIR 2004 Calcutta 114'.
4. Ld. trial court after perusing the case file dismissed the Contempt petition on 08.11.2010 observing that:
"I have heard the submissions. Present is a suit seeking a restraint order against the defendants not to dispossess the plaintiff (now appellant) from the suit premises without due process of law. In the WS of defendant no.1 possession of the plaintiff has been disputed and plaintiff in support of his case, except of the judgment of Sh. K S Paul in 1984 has not annexed a single document to show that on the date of filing, plaintiff is in possession of the suit premises. Further, no interim order of any nature has been passed in this suit till date. The judgments relied upon by the plaintiff are not applicable to the facts and circumstances of this case. The contempt application, therefore, is devoid of merits and is dismissed without any notice to the contemners."
5. Feeling aggrieved with the impugned order dt. 08.11.2010 ld. counsel filed this appeal petition on the grounds that he moved a criminal 3 / 15 contempt against the respondents consequent upon the impugned order / judgment passed by Sh. Amit Kumar, Sr. Civil Judge, vide judgment dated 08.11.2010. Ld. counsel again submitted that ld. trial court has dismissed the contempt petition on the same day along with the suit, impacts the fair trial of the case. In support his contentions ld. trial court has relied upon the following citations:
1. Pratap Singh & Anr. Vs Gurbakh Singh - AIR 1952, Supreme Court 1172 wherein it has been observed that : "that any conduct which interferes with or prejudices parties litigant during the litigation amounts to contempt of Court. The question is not whether the action in fact interfered with but whether it had a tendency to interfere with the due course of justice. There was no doubt that the proceedings initiated in the present case by the appellants on the basis of the circular letter had only one tendency, namely, to coerce the respondent to withdraw the pending suit or not to press it. The appellants must be held guilty of contempt of court, and it would be no defence to say that they were merely carrying out executive directions contained in the circular letter. The question at issue was not whether the circular letter was valid in the abstract, but whether the action taken against the respondent on the basis of the circular letter at a time when the suit was pending amounted to interference with the due course of justice."
2. Punjab National Bank Vs Delite Properties Pvt. Ltd. AIR 2004 Calcutta 114, it has been held that :
37. Ignorance of the order of status quo of the third parties is of no defence to remain in possession and/or occupation, where the original transferee was restrained from parting with possession. From the documents annexed to the affidavit of objectors, which are almost identical in nature, I find every body has traced his right of occupation from the defendant No. 1 and, as rightly argued by Mr. H.K. Mitra, in the agreement itself it appears that all the occupants had and have specific knowledge of pendency of the suit. Had it been a case of bona fide transaction of taking possession then each of them should have carried out 4 / 15 searches and enquiries into the records of this case as to whether any prohibitory order of injunction in any form was there or not. There is no such whisper that such searches were made. It is stated in the affidavit that large number of agreements were entered into between the numbers of intermediaries, however, such agreements have not been disclosed nor filed. In absence of such agreements 1 think the other so called intermediaries are imaginary and/or fictitious,
38. I find considerable force in the arguments of Mr. H.K. Mitra that with the order of injunction/status quo the intention of the Court was to prevent transfer of any portion of the suit premises. The transfer has been effected in favour of the present occupiers after the orders of status quo and injunction are passed and are therefore in derogation and violation of the said orders too. As such no right could lawfully be nor indeed was created in favour of the third party occupants in breach of the order of status quo. In support of my observation I find the decision of the Supreme Court rendered in case of Krishna Kumar Khemka v. Grindlays Bank PLC, .
39. It is argued by Mr. Sarkar that order of status quo passed by Justice Sen was not in force and the same has merged with the order of Justice Mrs. Pal since affirmed by Appeal Court. I do not find any substance in this submission as it is clear from order of Justice Mrs. Pal the Receiver was directed to see that earlier order of status quo by Justice Sen is not breached. Moreover, the question of merger of the order of Justice Sen with the order of Justice Mrs. Pal did not and cannot arise, as the two orders were passed on two different applications as correctly pointed out by Mr. H. K. Mitra. Rather I find order of Justice Sen was approved by the Appeal Court presided over by Justice Umesh Chandra Banerjee (as His Lordship then was)
3. K.L. Virmani Vs IIIrd Additional Distt. Judge & os, AIR 1992 Allahabad 326, again it has been observed that: "9. After hearing the learned counsel for the parties at length, I am of the clear opinion that the petition is not to be decided on mere technical view. The justice is to be done between the parties. The suit was filed in 1982 and the injunction was granted in December the same year. The respondent No. 2 had been adopting delaying tactics by seeking adjournments by filing objections to the injunction application and thereby 5 / 15 has tried to take advantage of the intervening winter vacation and in the mean time got the strip of land filled with earth ........................... of land by the opposite parties. Thus, this is a clear case of defiance of the injunction order by creating perpetual obstructions in the flow of rain and flood water from the dominant tenament to flow through the servenient tenement. After considering the submissions of the learned counsel for the parties and examining the record, I am of the opinion that the wrong done has to be remedied and suitable direction be issued to undo the mischief by the respondent No.
3. The learned counsel for the opposite parties stated that this court is not competent to issue any writ of mandamus to a private individual. He relied on 1991 ARC 231 : AIR 1991 Ail 114), Ganga Saran v. Civil Judge, Hapur Ghaziabad. No doubt, the Full Bench case aforesaid of our court is of the settled view that a writ of mandamus is not to be issued against a private individual unless he is required to perform certain statutory function. The Court after arriving at the conclusion that the respondents have defied and disobeyed the order of injunction passed by the Civil Court and the application for action under O. 39, R. 2A was dismissed, 1 deem it proper and hereby direct that the judgment dated 1331987 and 571988 (Annexure 9 and 10 to the petition) passed by the lower courts are quashed.
10. The learned trial Court is directed to pass suitable orders on the application of the petitioner for taking action under O. 39, R. 2A, C.P.C. in the light of the observations made above. The learned court below may get the wrong committed by the respondent No. 3 undone by passing a direction to the respondents to affix the drain pipes connecting with the outlets through the strip of land so that the rain and flood waters which accumulate at the dominant owner's premises may pass through the drain pipes without damaging any part of the building of either of the parties. The pipe so directed to be affixed may be of the diameter of 5" inches. However, since the respondents have done the wrong, the respondent No. 3 shall have to bear the expenses for such affixation as directed above which affixation may be done within 6 months from the date of order passed by the court below. The Court below shall pass the final orders very expeditiously, if possible, within 2 months from the date of filing of the certified copy of this order."
6 / 154. Km. Rekha Mishra & Anr. Vs The Board of High School & Intermediate Examination through its Secy., AIR 1992 Allahabad 330, it has been observed that: "7. In its decision in the case of Km. Arti Srivastava v. Chancellor, University of Allahabad reported in (1989) 1 UPLBEC 79 : 1988 All LJ 1401, this Court had emphasized that a punishment based on a doubt cannot be sustained and must be set aside. It may further, be noticed that taking into consideration the ratio of the Division Bench decision of this Court in the case of Daya Shankar Dube v. Secretary. Board of High Schools and Intermediate Education, reported in 1982 UPLBEC 308, there could be no manner of doubt that an order imposing punishment such as is impugned in the present case, cannot be sustained as it has been passed on mere suspision rather than on the basis of any material on the record."
5. State of Maharashtra Vs Ramdas Shrinivas Nayak & Anr. Vs AIR 1982 Supreme Court 1249 , it has been observed that: "Sanction for the prosecution of the Chief Minister under Section 6 of the Prevention of Corruption Act Whether the Governor should act in his discretion or with the aid and advice of the Council of Ministers Constitution of India, 1950, Article 163.
Dismissing the Special Leave Petition, the Court, HELD: 1:1. Supreme Court is bound to accept the statement of the judges recorded in their judgment and, therefore, it cannot launch into an inquiry as to what transpired in the High Court. It is simply not done. Public policy bars such an action and judicial decorum restrains it."
6. S L Ahmed & Ors. Vs Union of India & Ors - AIR 1982, SC 1253, the following observation was made: "An identical scale of pay was being enjoyed by both Naiks and Radio operators Grade III (Naik) in the antral Reserve Police Force before the revision of scales of pay of Central Government employees with effect from January 1,1973 consequent upon the recommendations of the Third Pay Commission. However, Radio operators Grade III (Naik) were entitled to a special pay of Rs. 30. The Pay 7 / 15 Commission recommended the scale of pay of Rs. 225308 for the post of Naik but did not make any separate recommendation in respect of Radio operator Grade III (Naik).
The petitioners who were Radio operators Grade III (Naik) were initially paid a salary of Rs. 250 with a special pay of Rs. 30 from January 1,1973. They were subsequently placed in tho revised scale of pay of Rs. 225 308 given to Naiks with a special pay of Rs. 30 and the excess amount paid earlier was sought to be recovered from them.
The petitioners contended: (i) that they were entitled to the scale of pay of Rs. 260430 as that was the scale of pay prescribed for posts in other departments for which matriculation was the minimum qualification,
(ii) that their scale of pay could not be far below the scale of pay of Rs. 330480 prescribed for the next immediate senior post of Radio operator Grade II and
(iii) that they should be paid at par with comparable government employees on the civil side. In the alternative, the petitioners contended that they were entitled to the pay of Rs. 250 and the special pay of Rs. 30 paid to them before refixation of their salary. Dismissing the petition, HELD: 1. The minimum qualification prescribed for the post of Naik as on January 1,1973 was Middle School Examination and it had been raised to Matriculation Examination only from January 24, 1975. As Naiks and Radio operators Grade III (Naik) had been uniformly treated at par in the matter of that basic qualification, it was not open to the petitioners to base their claim with reference to a qualification which had not existed on January 1, 1973. "
7. AIR 1976 Supreme Court Rameshwar Vs. Jot Ram, in this case it has also been held that: "Section 18(1) of the Punjab Security of Land Tenures Act, 1953. lays down that, notwithstanding to the contrary contained in any law, usage or contract, a tenant of a land owner other then a small land owner shall be entitled to purchase from the landowner the land so held by him in the Case of a tenant falling within Cl. (i) or cl. (ii) at any time. and in the case of a tenant falling within Cl. (iii) within a period of one year from the date of commencement of this Act. Section 18(4)(a) provided that the 'tenant shall be competent to pay the purchase price either in a lump sum or in 8 / 15 sixmonthly instalments not exceeding ten in the manner prescribed. Clause (b) provided that, on the purchase price or the first instalment thereof, as the case may be, being deposited, the tenant shall be deemed to have become the owner of the land.
Teja, the landlord was a large landowner under whom there were three tenants. Each o them applied for purchase of ownership under section 18(1) of the Act. The Assistant Collector found them eligible, fixed the price and the instalments of payment, and they duly deposited the first instalment. After this Teja died. Before the Financial Commissioner, the appellants contended that on the death of Teja, they as the heirs of 'Teja, became entitled to shares and, in this process of fragmentation, they became small landowners within the meaning of section 2(2) of the Act and therefore the tenants will be disentitled to purchase the land. Their plea was that an appeal is a continuation of the original proceeding and, therefore is there is a change of circumstances in the landlord's ownership during the pendency of the appeal, resulting in his legal representatives becoming small landowners' the tenants will be disentitled to purchase the land. The appellants succeeded before the Financial Commissioner, but failed before the High Court. This appeal has been preferred on the basis of the special leave granted by this Court. Dismissing the appeals, HELD: (i) It is absolutely plain that on the deposit of the first instalment of the purchase price, the tenant shall be deemed to have become the owner of the land. In the present case, all these happenings had resulted in the respondents becoming the owners."
8. AIR 1991 Madras 323 - Vidya Charan Shukla Vs Tamil Nadu Olympic Association and Anr. it has been observed that:
46. We can see thus clearly that the Courts in India invariably accepted the law applied in England and found (1) a party to the suit if he had notice or knowledge of the order of the Court and (2) a third party or a stranger, if he had aided or abetted the violation with notice or knowledge of the order of injunction guilty of civil contempt and otherwise found a third party guilty of criminal contempt if he has been found knowingly obstructing implementation of 9 / 15 its order of direction, if it is found in the instant suit that Sri Shukla was directly or indirectly a party defendant in the suit and the order of the learned single Judge was directed to his conduct also and he violated the order after notice or knowledge, he shall be guilty of civil contempt. He can still be found guilty of civil contempt if he is found to have aided and abetted the violation of the order of the Court. Even otherwise it is found that he obstructed or attempted to obstruct the implementation of the Court's injunction/direction, he may be found guilty of criminal contempt provided he hadthe notice or the knowledge of the order of the Court. It will be only after a determination of the nature of the disobedience that it will be possible for the Court to say whether the procedure applied to a civil contempt shall be applied to the contempt proceeding in his case or the procedure applied to a criminal contempt will be applied to it. In the former case, the learned single Judge shall be competent to proceed. In the latter case, it shall be before a Division Bench and subject to such conditions as are envisaged under the Contempt of Courts Act, 1971. We have however no hesitation, in view of the principles of law noticed by us that this Court's power as the Court of Record will extend not only to the determination of the contempt but also the determination whether on the allegations brought before it, a civil contempt is made out or a criminal contempt is made out and instead of any action of committal for contempt, the Court should make any such order which would be in the administration of justice or not. We have already noticed that there are provisions in Order XXXIX Rule 2A of the Code of Civil Procedure as a remedy for the violation of temporary or interim injunction. Besides what is contemplated under Order XXXIX Rule 2A of the Code of Civil Procedure, Courts have found another source of power in Section 151 of the Code of Civil Procedure and if that is also ignored for a moment, this Court's 10 / 15 power as a Court of Record and a Court of Special jurisdiction is preserved under Articles 215 and 225 of the Constitution of India. There have been cases before several Courts in which when faced with situations that some order or direction was violated and the violation resulted in grave and serious injury, the Courts took the view that the Code of Civil Procedure is not exhaustive. There are cases which say that if remedy to do justice is not provided for in the Code or any other Act, the High Court must not fold its hands and allow injustice to be done."
9. AIR 1991 Madras 367 - M/s Hussain Lorry Booking Service Combatore and Ors. Vs A. Sirajuddin, in this case it has also been held that: "Further, Ex. A52, the letter written by the first respondentfirm to the petitioner and Exs. A55 and A56 notices sent by one of the partners of the first respondent to the petitioner go to show that the respondents have admitted that they arc Ihe tenants in respect of the land as well as the building under th, petitioner. In the counter filed by in the present proceedings the respondents have denied the petitioner's title to the superstructure in spite of the finding of the civil court in O.S. No. 518 of 1979 that the petitioner has title to the superstructure. However, the respondents have not let in any evidence to substantiate their case putforth in the counter that they constructed the building and that the building belong to them. In these circumstanecs, both the Rent Controller as well as the Appellate Authority found that the respondents' denial of the petitioner's title to the building is not bona fide. No doubt, the above findings of the Kent Controller and Ihe Appellate Authority were rendered for Coming to the conclusion that the petition for eviction filed by the petitioner against the respondents under the provisions of the Act is maintainable. However as pointed out by the Supreme Court in Majati Subbarao v. P. V. K. Krishna Rao, the denial of the title in the course of eviction proceedings constitutes a ground for eviction when it is proved that such denial is not bona fide. Therefore, the petitioner is entitled to art order if eviction in the present case on the ground that the respondents denied the title of the petitioner to the petition mentioned building in the 11 / 15 course of the eviction proceedings and such denial of the petitioner's title by the respondents is not bona fide. In these circumstances, the order of eviction passed by the Rent Controller and the Appellant Authority can be sustained though not on the ground that the petitioner's requirement of the petition mentioned building for demolition and reconstruction is fide but on the ground that the respondents in the course of the eviction proceedings denied the title of the petitioner to the superstructure of the petition mentioned premises and such denial is not bona fide.
9. In the result, the civil revision petition fails and is dismissed. No costs."
10.AIR 2010 Andhra Pradesh 163 - Profit Shoe Company Pvt. ltd.
Vs M. Krishna Reddy & Ors., it has also been observed that: "the Revision petitioner has admittedly come into possession of the schedule premises by virtue of a rental deed said to have been executed by the judgmentdebtors long after the initiation of the execution proceedings. Even assuming that the Revision petitioner was not aware of the decree in O.S.No.33 of 1985 and the pendency of E.P.No.50 of 1996, being a transferee pendente lite of the judgmentdebtors, the Revision petitioner has no right to resist the execution proceedings in view of the clear language contained in Order 21 Rule 102 of C.P.C. As held by the Supreme Court in SILVERLINE FORUM PRIVATE LIMITED'S case (5 supra), since it was admitted by the Revision petitioner that he was a transferee pendente lite of the judgmentdebtors, it was not necessary for the executing Court to determine the interest claimed by the Revision petitioner to continue in possession of the schedule premises.
For the aforesaid reasons, I am of the opinion that the Court below had rightly held that the Revision petitioner has no locus standi and the order under Revision rejecting the application made under Order 21 Rule 97 of C.P.C. does not suffer from any material irregularity in exercise of jurisdiction vested under law.
Accordingly, the Civil Revision Petition is dismissed. No costs."
12 / 1511.AIR 2010 Andhra Pradesh 166 - Smt. Sattamma & Ors. Vs Ch.
Bhikspati Goud @ Ch. Bhupal Goud & Ors., in this case it has been observed that: "23. In the case on hand, copy of the agreement of sale dated 05.02.1986 is attested by a Notary as Photostat copy of the original. Photostat copy of a document is admissible in evidence, provided it is certified as a true copy. Section 63(3) of the Act, 1872, prescribes two alternatives viz. first that it may be a copy made from the original, and or second that it must be a copy compared with the original. To term as 'copy', it must have support of the witnesses qualified to show that it represents the contents of the original document, and then the copies compared with the original are admissible as secondary evidence. If either of the two requirements are satisfied, then the document would be a proper and valid secondary evidence. In other words, the emphasis in Section 63 illustration(c) is that the copy produced should be one which is compared with the original, and there is proof thereof that it contains that which the original contains. Whether xerox attested copy of a document comes within the meaning of Section 63(3) of the Act, 1872, is a matter required to be decided and resolved after adducing evidence, but not at the stage of threshold. Prima facie, at this stage, the first respondent/plaintiff had taken a specific plea that the original has been lost and xerox copy of the agreement is attested copy of the original, and therefore he is seeking to receive the document as secondary evidence and permit him to prove the document as secondary evidence. The trial Court rightly observed that the Court is entitled to reject any document which is irrelevant and inadmissible, at any stage of the case. Since the document sought to be received as secondary evidence is the suit document, necessary requirements that are to be followed under law, are required to be proved beyond preponderance of probability. It can be done ordinarily after adducing evidence. The trial Court, after consideration of the entire material on record, rightly allowed the petition, and it has not committed any mistake or error of law in allowing the petition.
24. The Civil Revision Petition is devoid of merit and is, accordingly, dismissed. No costs."
13 / 1512.Punjab & Haryana High Court - Shakuntala Yadav Vs Yadvinder Singh - 1998 (2) PLJ 547, in this case it has been observed that: "if this was to be a case of exchange, which it was, it could be only done by a registered deed. Resort to a Court decree has resulted in violation of law of registration and being opposed to law is hit by section 23 of the Indian Contract Act." In Sardari Lal and Ors. v. Smt. Shakuntla Devi, (1961)63 P.L.R. 362 it was held that the title by sale cannot pass to the vendee in the absence of the execution and registration of the deed of sale. If Section 54 of the Transfer of Property Act is held applicable, there is no scope for importing the equitable doctrine of English law "that a contract for sale of real property makes the purchaser the owner in equity of the estate."
On the strength of the above citations, ld. counsel submitted that impugned order be set aside and prayed for restoration of the proceedings and necessary action against the respondents for committal of criminal contempt.
6. Contrary to it, ld. counsel for the respondent submitted that appellant is habitual to ulterior motive and number of properties have been grabbed by the appellant. Ld. counsel for the respondent again submitted that appellant was neither in possession nor having any right with regard to the property in question. Ld. counsel for the respondent 14 / 15 submitted that ld. trial court has rightly passed the impugned order by dismissing the contempt petition.
7. I have perused the case file and gone through the submissions of the appellant and counsel for the respondent. I have also perused the order dated 31.10.1984 of Sh. K S Paul,the then Ld. SubJudge, Delhi which has been passed against one Jagat Singh who was restrained from selling, alienating or transferring the suit premises to some third person. I have also gone through the impugned order of ld. SCJ(West) dated 08.11.2010. I have also gone through the citations relied upon by the appellant. The citations relied upon by the appellant are not applicable in the present case as the facts of this case and citations are entirely distinct. It is interesting to note that in the present petition Jagat Ram is not the party and that order was qua one Jagat Ram.
In light of these facts and circumstances this appeal of the appellant does not deserve any merit to succeed at this stage. Accordingly, appeal petition is dismissed. Trial Court record, if any, be sent back with a copy of the order. Appeal petition/ proceedings be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON THIS 21.11.2011 (RAJ KAPOOR) ADDITIONAL SESSIONS JUDGE (WEST02):THC DELHI 15 / 15