Bombay High Court
Ahmed R.V. Peermohamed vs Jogi S. Bhar And Others on 12 July, 1989
Equivalent citations: 1989(2)BOMCR592, 1990CRILJ2195, 1990(1)MHLJ126
ORDER
1. This is plaintiff's motion for action in contempt against defendant Nos. 5 to 23 as also the respondents who are the directors of defendant No. 5 Company.
2. Facts and circumstances, briefly narrated, are as follows :
At Wodehouse Road, Coloba, there was situated an immoveable property 'Marble Hall' owned by the plaintiff and occupied by his tenants. The plaintiff instituted suits for possession inter alia under Section 13(1)(hh) of the Rent Act against his tenants on the ground that he desires to demolish the said property and put up in its place a new building. The plaintiff undertook to give to his tenants premises in the new construction to be put up in place of the old building 'Marble Hall'. On 18th November, 1978, the plaintiff entered into an agreement of sale his aforesaid property with defendant No. 4, a partnership firm with defendant Nos. 1 to 3 as partners thereof, for a consideration of rupees twenty five lacs and subject to the rights of the tenants. The purchasers commenced construction of a new building 'President House'. They also entered into agreements with defendant Nos. 5 to 23 who agreed to purchase flats in the new building. However, in or about 1982 the construction stopped with the builders setting up difficulties in the way of completing the same. Ultimately, in March 1983, an agreement was entered into between the flat owners and the builders under which the flat owners agreed to bring in additional funds required to complete the building. Even so, however, the construction could not be completed because in the meanwhile, the plaintiff terminated the 1978 agreement and filed in this Court Suit No. 595 of 1983 inter alia for liquidated damages, interests and other financial claims.
3. The flat owners got themselves impleaded as party defendant Nos. 5 to 23 to this suit. After protracted negotiations, consent terms were arrived at and decree in accordance therewith was passed. Pursuant thereto, the flat owners became the absolute owners of the suit property; they were put in possession thereof accordingly; the consent decree was to operate as conveyance; the rights on the former tenants were duly protected; the plaintiff handed over to defendant No. 5 on behalf of defendant Nos. 6 to 23 all the original title deeds, documents and writings relating to the suit property; the plaintiff was paid the full balance of the construction of rupees twenty five lacs; in addition he was paid by defendant Nos. 5 to 23 rupees six lacs as damages; these defendants also made a further payment of rupees seven lacs to defendant Nos. 2, 3 and 4. In due course, the building 'President House' was completed. Completion as also occupation certificates (save and except the second floor) were also obtained. However, just when at long last after several years of waiting and litigation, defendants Nos. 5 to 23 were about to enter into actual possession, the plaintiff took out this motion for contempt.
4. (a) In support, Mr. Kapadia for the plaintiff relied at the outset on clause 8 of the consent decree under which the plaintiff is to be provided the second floor and six garages in the President House as also three flats (one of 700 square feet and two of 500 square feet each) in a similar building or in President House. These, however, as submitted by Mr. Rafiq Dada for the defendants, were to be given to the plaintiff (vide clause 10 of the consent decree) in discharge of the obligation under term No. 2 of the agreement in the suit viz., to provide accommodation to the former tenants for which the defendants have all along been ready and willing.
(b) Mr. Kapadia further contended that if defendant Nos. 5 to 23 occupy their own respective flats without complying with clause 8, they would be guilty of contempt. This is emphatically denied need by Mr. Rafiq Dada for the defendants. He submitted that the consent decree categorically declares these defendants to be the full and absolute owners of the property and in possession thereof in their own right. The plaintiff has even handed over to them all the original title deeds and documents. What is more, these defendants are held absolutely entitled to the flats specifically mentioned against their names in clause 25 of the decree.
(c) Mr. Kapadia next referred to clause 24 of the consent decree, submission being that non-compliance thereof amounts to contempt. In reply, Mr. Rafiq Dada invited my attention to clause 30 of the consent decree which in express terms states that -
"Plaintiff is not concerned with term Nos. 20, 21, 23, 24, 25 and 27 hereinabove."
5. Hearing in extenso rival submissions of the respective Counsel and going though the affidavits, I find no merit in these rather extraordinary proceedings for action contempt.
6. It may at the outset be stated that the consent decree does not contain any undertaking either to the Court or to the plaintiff. Much less, therefore any acceptance of a undertaking. The question of breach of an undertaking inviting contempt proceedings, therefore, does not arise in this case.
7. Turning to the consent decree itself, one searches in vain for any nexus with contempt. There is, at best and at the highest, difference between the parties on the correct construction and interpretation of certain clauses thereof. And that, strangely enough, is sought to be made the substratum of these contempt proceedings. Now, either party, only because it does not agree with or accept the rival interpretation of a decree, is, therefore, surely enough not guilty of contempt. As judicial experience demonstrates, rival versions and one or the other clauses of a consent decree, or for that matter, a decree in invitum, are not unknown. But that is a far cry from contempt Court will not permit execution, directly or indirectly, of a consent decree (which contains no undertaking) through the medium of a contempt proceeding. Such short circuiting of the normal process cannot be encouraged. Contempt jurisdiction is not to be invoked as an easy escape from the normal judicial route to justice. Nor is it a substitute or an alternative thereto. Expounding on this aspect, the Supreme Court in Babu Ram Gupta v. Sudhir Bhasin, observed at p. 1531 : (1979 Cri LJ 952 at p. 956) -
"With due respects, we are unable to agree with this view (viz., taking the consent order to as if includes an undertaking) taken by the High Court. A few examples would show how unsustainable in law the view taken by the High, Court is. Take the instance of a suit where the defendant agrees that a decree for Rs. 10,000/- merely is passed against him and the Court accordingly passes the decree. The defendant does not pay the decretal amount. Can it be said in these circumstances that merely because the defendant his failed to pay the decretal amount, he is guilty of contempt of Court ? The answer must necessarily be in the negative. Take another instance where a compromise is arrived at between the parties and a particular property having been allotted to A, he has to be put in possession thereof by B. B does not give possession of the property to A. Can it be said that because the compromise decree has not been implemented by B, he commits the offence of contempt of Court ? Here also the answer must be in the negative and the remedy of A would be not to pray for drawing up proceedings for contempt of court against but to approach the executing court for directing a arrant of delivery of possession under the provisions of the Code of Civil Procedure. Indeed, if we were to hold that non-compliance of a compromise decree or consent order amounts to contempt of court, the provisions of the Code of Civil Procedure relating to execution of decrees may not be resorted to at all."
8. Well settled also is the field and spectrum of civil contempt-wilful disobedience to judgment, decree, etc. or wilful Breach of undertaking to Court. As already noted, there is here no undertaking at all. Nor is there, any wilful disregard or disobedience of the consent decree. Wilfulness is of the essence, a sine qua non for a valid charge of civil contempt. The defendants' action is far removed from even a taint of any wilful disobedience. Indeed, while the, plaintiff seems to have virtually abandoned the interests of his former tenants the defendants have been more than reasonable in helping to resolve the dispute between the plaintiff and his tenants. In fact, from what was conveyed to the Court across the Bar, the claims of some of this tenants of the plaintiff have been settled by the defendants. And, what is more, there was also willingness to settle the claims of the plaintiff's remaining tenants. Indeed, in the course of these proceedings it became obvious that the tenants had lost confidence in their former landlord, the plaintiff, and had since turned to the defendants in quest of relief. Mr. Dwarkadas appearing for one of the former tenants invited my attention to paragraphs 4 and 8 of the plaintiff's affidavit in reply in Chamber Summons No. 602 of 1989 to indicate the unfortunate attitude of the plaintiff. Mr. Chagla appearing for an intervener one Hadi Kisilbash, the heir of yet another tenant, invited my attention to the affidavit of the said Kisilbash in which the history of the litigation between the mother of the said Kisilbash and the plaintiff has been set out, indicating inter alia the agreed terms, the undertakings of the plaintiff and the contempt proceedings against him. The emerging scenario indicates this to be a classic case of a contemner (the plaintiff) himself suing for contempt.
9. In the end, it may, albeit in passing, be observed that extraneous considerations seem to be predominantly motivating the plaintiff. Far from any anxiety to preserve the sanctity of the Court or the majesty of the law, the plaintiff appears to have an axe to grind and score to settle against his former tenants and/or the defendants. And to that end primarily this motion appears to be sub silentio directed. Having secured his own monetry benefits and having left his former tenants in the lurch, as it were, for years on end, he is now out to delay, if not defeat, the ultimate fruition of the consent decree by defendant Nos. 5 to 23. His instant motion fails to carry conviction. It also reflects a misconceived remedy. And, more still, it lacks bon fides.
10. In all the circumstances, the motion fails and the same is dismissed leaving the parties to bear their own respective costs.
11. Application dismissed.