Bombay High Court
Samalochan Ekta Co.Op. Housing ... vs Moreshwar Natthuji Mohture And Others on 1 September, 2021
Author: S.M. Modak
Bench: S. M. Modak
Order 13 cp 107-2020
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CONTEMPT PETITION NO.107/2020
Samalochan Ekta Co.op Housing Society
-VERSUS-
Moreshwar Mohture and others.
Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders
or directions and Registrar's orders.
Shri Arjun Bobde, Advocate for petitioner.
Shri R.S. Gupta, Advocate for respondent nos. 1 to 3 and 5.
Shri M.S. Gupta, Advocate with Shri A.J. Thakkar,
Advocate for respondent no.6.
CORAM : S.M. MODAK, J.
DATE : SEPTEMBER 01, 2021.
As observed in the order dated 26/08/2021, today I have heard learned Advocate Shri Thakkar for respondent no.6 and learned Advocate Shri Bobde for the petitioner.
Learned Advocate Shri Thakkar made two fold submissions. One is, Rules framed as per the Article 215 of the Constitution of India and Contempt of Courts Act, 1971 does not contemplate framing of the charge. Alternatively, he made a submission that if at all formal charge is to be framed, then the provisions of Section 227 of Code of Criminal Procedure needs to be followed. According to him, the respondent no.6 needs to be given an opportunity.
He emphasized on the observations made by this Court and more specifically in paragraph no.18 of the order dated 18/12/2020. He wants to emphasize on the observations which say about adducing concrete evidence by ::: Uploaded on - 02/09/2021 ::: Downloaded on - 03/09/2021 03:46:53 ::: Order 13 cp 107-2020 2 the petitioner or respondent no.6 disproving creation of interest. According to him, in view of these observations unless and until the petitioner gives concrete evidence, there is no question of framing of charge against the respondent no.6. He relied upon a judgment in the case of Snehlata Shrinivas Dashrthe Vs. Nutan Bahuuddeshiya Vidyalaya and another reported in 2010(3) Mh.L.J. 803 and he read over paragraph no.10 of that judgment.
As against this, learned Advocate Shri Bobde submitted that as per the order dated 18/12/2020, this Court has already directed to issue notice under Rule 9 of the Rules and in fact the notice in the Form-I appended to the rules has been issued and the respondent no.6 has also filed an affidavit wherein she has acknowledged about receipt of notice. He strongly opposed the submission about giving of opportunity of hearing after applying the provisions of Section 227 of the Code of Criminal Procedure.
This Court does not feel that now there is necessity to give an opportunity of hearing to respondents. The petitioner and respondent no.6 were granted liberty to adduce evidence in further hearing of the case. These are the wordings in paragraph no.18. So notice was directed to be issued in Form-I only when prima facie opinion about violation of the order has been arrived at. So whatever the respondent wants to say she can say after she has been explained about charge.
It will be material to consider the background in which this Court has decided the case of Snehalata Vs. Nutan ::: Uploaded on - 02/09/2021 ::: Downloaded on - 03/09/2021 03:46:53 ::: Order 13 cp 107-2020 3 (supra). From the detail order passed on 17/11/2009, it was clear that the respondent was put to notice about the charges which the contemnor has to face. There was an argument that draft charges need to be filed. It was turned down by this Court. It has been observed, "the object of framing of charge is to convey the contemnor the exact case which she is required to meet. It is not the form of charge which is material but it is substance of charge which is material if substance of charge is made clear to the contemnor either in the contempt petition or by passing an order then this is in compliance of providing opportunity to the contemnor".
So there is no need to give one more opportunity to the respondent no.6. Though the provisions of Code of Criminal Procedure are not applicable, this Court has to inform to the respondent what charge she has to face, that can be by passing of order. Hence, this Court puts respondent no.6 to notice that by execution of Power of Attorney in favour of one Rakesh Kale on 27/01/2020 and by publication of notice in local newspaper dated 10/03/2020, she has violated the order passed on 02/01/2020 in R.C.S. No.692/2014. The charge is also explained to the respondent no.6 in Hindi. She said that she has not committed any violation.
The learned Advocate for the petitioner submitted that already they have filed affidavits and documents and now they do not want to file any new affidavits or documents. Learned Advocate for the respondents submitted that respondent no.6 has already filed reply cum affidavit ::: Uploaded on - 02/09/2021 ::: Downloaded on - 03/09/2021 03:46:53 ::: Order 13 cp 107-2020 4 dated 03/02/2021 and filed affidavit dated 26/07/2021 and after receipt of the notice and in view of that they do not want to file any more affidavits or documents. Learned Advocate for the petitioner submitted that the affidavit dated 26/07/2021 cannot be said to be an affidavit filed pursuant to the notice. This issue can be argued during final arguments.
In view of that matter be kept for final argument on 16/11/2021.
JUDGE R.S. Sahare ::: Uploaded on - 02/09/2021 ::: Downloaded on - 03/09/2021 03:46:53 :::