Delhi District Court
Smt. Prem Lata vs Sh. Ram Charan Aggarwal on 9 April, 2014
IN THE COURT OF MS. SUJATA KOHLI
ADDITIONAL DISTRICT JUDGE (WEST)
TIS HAZARI : DELHI
MCA No.:04/12
1. Smt. Prem Lata
W/o Sh. Ram Gopal
2. Sh. Ram Kishan
S/o Sh. Ram Gopal
Both R/o C7/7,
Model TownIII, Delhi09
.....Appellants
VERSUS
1. Sh. Ram Charan Aggarwal
S/o Late Sh. Ganeshi Lal
2. Sh. Ram Bhakt Aggarwal
S/o Sh. Ram Charan Aggarwal,
Both R/o 19, Neelam, 80,
Maren Drive,
Mumbai400002
Also at:
1375, Gali Lehswan,
Chandni Chowk,
Delhi06
And also at:
1287, Sultan Singh Building,
Kashmere Gate,
Delhi06
Pages 1 to 10 Prem Lata & Anr. Vs. Ram Charan Aggarwal & Anr.
3. SHO
PS Kotwali,
Delhi06
4. The Commissioner,
Municipal Corporation of Delhi,
Town Hall, Chandni Chowk,
Delhi06
....Respondents
Date of filing the appeal : 16.02.2012
Date of reserving the Judgment/Order : 28.03.2014
Date of passing the Judgment/Order : 09.04.2014
JUDGMENT
This miscellaneous application has arisen out of an order of the Trial Court dismissing the application filed by the plaintiff/applicant herein to initiate contempt proceedings against the defendants/respondents herein U/O 39 Rue 2 A CPC. 2 According to the defendant, though on 13.10.2008, Ld. Counsel for respondent nos. 1 and 2 had appeared before the Trial Court and made a statement at bar that as per instructions for defendant nos. 1 and 2 were not going to raise any addition or alterations in violation of the law of the land, but on 31.01.2009, the plaintiffs/defendants discovered that respondent nos. 1 and 2 continuing to raise unauthorized construction in the suit property. Firstly without the consent and knowledge of the appellants herein and also in violation of the building by laws. 3 According to the appellants, upon his application, filed U/S 151 CPC seeking directions to the SHO, PSKotwali, Trial Court had issued directions vide order dated Pages 2 to 10 Prem Lata & Anr. Vs. Ram Charan Aggarwal & Anr.
07.02.2009 to the police to stop the unauthorized construction going on the suit property, but even in spite of this, the directions were not complied with and construction continued. When the appellants filed an application for contempt, Trial Court dismissed the said application vide order dated 18.01.2012, i.e. order impugned herein. 4 The brief surrounding facts giving rise to the litigation were that the plaintiffs/appellants had sought a decree of permanent injunction against the defendants in respect of one ground floor shop bearing No. 1375, in Gali Lashwa, Chandni Chowk, Delhi, built upon an area of 300 sq. yards which was stated to have been purchased vide a Registered Lease Deed in the year 1988 and respondent/contemnor no. 1 was stated to be a partner in the firm i.e. M/s Laljimal Tikaram to whom the property originally letout by the previous owner vide a Rent Agreement way back in the year 1935. 5 Subsequent to some dispute having been between the partners of the firm M/s Laljimal Tikaram, pursuant to a settlement of those disputes and the litigation finally a compromise had been arrived at between the parties after which the tenancy rights of the suit property had fallen to the share of respondent no. 1 with respect to remaining right, title and interest in the immovable property, and same had remained unaffected in favour of the plaintiffs and since the plaintiffs apprehended a threat of raising unauthorized and illegal construction, additions and alterations in the suit property by the respondent nos. 1 and 2, the instant suit was filed.
6 As per record, on 13.10.2008, counsel for respondents made a statement on behalf of her clients that the respondents shall not part with the possession of the suit premises nor they shall carry out any addition or alteration in violation of land till the next date i.e. 07.01.2009. On 07.01.2009, the Ld. Presiding Officer concerned was on leave, Pages 3 to 10 Prem Lata & Anr. Vs. Ram Charan Aggarwal & Anr.
and hence the matter was adjourned to 26.03.2009.
7 As per the applicants/appellants/plaintiffs, they had come to know on 31.01.2009 about the defendants/respondents violating their undertaking and raising unauthorized construction. They also moved an application for appointment of a Local Commissioner U/O 26 Rule 9 CPC and vide order dated 07.02.2009, a Local Commissioner was appointed who visited the spot and filed his report alongwith photographs.
8 It was contended by the plaintiffs/appellants that there is a gross violator of their own undertakings given by the defendants/respondents which stood duly established, and as such they should be punished under the provisions of Order 39 Rule 2 A CPC.
9 A notice of the application was issued upon the defendants/respondents and they in reply, took a stand that one Sh. Ram Gopal took an undue advantage of being in possession of a shop and had persuaded its previous owner to sell the same in the name of his wife and son and no illegal construction, additions or alterations were carried out by them and when they took over the possession of rented portion, it was in a condition of a total mess, as the floor was damaged at many places and there was no water supply in the suit premises even the main hole cover of the sewer line was missing and the sewer line was also fully exposed, and plaster was coming off from various walls and also sealing beams and the doors were also in dilapidated state and due to which the premises was not even habitable, and was requiring immediate repairs. 10 The main application under Order 39 Rules 1 and 2 CPC had been disposed off vide detailed order dated 28.02.2009 and the said order had been Pages 4 to 10 Prem Lata & Anr. Vs. Ram Charan Aggarwal & Anr.
challenged by the defendants/respondents herein, which was listed an MCA No.14/09 before the court of Ld. ADJ concerned vide order dated 08.06.2009. Ld. ADJ while allowing the appeal had set aside the said order dated 28.02.2009. 11 Further the plaintiff himself had also preferred an appeal against the order of Ld. ADJ before Hon'ble High Court in C.M.(Main) No.473/09, which was disposed off vide order dated 02.07.2009 by the Hon'ble High Court. Similar contentions had been raised before the Ld. Trial Court by both parties as had already been before the appellate court of Ld. ADJ and also before the Hon'ble High Court in the miscellaneous main. 12 As per report of Ld. Local Commissioner read alongwith photographs filed thereafter, they were depicting some malba as well as flour in a completely dug up condition and it was stated that by the digging up flour, the defendants/respondents herein had definitely tried to alter the condition of the suit property in violation of their undertaking given before the court and they could be punished under Order 39 Rule 2(a) CPC.
13 It was contended on behalf of the defendants/respondents that to hold a person guilty under Order 39 Rule 2(a) CPC, there must be an injunction order in existence, which however, was not there in any form or manner whatsoever till 12.02.2009, when the defendants/respondents had been temporarily restrained from raising any construction by the Ld. Trial Court and hence in the absence of any injunction as on the date of the Act allegedly carried out by the defendants/respondents, who simply meant to carry out the repairs of the suit property in order to make habitable no liability under Order 39 Rule 2(a) CPC could be fastened upon the defendant and even after it being presumed for the sake of arguments that the defendants were guilty of Pages 5 to 10 Prem Lata & Anr. Vs. Ram Charan Aggarwal & Anr.
violation of their own undertaking given before the Court, even then the remedy was available to the plaintiff and the same would not fall under the provisions of Order 39 Rule 2A CPC. It would amount to civil contempt which could be tried and decided only by Hon'ble High Cour, and which remedy, the plaintiff failed to resort to. 14 Since after the order of appellate court concerned, there were no injunction order in operation any more, there could be no question of its violation. 15 Ld. Trial Court took a view that the violation of an undertaking given before Court, though would attract an action for a civil contempt under the Contempt of Civil Court Act, but same shall not be punishable under Order 39 Rule 2(a) CPC. Reference was also had to the observation made by the concerned appellate court of Ld. ADJ and also by the Hon'ble High Court to the effect that there were no addition or alteration or structural changes to be seen from the photographs. On the main premises that there was no injunction order existing in favour of the plaintiff on the date of the alleged violation, the question of violation did not arise, the application was dismissed. 16 Ld. counsel for appellant has emphasized the fact that as on 13.10.08, the respondent/defendant had given an undertaking and on 28.02.2009, the application u/o 39 Rules 1 and 2 CPC had been allowed. Even though by subsequent orders, the said order allowing the application u/o 39 Rules 1 and 2 CPC had been set aside, but fact remains that on 13.10.08, the undertaking given by the respondent/defendant was continuing to operate.
17 Ld. counsel for respondent on the other hand referred to the report of Ld. Local Commissioner and the photographs on record to point out that there was no violation whatsoever.
Pages 6 to 10 Prem Lata & Anr. Vs. Ram Charan Aggarwal & Anr.
18 Ld. counsel for appellant relied upon various judgments of Hon'ble High Court as under:
1. Papanna Vs. Nagachari - AIR 1996 Karnataka 256
2. Paras Ram Vs. Brijendra Singh - AIR 2009 Rajasthan 147
3. Hareswar Roy Vs. Monowara Begum AIR 2010 Gauhati 22
4. K. Jagdish Ponraj & Ors. Vs. A. Muniraj & Ors. AIR 2009 Karnataka 56
5. Kochira Krishan Vs. Joseph Desouz - AIR 1986 Kerala 63 19 What was before the Hon'ble High Court was an order dated 02.06.09 of Ld. ADJ in MCA No.14/09 preferred by the respondent herein, against an order dated 28.02.09 passed by Ld. Civil Judge, wherein the application u/o 39 Rules 1 and 2 CPC filed by the appellant herein restraining the respondent from carrying out additions or alterations in the suit property had been allowed.
20 Ld. Civil Judge had allowed the application of the appellant herein, Ld. ADJ had allowed the appeal against the said order and ultimately, the appellant approached the Hon'ble High Court for redressal in CM (Main) No.573/09. Thus, the only question before Hon'ble High Court brought by the appellant herein was whether the order of Ld. ADJ allowing the appeal of the respondent and vacating the order of injunction was or was not good and in other words, whether interim injunction should or should not be passed in favour of the appellant herein or not.
21 Through and through the submission of the appellant was that the respondent had furnished an undertaking on 31.10.08 before the Ld. Trial Court that he shall not make any addition or alterations in the suit property in violation of the law.
Pages 7 to 10 Prem Lata & Anr. Vs. Ram Charan Aggarwal & Anr. 22 Appellant's case was that despite this undertaking, respondent carried out
additions and alterations and ld. counsel for appellant relied upon the report of Ld. Local Commissioner and the photographs filed by him before Ld. Trial Court in this regard. 23 According to the appellant, Ld. Trial Court had correctly restrained the respondent from carrying out any construction or making any additions or alterations to the suit property. Ld. counsel for appellant further submitted that the LD. ADJ was not justified in modifying the original order of injunction and for permitting the repairs to be carried out.
24 According to the appellant, respondent in fact had carried out additions or alterations in as much as the floor level had been changed and lowered by about 12 inches and moreover, a door earlier existing in the suit property had now been closed by the respondent. On the other hand, it was the contention of ld. counsel for respondent, apart from carrying out the repair work in the suit property, which was very old and dilapidated, no addition or alteration as such had been carried out and no structural changes had either been made or were intended to be made.
25 Hon'ble High Court after perusing the original order passed by Ld. Civil Judge and the one passed by Ld. ADJ and after having perused the report of Ld. Local Commissioner and the photographs filed on record, had been pleased to arrive at a conclusion that it could not be said that any additions, alterations or structural changes of any kind had been carried out by the respondent and instead that the suit premises being an old structure, only repair works had been carried out by the respondent. 26 As regards the floor level also, the claim of the plaintiff regarding difference of 12 inches in the level was not accepted and instead the Hon'ble High Court accepted Pages 8 to 10 Prem Lata & Anr. Vs. Ram Charan Aggarwal & Anr.
the submission made on behalf of the respondent that the difference was only of one or two inches and that also, could be rectified and accordingly, a direction was issued to the respondent to bring back the floor to the earlier level.
27 The undertaking given by the respondent before the Ld. Trial Court was held by the Hon'ble High Court to be substantially protecting the interest of the appellant and to allay their apprehensions and in addition, the Hon'ble High Court further directed the respondent specifically not to make any structural changes in the suit property. Further, respondents were also directed not to carry out any additions or alterations as had already been undertaken by them.
28 Though this may have been the contention raised by ld. counsel for appellant and rightly so, that in the appeal before Hon'ble High Court, it was only the question whether an injunction should or should not be granted till disposal of the suit as sought by the plaintiff/appellant herein and that the question was not about alleged violations; but be that as it may, since the Hon'ble High Court has already been pleased to deal with the question and come to the conclusion that there were no violations by the respondent, appellant, in stead of reverting back and coming up in appeal before the court, would more appropriately have placed his grievances before the Hon'ble High Court by an appropriate application.
29 In fact, it is quite surprising that the order by the Hon'ble High Court had been passed way back on 02.07.09, the application u/o 39 Rule 2(a) CPC separately had been filed before Ld. Trial Court on 05.02.09 and was disposed off by the impugned order dated 18.01.2012 i.e. after three years.
30 Though Ld. Trial Court has proceeded on other considerations as well Pages 9 to 10 Prem Lata & Anr. Vs. Ram Charan Aggarwal & Anr.
mainly being that on the date of alleged violation, there was no injunction order in existence, it would not be relevant anymore to have discussed the legal proposition and the question, whether breach of an undertaking given by the defendants would amount to contempt is no more relevant. In view of the order of Hon'ble High Court on the aspect of violation rendered already on the facts, except to indulge any academic exercise. There can be no two views that this court is also bound to accept the aforesaid observations/the view taken by the Hon'ble High court in the above noted petition and is not competent to sit in appeal or revision or review all the findings given by the superior court.
Appeal is without merit and in fact the very filing thereof is misconceived. Same is dismissed.
TCR be returned alongwith copy of this order.
Appeal file be consigned to record room.
(SUJATA KOHLI)
Announced in Open Court ADDITIONAL DISTRICT JUDGE
today i.e. 09.04.2014 WEST/DELHI
Pages 10 to 10 Prem Lata & Anr. Vs. Ram Charan Aggarwal & Anr.