Delhi District Court
Shop No. 3 vs Sh. Naresh on 16 December, 2014
IN THE COURT OF SH. ARUN KUMAR: CIVIL JUDGE:
SOUTH WEST DISTRICT: DWARKA COURT: NEW DELHI
M No: 572/13
Unique case ID No: 02405C0181382013
IN THE MATTER OF
Sh. Jagmohan Singh,
S/o Sh. Sardar Ram Singh,
R/o WZ1/61, Uttam Nagar Terminal,
Hastal Road, New Delhi
Also at
Shop no. 3, Property no. 663,
Kakrola Housing Complex,
Khasra no. 20/1, Near MCD Office,
New Delhi 110078 ... Petitioner
Versus
Sh. Naresh,
S/o Sh. Thakur Dass Gogia,
R/o G1/499, First Floor, Dal Mil Road,
Uttam Nagar, New Delhi ... Contemnor
ORDER
1. By this order I will dispose off the application filed by the plaintiff under Order 39 Rule 2A read with Section 151 CPC M572/13 Jagmohan Singh Vs. Naresh Order dated 16.12.2014 Page no. 1 of 13 and under Section 12 of the Contempt of Court Act for initiation of contempt proceedings against the defendant in suit no. 572/2013. It is submitted by the applicant in the aforesaid application that he is the tenant under the defendant with respect to the shop no. 3 measuring 9 X 12 X 10 ft. in property no. 663, Kakrola Housing Complex, Palam Mor, Near MCD, New Delhi at the rent of Rs. 1500/ per month since January 2011 and on 15.06.2013, the defendant alongwith some other persons visited the aforesaid shop and threatened the plaintiff to vacate the suit property. Accordingly, in view of the aforesaid threat as well as the subsequent threats, applicant filed the suit for permanent injunction against the defendant praying for decree of permanent injunction restraining the defendant from forcibly dispossessing the plaintiff from the suit property and also from getting the shop vacated by use of force and without due process of law. The aforesaid suit was filed by the plaintiff on 22.06.2013 and interim stay order restraining the defendant M572/13 Jagmohan Singh Vs. Naresh Order dated 16.12.2014 Page no. 2 of 13 from dispossessing the plaintiff without following the due process of law was passed by Ld. Vacation Judge on 25.06.2013 and subsequently the defendant had given an undertaking before this court on 01.07.2013 that he will not dispossess the plaintiff from the suit property without following the due process of law. On the basis of the aforesaid undertaking, applicant/ plaintiff had withdrawn his suit on the same day. It is submitted by the applicant that immediately after the withdrawal of the aforesaid suit by the plaintiff, the defendant on 09.07.2013 had again come to the suit property and asked the applicant as to why he had filed the suit against him. According to the applicant, the defendant had further demanded the rent of the month of July 2013 and that the respondent refused to take Rs. 1500/ rent for the said month and directly threatened the applicant either to shut the shop with immediate effect or else he will get the shop vacated by calling his man. The plaintiff has accordingly filed the present application praying for initiation of contempt M572/13 Jagmohan Singh Vs. Naresh Order dated 16.12.2014 Page no. 3 of 13 proceedings against the defendant for violating the orders passed by this court.
2. Notice of the aforesaid application was issued to the respondent and a reply was filed by the respondent to the aforesaid contempt petition on 31.08.2013 wherein the respondent has denied all the allegations levelled by the applicant in the aforesaid application against him. According to the respondent, the aforesaid application moved on behalf of the plaintiff is pre mature in as much as the applicant is still in possession of the suit property. According to him, he had never visited the suit premises on 09.07.2013 and the present application has been filed by the applicant merely to restrain the respondent from looking after the suit property. The respondent has sought dismissal of the aforesaid application with exemplary cost.
3. Rejoinder to the aforesaid reply of the respondent was filed by the applicant on 11.03.2014 reiterating the averments made by the applicant in his application.
M572/13 Jagmohan Singh Vs. Naresh Order dated 16.12.2014 Page no. 4 of 13
4. Thereafter the matter was fixed for arguments on the aforesaid application. In the meantime on 27.09.2014, the applicant has filed the transcript of conversation dated 09.07.2013 allegedly recorded by the brother of the applicant and typed copy of the aforesaid transcript alongwith CD has been placed on record by the applicant today in the court. It is submitted by counsel for applicant that even though the respondent has not been able to dispossess the applicant from the suit property still by interfering with the peaceful possession of the applicant, he has violated the orders of this court and as such he is liable to be prosecuted for contempt of the court.
5. On the other hand, it is submitted by the counsel for the respondent that the present application moved on behalf of the applicant/ plaintiff is not maintainable in as much as the applicant has not been able to prove on record that any order of this court has been violated by the respondent. He submits that admittedly the applicant is in possession of the suit property M572/13 Jagmohan Singh Vs. Naresh Order dated 16.12.2014 Page no. 5 of 13 and as such the application moved on behalf of the applicant is premature and is liable to be dismissed with heavy cost. According to him the applicant has further failed to substantiate any of the pleas taken by him in his application during his statement recorded by this court today under Order 10 CPC. He further submits that copy of alleged transcript as well as the CD placed on record by the applicant are not admissible in the absence of any certificate under Section 65 B of the Evidence Act and the same cannot be looked into by this court in view of the judgment of Hon'ble Supreme Court in Anvar P.V. Vs. P.K. Basheer 2014 (10) Scale 660. He has also relied upon the judgment passed by Hon'ble Supreme Court in Chhotu Ram Vs. Urvashi Gulati & Anr. in (2001) 7 Supreme Court Cases 530 in support of his plea that the contempt proceedings being the proceedings of quasi criminal nature, the standard of proof required for the same is that of criminal proceedings and the M572/13 Jagmohan Singh Vs. Naresh Order dated 16.12.2014 Page no. 6 of 13 breach shall have to be established beyond all reasonable doubts. He submits that the applicant has failed to even prima facie prove that the respondent has violated any order of this court or has committed breach of his undertaking. On the contrary, according to him, admittedly the applicant is in possession of the suit property till today despite the fact that a decree of possession of the suit property has already been passed by another court during September 2014 in a suit filed by the respondent in January 2014. It is submitted by the counsel for applicant that the aforesaid order of recovery of possession has not attained finality since the same has been challenged by the applicant in appeal, however, admittedly there is no stay on the operation of the aforesaid decree from the Appellate Court and according to counsel for respondent an execution petition has already been filed by the respondent against the applicant herein wherein warrants of possession of the suit property have already been issued by the court for M572/13 Jagmohan Singh Vs. Naresh Order dated 16.12.2014 Page no. 7 of 13 22.12.2014. Learned counsel for respondent has also relied upon the judgment passed by Hon'ble Supreme Court in All India Anna Dravida Munnetra Kazhagam Vs. L.K. Tripathi (2009) 5 Supreme Court Cases 417 in support of his submission that in contempt proceedings based on verbal threat, the applicant is required to lead the primary evidence of the aforesaid threat and the transcript of the alleged conversation sought to be placed on record by the applicant is not the primary evidence in as much has it has been admitted by the applicant as well as his brother during their examination under Order 10 CPC that they will not be able to produce the mobile phone wherein the alleged conversation was recorded by the brother of the applicant.
6. I have heard the submissions made on behalf of the parties and have perused the record. In my considered opinion, for applicability of provisions of Order 39 Rule 2A CPC it was incumbent upon the applicant to prove the violation of any order passed by this court. Perusal of the file shows that the M572/13 Jagmohan Singh Vs. Naresh Order dated 16.12.2014 Page no. 8 of 13 suit was disposed off by Ld. Predecessor of this court vide order dated 01.07.2013 upon the undertaking given by the defendant to the effect that he will not dispossess the plaintiff from the suit property without following the due process of law. With the disposal of the suit in terms of the aforesaid undertaking, on the statement of the plaintiff, the earlier order dated 25.06.2013 ceased to have any effect and since on 01.07.2013 no order was passed by Ld. Predecessor of this court restraining the defendant from dispossessing the plaintiff from the suit property, the applicant cannot allege the violation of any such order. In the absence of violation of any order passed by this court, no proceedings under Order 39 Rule 2 A CPC lies against the respondent.
7. Even otherwise, Order 39 Rule 2 A CPC is applicable only in case where an interim order passed by any court is violated by any person. As has already been observed herein above the interim order dated 25.06.2013 had already ceased to have any M572/13 Jagmohan Singh Vs. Naresh Order dated 16.12.2014 Page no. 9 of 13 effect as on the date of alleged threat of dispossession by the respondent on 09.07.2013.
8. Moreover, even if it is assumed for the sake of arguments that the defendant had verbally threatened the plaintiff to dispossess him from the suit property, since the plaintiff has not been dispossessed by the defendant till today, the application under Order 39 Rule 2 A CPC is pre mature particularly in view of the settled legal position that the only purpose of proceedings under Order 39 Rule 2A CPC is to secure compliance of the interim order passed by the court and the purpose of the aforesaid proceedings is not to penalize the person who disobey the aforesaid order.
9. In view of the aforesaid discussion, the application moved on behalf of the applicant under Order 39 Rule 2A CPC is not maintainable.
10. Now coming to the second aspect i.e. the prosecution of the respondent under Section 12 of the Contempt of the Court Act.
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A bare perusal of the aforesaid provision would show that this court has no jurisdiction to punish anybody for its own contempt and the jurisdiction to punish the contemnor for contempt of this court vests with the Hon'ble High Court of Delhi and as such the application under Section 12 of Contempt of Court Act filed by the applicant before this court is not maintainable.
11. Even otherwise on merits also, in my considered opinion, if we look into the undertaking given by the respondent before Ld. Predecessor of this court on 01.07.2013, the same was to the effect that the respondent will not dispossess the plaintiff from the suit property without following due process of law. Admittedly, the applicant is in possession of the suit property till today and as such there is no breach of undertaking given by the respondent to this court and hence the application moved on behalf of the applicant/ plaintiff for prosecution of the defendant under Section 12 of the Contempt of Court is not M572/13 Jagmohan Singh Vs. Naresh Order dated 16.12.2014 Page no. 11 of 13 maintainable.
12.Moreover, the entire cause of action for filing of the present application by the applicant has been narrated in para no. 8 of the application. A bare perusal of the statement of the applicant as well as his brother recorded by this court today under Order 10 CPC as well as the alleged transcript of conversation held between the parties allegedly on 09.07.2013 shows that the applicant has failed to substantiate any of the allegations levelled by him in para no. 8 of his application. Rather both the applicant as well as his brother have deposed contrary to the averments made in the aforesaid para. As such the application of the plaintiff in Suit no. 572/12 is also without any cause of action and the same is accordingly liable to be dismissed.
13. Admittedly the transcript of conversation and CD are not primary evidence in as much as the alleged conversation was admittedly recorded by brother of the applicant in a mobile phone. The brother of the applicant as well as the applicant M572/13 Jagmohan Singh Vs. Naresh Order dated 16.12.2014 Page no. 12 of 13 himself have failed to identify the aforesaid mobile device and as such they are unable to produce the same. The aforesaid CD and transcript is even otherwise not admissible since the same are not supported by any certificate under Section 65 B of the Evidence Act.
14. In view of the aforesaid discussions, in my considered opinion, the applicant has failed to prove even prima facie the breach of undertaking on the part of the defendant much less he has been able to prove the same beyond reasonable doubt as per the requirement of law. The application of the applicant/ plaintiff under Order 39 Rule 2A read with Section 151 CPC and Section 12 of the Contempt of Court Act is accordingly dismissed.
15. Ordered accordingly.
Announced in the open court on this 16th day of December, 2014 This order consists of thirteen signed pages.
(Arun Kumar) Civil Judge(SW)/Dwarka Courts New Delhi/16.12.2014 M572/13 Jagmohan Singh Vs. Naresh Order dated 16.12.2014 Page no. 13 of 13