Bombay High Court
Sheikhah Fadiah Saad Al-Abdullah ... vs Sanjay Mishrimal Punamiya & Ors on 7 May, 2014
Author: Roshan Dalvi
Bench: Roshan Dalvi
(1) (908) NMS 313/14
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
Amk
NOTICE OF MOTION NO. 313 OF 2014
IN
SUIT NO. 175 OF 2014
Sheikhah Fadiah Saad Al-Abdullah Al-Sabah .. Applicant
In the matter between
Sheikhah Fadiah Saad Al-Abdullah Al-Sabah .. Plaintiff
Vs.
Sanjay Mishrimal Punamiya & Ors. .. Defendants
Mr. Janak Dwarkadas, Sr. Advocate, Mr. Sharan Jagtiani i/b Munir
Merchant & MZM Legal for the Plaintiff.
Mr. O. D. Kakde a/w. Mr. Nilesh C. Ojha for Defendant No.1.
Mr. Shailesh Shah, Sr. Advocate a/w. Mr. Ruchir Tolat i/b L. C. Tolat & Co.
for Defendant No.2.
Mr. Ashwin Shete i/b Jayakar & Partners (Seeking Discharge) for
Defendant No.1.
CORAM : MRS. ROSHAN DALVI, J.
DATE : 7 th
MAY, 2014.
ORAL ORDER
1. The plaintiff has given notice of this application to be moved before this Court for ad interim relief today. The notice has been served on 2nd May, 2014.
2. Soon after the notice was received by defendant No.1, an application/complaint came to be made by defendant No.1 against this Court to the Hon'ble President of India, Hon'ble Chief Justice of India, Hon'ble Chief Justice of this Court and Director, CBI, ACB, Mumbai. The complaint shows the address of defendant No.1 to be Flat No.21, 5 th Floor, ::: Downloaded on - 09/05/2014 23:52:45 ::: (2) (908) NMS 313/14 Al-Sabah Court, Building No.73, N. S. Marg, Marine Drive, Mumbai - 400
020. The complaint is dated 5th May, 2014 and is sent to the Hon'ble President of India and Hon'ble Chief Justice of India by speed post on 5 th may, 2014 itself. It has been personally submitted to the Hon'ble Chief Justice of this Court as also the Director of CBI on 5th May, 2014 itself.
3. The advocates for defendant No.1 sought discharge.
4. When this application was sought to be made by Mr. Dwarkadas on behalf of the plaintiff, one Advocate O. D. Kakde, who was instructed by another Advocate Nilesh C. Ojha, interrupted Mr. Dwarkadas to state to Court that a complaint has been made against this Court by defendant No.1 and hence this Court must recuse herself.
5. The Advocate for defendant No.1 tendered a copy of the complaint to Court which is dated 5 th May, 2014 and sent/received by the addressees on 5th May, 2014. It makes false, defamatory and contemptuous statements against the Court and two other officers of this Court.
6. The allegations and statements in the complaint show the complainant having been approached with an offer for corrupting the Court from his acquaintance since 11 th March, 2014. It shows how the complainant met that acquaintance on 12th March, 2014 and thereafter had meetings on various dates in the month of March with regard to his allegations of corruption. Despite these meetings and his case of corruption, the complainant never made any complaint until 5 th May, 2014 after he was served the notice of the plaintiff's application for ad interim relief on 2nd May, 2014.
::: Downloaded on - 09/05/2014 23:52:45 ::: (3) (908) NMS 313/147. The complaint/application shows two enclosures - one is copy of the plaint in this Court, the other is copy of "the call details amongst the applicant and some of the non applicants." The Court called upon Advocate Kakde to show Enclosure -2 to the complaint. He sought to search for the record. He stated that the copy of that enclosure is not with him and took instructions from defendant No.1 to state that it would be brought from his residence.
8. The Advocate has not filed any Vakalatnama. He has not obtained the NOC of the previous Advocates. He has made inappropriate allegations. The Court, therefore, directed a Police Officer to accompany the Advocate and/or defendant No.1 whilst they sought to obtain Enclosure-2 to the complaint and to report back to Court. They were directed not to leave the Court without the police officer. The Court detained them until they obtained Enclosure-2 to the complaint/application, which would be the only evidence, if any, to corroborate the allegations therein. The Court thus detained defendant No.1 and his Advocate under the provisions of the initial part of Section 345 of the Code of Criminal Procedure.
9. Counsel on behalf of the plaintiff made the necessary application which shall be considered presently. Whilst that was being made, Advocate Kakde on behalf of defendant No.1 tendered to Court a token of Vodafone being Token No. 94 dated today - 7 th May, 2014 - showing the time 12:32:21 p.m. being an application for obtaining a transcript of certain calls. The Advocate stated that the statement of call details shall be produced later. The Advocate tendered the receipt of Vodafone bearing Mobile No. 9820502288. The Advocate has also written two other mobile numbers on the token and on a chit given to the Court ::: Downloaded on - 09/05/2014 23:52:45 ::: (4) (908) NMS 313/14 along with token.
10. It is clear that what is stated to be annexed to the complaint/ application of defendant No.1 is non-existent and could not be produced upon the Court's query to show any corroboration of the statements in the application/complaint.
11. The Court saw that the application being made by the plaintiff is sought to be thwarted. The Court cannot be a privy to such abuse of process of law. The Court informed defendant No.1 and the Advocate, who has not filed any Vakalatnama, that the Court shall hear the application. Of course, the Court would also hear Advocate O. D. Kakde.
12. After hearing Mr. Dwarkadas on behalf of the plaintiff, the Court called upon Mr. Kakde to show cause. Mr. Kakde addressed the Court on merits which shall be considered presently. Before both the parties completed their arguments, Advocate Nilesh C. Ojha submitted a copy of another handwritten application/complaint dated 7th May, 2014 made to the Hon'ble Chief Justice of this Court and shown to be served upon Chamber No.51 today. To that application has been annexed two copies of orders dated 24th March, 2014 and 15th April, 2014 in Criminal Writ Petition No. 439 of 2014. Under both these orders the Division Benches have recused themselves. It was argued by Mr. Kakde that other Courts have recused themselves and hence this Court must also recuse herself when a complaint is made. He again applied that this Court recuse herself as the proceedings constitute contempt of this Court and this Court cannot hear the case on merits.
13. I may mention that the aforesaid conduct tantamounts to the ::: Downloaded on - 09/05/2014 23:52:45 ::: (5) (908) NMS 313/14 commission of the criminal offence under Section 228 of the Indian Penal Code which runs thus:
228. Intentional insult or interruption to public servant sitting in judicial proceeding.- Whoever intentionally offers any insult, or causes any interruption to any public servant, while such public servant is sitting in any stage of a judicial proceeding, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
14. It may be mentioned that Advocate Nilesh C. Ojha has made the defamatory complaint against a Division Bench of this Court in the aforesaid Writ Petition No. 439 of 2014 also and uploaded it on facebook.
He has called for a Press Conference on 22.03.2014. A download from the facebook shows his name with his mobile phone number. The respondent in the above Criminal Writ Petition No. 439 of 2014 is shown to have made the complaint against the Division Bench. The mobile number, residence telephone number, email ID and the residential address of the respondent in the above writ petition is also given.
15. Advocates for the plaintiff M/s. MZM Legal have tendered before the Court a copy of a similar application made by defendant No.1 to the Chief Metropolitan Magistrate, Esplanade, Mumbai titled Transfer Application No. 34/TA/2014 making allegations of corruption against the learned Metropolitan Magistrate before whom he was to appear upon a complaint of the plaintiff. It was before that Magistrate that defendant No.1 was called upon to appear upon the plaintiff's criminal complaint lodged against him.
16. It may be mentioned that defendant No.1 has made a complaint similarly against another authority. Advocate Nilesh C. Ojha has ::: Downloaded on - 09/05/2014 23:52:46 ::: (6) (908) NMS 313/14 also made a similar complaint against another Bench of this Court. Advocate Ojha seeks to rely upon the orders of the Division Benches of this Court recusing themselves as binding precedents in his favour. These are not.
17. This Court has present to its mind the order of the Hon'ble Supreme Court in the case of Subrata Roy Sahara Vs. Union of India & Ors. passed yesterday in Writ Petition (Criminal) No. 57 of 2014 by Justice Khehar on behalf of the Bench of Justices K. S. Radhakrishnan and J. S. Khehar in which the Supreme Court was also the recipient of a similar, nay more insidious, practice of the litigant and lawyers before it and in which they have strictured both of them for their deprecable Court conduct to maintain Court dignity and honour. It would be appropriate to cite their very words which, in profound prose, seem poetry. It should be the battery that should charge all of us in the justice system.
The words run thus:
7. Now the embarrassment part. Having gone through the pleadings of the writ petition we were satisfied, that nothing expressed therein could be assumed, as would humiliate or discomfort us by putting us to shame............. In our considered view, embarrassment would arise when the order assailed is actuated by personal and/or extraneous considerations, and the pleadings record such an accusation..................
8. It is, therefore, that we informed learned Senior counsel, that we would hear the matter. It seems that our determination to hear the matter marked to us by Hon'ble the Chief Justice, was not palatable to some of the learned counsel for the petitioner.
9. .............. Based on the submissions advanced by learned counsel, we could not persuade ourselves in accepting the prayer for recusal.
10. ........ In our understanding, the oath of our office, required us to go ahead with the hearing. And not to be overawed by such submissions. In our view, not hearing the matter, would constitute an act in breach of our oath of office, which mandates us to perform the duties of our office, to the best of our ability, without ::: Downloaded on - 09/05/2014 23:52:46 ::: (7) (908) NMS 313/14 fear or favour, affection or ill will. This is certainly not the first time, when solicitation for solicitation for recusal has been sought by learned counsel. Such a recorded peremptory prayer, was made by Mr. R. K. Anand, an eminent Senior Advocate, before the High Court of Delhi, seeking the recusal of Mr. Justice Manmohan Sarin from hearing his personal case. Mr. Justice Manmohan Sarin while declining the request made by Mr. R. K. Anand, observed as under:
"The path of recusal is very often a convenient and a soft option. This is especially so since a Judge really has no vested interest in doing a particular matter. However, the oath of office taken under Article 219 of the Constitution of India enjoins the Judge to duly and faithfully and to the best of his knowledge and judgment, perform the duties of office without fear or favour, affection or ill will while upholding the constitution and the laws. In a case, where unfounded and motivated allegations of bias are sought to be made with a view of forum hunting/Bench preference or brow-beating the Court, then, succumbing to such a pressure would tantamount to not fulfilling the oath of office."
The above determination of the High Court of Delhi was assailed before this Court in R. K. Anand v. Delhi High Court, (2009) 8 SCC 106. The determination of the High Court whereby Mr. Justice Manmohan Sarin declined to withdraw from the hearing of the case came to be upheld, with the following observations:
"The above passage, in our view, correctly sums up what should be the Court's response in the face of a request for recusal made with the intent to intimidate the court or to get better of an 'inconvenient' judge or to obfuscate the issues or to cause obstruction and delay the proceedings or in any other way frustrate or obstruct the course of justice."
11. In fact, the observations of the High Court of Delhi and those of this Court reflected, exactly how it felt, when learned counsel addressed the Court, at the commencement of the hearing. If it was learned counsel's posturing antics, aimed at bench- hunting or bench-hopping (or should we say, bench-avoiding), we would not allow that. Affronts, jibes and carefully and consciously planned snubs could not deter us, from discharging our onerous responsibility............
XI. Conclusions ::: Downloaded on - 09/05/2014 23:52:46 ::: (8) (908) NMS 313/14
145. In view of our findings recorded hereinabove, our conclusions are summarized hereunder:-
I. We find no merit in the contention advanced on behalf of the petitioner, that we should recuse ourselves from the hearing of this case. Calculated psychological offensives and mind games adopted to seek recusal of Judges, need to be strongly repulsed. We deprecate such tactics and commend a similar approach to other Courts, when they experience such behaviour. (For details, refer to paragraph nos. 1 to 14.) VIII. ......... Our recusal from the case sought on the ground of bias, has been found to be devoid of any merit. Each and every insinuation levelled by the petitioner and his learned Senior Counsel, during the course of hearing, has been considered and rejected on merits. (For details, refer to paragraph nos. 97 to
112).
147. .............One wonders, what is it, that a Judge should be made of, to deal with such litigants, who have nothing to lose. What is the level of merit, grit and composure required, to stand up to the pressures of today's litigants? What is it, that is needed to bear the affront, scorn and ridicule hurled at officers presiding over Courts? Surely one would need superhumans to handle the emerging pressures on the judicial system. The resultant duress is grueling. One would hope for support for officers presiding over Courts, from the legal fraternity, as also, from the superior judiciary upto the highest level. Then and only then, will it be possible to maintain equilibrium, essential to deal with complicated disputations, which arise for determination all the time, irrespective of the level and the stature, of the Court concerned. And also, to deal with such litigants.
18. The judgment and the message conveyed therein is, aside from being binding on all, worthy of being emulated across borders and it is, perhaps, fortuitous that it has come to be destined to be followed from the very next day of its pronouncement.
19. I must, as we all should, follow it in letter and spirit and repel forces that seek to destroy our justice system. I choose, also like the Delhi ::: Downloaded on - 09/05/2014 23:52:46 ::: (9) (908) NMS 313/14 High Court, to carry out the functions of my office for work assigned to me by the Hon'ble Chief Justice without being brow-beaten, bullied or subjugated and without surrender.
20. There are three suit premises in the building called Al-Sabah Court situated at 73/105, Marine Drive, Mumbai - 400 020 being (1) Flat No. 21 on the 5th floor admeasuring 7000 sq. ft. with a garage admeasuring 225 sq. ft., (2) a room on the ground floor admeasuring 270 sq. ft. and (3) a room adjacent to the terrace admeasuring 300 sq. ft. The suit building is stated to be owned by Sheikhah Abdullah who was the Shaikh of Kuwait. He expired on 24th November, 1965. His son Shaikh Saad Al-Abdullah Al-
Salem Al Sabah expired in 2008. The plaintiff is the daughter of Shaikh Saad Al-Abdullah Al Salem Al Sabah and claims title to the entire suit building Al Sabah Court.
21. The building is fully tenanted. There are various tenants including defendant No.1 who is the tenant of a flat on the first floor of the building. Defendant No.1 is stated to have trespassed upon the suit flat on the 5th floor of the building. The brother of defendant No.1 is a tenant and in possession of another flat on the 5th floor of the building Al Sabah Court.
22. The suit flat was in the possession and occupation of the constituted attorney of the plaintiff's father, one Faisal Essa Yousuf. The said Faisal had a kidney transplant surgery in Breach Candy Hospital in January-February, 2013. He was recuperating from the surgery in March- April, 2013. He left India for Kuwait to rest on 6 th May, 2013. The plaintiff has relied upon a copy of his passport.
23. Defendant No.1 claims to have been tenanted the suit flat ::: Downloaded on - 09/05/2014 23:52:46 ::: (10) (908) NMS 313/14 No.21 from Faisal. The tenancy agreement dated 30 th October, 2012 and the tenancy receipts are stated to be forged and fabricated. The tenancy agreement is neither notarized nor registered.
24. Defendant No.1 filed a suit for declaration of tenancy and made an application for standard rent therein with regard to the suit premises. The suit was filed against Shaikh Abdullah who had expired since 1965. The suit against a dead person is nullity. The writ of summons is shown to be served upon Faisal by personal service on 20 th February, 2013 through bailiff. The plaintiff claims not to have been served the summons. The suit has been decreed ex parte on 9 th May, 2013 soon after the service of summons.
25. The plaintiff has sought to show the circumstantial evidence to contend that the suit flat continued in the juridical possession of the plaintiff though the constituted attorney of the plaintiff's father, who lived there, left the premises for Kuwait in May, 2013.
26. The plaintiff claims that the legal advisor of the Royal Family of Kuwait one Fahad M. Al ajmi had visited India for inspecting the property of the plaintiff. The plaintiff relies upon his passport and visa in that behalf.
27. The plaintiff claims that a valuation report of the suit building came to be made at which time the suit premises was inspected and stated to be in possession of the owner though the other flats in the building are shown to be rented.
28. The plaintiff has relied upon the affidavit of neighbours to ::: Downloaded on - 09/05/2014 23:52:46 ::: (11) (908) NMS 313/14 show that the Faisal was caretaker and administrator of the suit building and accordingly used occupation of the flat until 6 th May, 2013 when he left for Kuwait.
29. The plaintiff claims that one INDECO was engaged by Fahad M. Alajmi for interior decoration of the suit premises. They submitted their quotation and invoice. They have submitted their letter along with copies of the plan for the refurbishment work on 10 th April, 2013 to Fahad M. Al ajmi.
30. The plaintiff has sought to rely upon the extract of the electric meters of the entire building. However, the electric meter for the suit flat No. 21 is not shown therein. The name of the brother of defendant No.1 is shown occupant of flat No.20 on the 5th floor of the building.
31. Defendant No.1 has produced two electricity bills in his name.
These are for Flat No.1 (not 21), Floor No.5 i.e. the suit premises. It shows Meter No. N910565 which meter number is not shown in the list of the plaintiff. The meter number of the brother of defendant No.1 is shown to be different in the list produced by the plaintiff. The plaintiff's bills are for the months of February, 2014 and March, 2014 only. These are well after the filing of the suit and after the decree obtained by the defendants in the Small Causes Court. Defendant No.1 claims to have paid those bills by cheque and has produced a copy of the bank statement of defendant No.1 in Citibank. However the bills are not shown to be of suit flat No.21.
32. Defendant No.1 has been present in Court. He has been put questions by the Court about the suit flat and his occupation, if any, therein to ascertain whether allegations of the plaintiff are admitted or denied by ::: Downloaded on - 09/05/2014 23:52:46 ::: (12) (908) NMS 313/14 him under the provisions of Order 10 Rule 1 of the CPC. He admits that the suit flat is undergoing renovation. He admits that his brother is in possession of another flat on the 5th floor of the building. He states that he has another premises on the 1 st floor of the building. He has stated to Court that the members of his joint family lived in these premises.
33. Defendant No.1 has more than one premises in the suit building for himself and his family members including Room No.20 on the 5th floor of the building as also another flat on the 1 st floor of the building.
The suit flat is being renovated. The suit flat requires to be protected against any further transfer, alienation and waste.
34. The two other premises which are small rooms on the ground floor and adjacent to the terrace are in the occupation of defendant Nos. 2 & 3. Defendant No.2 has made a statement that he shall not sell, alienate, encumber, transfer or create any third party rights therein and an order in that regard is required to be passed for the premises on the ground floor. A similar order would suffice for the premises adjacent to the terrace in the occupation of defendant No.3.
35. Mr. Dwarkadas prays for the appointment of Court Receiver in respect of suit flat No. 21 in view of the above facts.
36. Mr. Kakde appearing for defendant No.1 contends that the suit has been filed since December, 2013 and an application has not been made for urgent ad interim relief until now. He, therefore, applies for time to file affidavit-in-reply.
37. Mr. Dwarkadas on behalf of the plaintiff submits that the ::: Downloaded on - 09/05/2014 23:52:46 ::: (13) (908) NMS 313/14 application was not made because there was a controversy as to before which Court the application was required to be made as per the present assignment of Courts since the suit was lodged in December, 2013 but ultimately numbered in 2014. It was only after the controversy was resolved by the Hon'ble Chief Justice by an administrative order that such suits are assigned to this Court that this application is made. This controversy has been settled by the Administrative order of the Hon'ble Chief Justice dated 28.03.2014.
38. Mr. Dwarkadas would contend that mere delay in application would not be laches as the defendants have suffered no prejudice which is inherent in laches which would bar relief being granted. The fact remains that no application for urgent ad interim relief was made upon the filing of the plaint. The papers and proceedings were initially served on 7 th March, 2013. (That had propelled defendant No.1 to make allegations regarding what he did and got done to corrupt the Court, albeit unsuccessfully, from 11th March, 2014). There are no circumstances shown after the filing of the plaint which would demonstrate any new user of the premises except renovation of Flat No.21 which is in progress at present as alleged by the plaintiff and as admitted by defendant No.1 before the Court.
39. Consequently a case for appointment of Court Receiver or Court Commissioner or deposit of mesne profits is not made out. However a case for ad interim injunction is certainly made out. Defendant No.1 shall not sell, alienate, transfer, encumber or create any third party rights in respect of the suit flat No.21 on the 5 th floor of the building Al-Sabah Court pending the Notice of Motion. Defendant Nos.2 & 3 shall not sell, alienate, encumber or create any third party rights in the room on the ground floor or the room adjacent to the terrace in the building Al-Sabah ::: Downloaded on - 09/05/2014 23:52:46 ::: (14) (908) NMS 313/14 Court pending the Notice of Motion.
40. Defendant No.2 has raised the issue regarding the bar of inherent jurisdiction of this Court. That issue shall have to be tried as preliminary issue under Section 9A of the CPC. The issue is framed as follows:
Whether the Court's inherent jurisdiction is barred.
41. Parties shall be entitled to lead oral evidence upon the preliminary issue. Parties shall file their affidavit of evidence as also affidavit of documents, if any.
42. Suit is adjourned to 23rd June, 2014 at 3 p.m. for considering the admissibility of the documents of the parties on the preliminary issue.
43. The acts of defendant No.1 and his Advocate Nilesh Ojha (who has yet not filed his Vakalatnama) detailed above is seen to be both scandalous and defamatory. It constitutes contempt in the face of the Court. This is a fit case where action for having committed criminal contempt under the Contempt of Courts Act should be initiated against them. However, both defendant No.1 and Advocate Nilesh Ojha be first allowed to show course against the action in contempt.
44. Issue notice upon both defendant No.1, Sanjay Mishrimal Punamiya and Advocate Nilesh Ojha to show cause, if any, why action under the Law of Contempt of Courts should not be initiated against them.
(ROSHAN DALVI J.) ::: Downloaded on - 09/05/2014 23:52:46 :::