Delhi District Court
Sh. Sawroop Singh vs Ganesh Das on 6 September, 2007
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IN THE COURT OF Sh. SANJEEV AGGARWAL
ADLL. SR. CIVIL JUDGE : DELHI.
MCA 57/2007
Sh. Sawroop Singh
R/o House No.40,
Lal Katra,
Sazi Mandi
Delhi. ...APPELLANT
V e r s u s
Sh. Raj Kumar
S/o Sh. Chane Lal
R/o 366, Gali Robimwali,
Main Bazar,Subzi Mandi,
Delhi. ...RESPONDENT
Date of institution:23.04.2007
Judgment reserved on:05.09.2007
Date of decision:06.09.2007
J U D G M E N T
1 By this judgment, I will dispose off an appeal preferred by the appellant against the impugned order dated 23.03.2007, passed by the ld. Civil Judge allowing the application of the respondent U/O 39 Rules 2A CPC read with Section 11 & 12 of the Contempt of Court Act dated 13.01.95 moved by the respondent, and whereby the warrants of possession of the suit property as shown in red colour in the site plan filed on the record of trial 2 court, was issued alongwith directions to the police to restore the possession of the suit premises to the respondent and the appellant was also directed to under go civil imprisonment for a period of one month. Against the said order, the appellant has preferred the present appeal. 2 Brief facts, which are necessary for adjudication of the aforesaid appeal are; the respondent herein had filed a suit for permanent injunction against the appellant claiming himself to be a tenant under the appellant in respect of two rooms, kitchen, latrine, and bathroom in property No. 40, Lal Katra, Subzi Mandi, Delhi, and that alongwith said suit, respondent had also moved an application U/O 39 Rule 21&2 CPC and vide order dated 21.5.04, the appellant was restrain from dispossessing the respondent forcibly from the suit premises during the pendency of the suit.
3 It is stated that on 13.1.95, the respondent moved an application U/O 39 Rule 2 A read with Section 11 & 12 of Contempt of Court Act for initiating contempt proceedings against the appellant alleging herein that in the night of 12.1.06 at about 9.30 to 10.00 PM, the appellant and his wife, one assistant subinspector, one constable entered into the premises alongwith one Nanti Dudhwala, who also accompanied them and these persons called for the respondent and threatened him, if he did not sign the 3 papers, they will lodged him in the police station and will also involved him in some other cases and thereafter, appellant forcibly obtained the signatures of the respondent on two stamp papers and one other paper and it is alleged that after obtaining the signatures on the said papers, the house hold articles of the appellant were thrown out from the suit property and he was dispossessed from the property.
4 It is stated that the respondent had gone to Subzi Mandi Police Station, but police did not take any action and thereafter the appellant had also sent telegram to SHO Subzi Mandi regarding the conduct of the police officials.
5 In reply, appellant herein has denied the allegations made in said application and had averred that the appellant & respondent amicably settled their disputes in the presence of the respectable persons of the society and after signing the surrender lease deed and surrender cum agreement dated 12.1.95, witnessed by Anant Ram @ Nanti Dudhwala and one Sh. Brij Lal, the respondent himself had brought down all his belongings from the suit premises with the help of labourers and handed over the peaceful and vacant possession of the suit premises to the appellant and after handing over the suit premises to the appellant, the respondent took 4 away some of his belongings lying in the gali and stated that the remaining belongings he would carry later on in a tempo.
6 It is stated that on 13.1.95, the appellant accompanied by the respondent and one witness Sh. Anant Ram @ Nanti Dudhwala came to the court, where they also got the surrender lease deed and surrender lease cum agreement attested by a Notary Public, but respondent with some oblique motives had moved the present application and has also not removed his articles which were lying in the premises outside. It is stated in these circumstances, the appellant has neither dispossessed the respondent from the premises neither evaded any order of the court.
7 The appellant has challenged the order of the ld. trial court on various grounds which are herein set up briefly:
(i) It is stated that the trial court had erred in observing/holding that the deposition of the appellant that the documents i.e. surrender lease deed and surrender lease cum agreement were not got prepared by him and that he compromised the matter with the respondent under pressure, is in stark contrast to the stand taken by him in reply to the contempt application. It is stated that in fact the deposition of the appellant is absolutely on the lines of the facts alleged in the reply to 5 the contempt application and the reference be made to para 10 of the reply to the contempt application in this regard, wherein the appellant had categorically stated that it was the respondent, who had brought the stamp papers and typed the stamp papers and signed of his free will in the presence of the witnesses namely, Sh. Anant Ram @ Nanti Dudhwala and Sh. Brij Lal.
(ii)That the learned trial court had also erred in observing that neither in the reply to the contempt application nor in the cross examination of AW1 & AW2, the appellant had disputed the sending of the telegrams Mark A & B, and it is stated that the trial court has himself misread the facts and it has been emphatically denied by the appellant in Para 4 of his reply to the contempt application that the respondent and his mother gave any telegrams to any authority and AW1 & AW2 were also cross examined on the said fact. Therefore, the reliance of the court on the mark A & B is misconceived.
(iii)It is also stated that the order of the trial court to the effect, that it is difficult to believe that the respondent would have vacated the suit premises in such a haste leaving, the goods in gali is based on conjectures and surmises and ld. trial court has observed that DW1 6 has deposed in his cross examination that neither he nor Nanti Dudhwala put signatures on the register maintained by the Notary Public and DW2 had deposed that the respondent put his signatures on the register. It is stated that the ld. trial court had failed to appreciate the fact that the said discrepancy were only minor in nature and which are bound to occur due to lapse of time and ld. trial court had also failed to appreciate that the main controversy before the court was whether the said document Ex.RW1 & Ex.RW2 were signed by the respondent voluntarily or under threat by appellant and the police.
(iv)It is stated that ld. trial court had erred in relying upon the testimony of AW1 & AW2, which contained major discrepancies. It is also stated that the ld. trial court had failed to take into account the conduct and character of the respondent, which was very relevant in deciding the contempt application, and it is stated that the several criminal cases are pending against the respondent in different courts.
(v)It is further stated that the trial court had committed error by granting temporary mandatory injunction and directing the police to restore possession and further ordering that the appellant be sent to civil 7 prison for one month when no such relief was prayed for. 8 I have heard ld. counsel for the appellant, ld. counsel for the respondent and perused the trial court record. Counsel for the appellant has relied upon following judgments:
(a) AIR 1973 Allahabad 449 "Sitaram Vs. Ganesh Das.
(b) AIR 1991 S.C. 1949 "Bishwanath Rai Vs Sachhidanand Singh.
(c) AIR 2004 SC 175 "Narbada Devi Gupta Vs. Birendra Kumar Jaiswal and another.
(d) AIR 1992 Bombay 434 Rewachand Ladharam Ramchandani Vs. Naraindas8.Kanuga and another
(e) AIR 2003MP 268 "Smt. Sunder Bai & Ors. V. Nonit Ram"
The proposition of law laid down in aforesaid judgments is not in dispute. However, each case has to be decided on its own peculiar facts and circumstances.
9 After perusal of the trial court record and going through the rival submissions, I am of the considered opinion that the ld. trial court has correctly appreciated the facts, which was before it and had reached the correct conclusion, for the following reasons:
Firstly, the ld. trial court has rightly held that DW1 has stated in his cross examination that neither he nor Raj Kumar and Nanti Dudhwala has put signatures on the register of Notary Public, whereas DW2 had stated in his cross examination that Raj Kumar had signed in the register of the Notary 8 Public, which shows material contradiction in the testimony of DW1 & DW2 and that no reason had been given by the appellant as to why the said Notary Public was not summoned in the witness box to prove that the said register was so signed by the respondent, without which the version put by them, that the said register was got signed on the next date i.e on 13.1.95 becomes doubtful.
10 Secondly, it is not plausible, if the witness, the appellant and the respondent could come to the court for signing of the register of the Notary Public on 13.1.95 then what stopped appellant from moving the requisite application before the concerned court, where the suit/matter was pending, as it would have been the best course available to the parties to get their statement recorded in the court, to obviate any future complications.
Counsel for respondent has further argued that once the respondent had admitted the signatures on the surrender of lease and surrender lease cum agreement Ex.RW1 then the onus was upon him to prove that his signature was obtained from him under force. In this regard, he has relied upon judgments AIR 2004 SC 175, AIR 1992 DELHI 434, AIR 2003 MP 368 and 1971 SC 1949. The ratio of the said judgment is squarely applicable to the facts of the present case and this contention of the counsel 9 for the appellant is correct that it was the respondent who had to discharge the onus in this case, that his signatures were obtained on the said documents forcibly and by exercising coercion . The respondent in this case has duly discharged the said onus by proving so, as it is not necessary to discharge the said onus that there should be some direct evidence to this only in the shape of an independent witness, as it is common human experience that no independent witness these days depose on behalf of any of the party, when both the parties are fighting with each other tooth & nail it is often difficult to find an eye witness. However, in this case, there is direct testimony of AW1 & AW2 and further the respondent has been able to discharge the said onus by shaking the conscious of the court that the said documents were got executed from the respondent under force, therefore, in the present case, circumstantial evidence coupled with above direct evidence of AW1 & AW2 and the surrounding suspicious circumstances in which the said documents were executed, clearly proves the allegations of the respondent.
11 As a mere glance, on the documents Ex.RW1 & RW2, shows that the names of the parties on the said documents are typed on a different typewriter and the rest of the documents is typed on a different typewriter and 10 it seems that the names of the parties has been incorporated on the said documents Ex.RW1 & RW2 later on by a different typewriter. If the said documents were typed on one typewriter, then where was the need to incorporate the names on different typewriter later on which seems to be the case in hand.
12 Further once the respondent had denied the stamp papers were brought by him. The onus was upon the appellant to prove that the stamp paper were purchased either by or on behalf of respondent. 13 Further no consideration seems to have been received by the tenant for the execution of the said documents Ex.RW1 & Ex./RW2 except waiver of arrears of rent, it is difficult to believe that any tenant would have vacated the premises for such a meager consideration especially, when there was a stay order in his favour and there was no impending proceedings of eviction from the demised premises from any other court in any civil proceedings, which could have actuated him into entering vacating the premises in this manner in utter haste.
14 Further DW1 in his cross examination has stated that it hardly took place 1015 minutes to finalise the compromise. Whereas the DW1 has stated that it took half an hour and quarter half for settlement of issue, which 11 is a major contradiction. Though on the other hand DW1 has stated in his cross examination that he and respondent were not on visiting terms prior to 12.1.95 and they were also not on talking terms, whereas in his examination in chief he has stated that the respondent used to bring Anant Ram and another dudhwala to enter into compromise.
15 Regarding the arguments of counsel for the appellant that telegram Mark A & B have not been proved as per law, as it has not been proved by the respondent that the said telegrams were indeed sent to higher authorities, as alleged by him. He has also argued that there is no visible stamp of the postal authorities on the said Mark A & B, which could categorically prove that the said telegrams were ever sent. The said assertion of the counsel for the appellant appears to be correct, as the respondent has failed to summon any telegram official to prove the said telegrams. Though the PW1 was also cross examined regarding the said telegram, yet no categorical suggestion was also given in the cross examination of PW1 that the said telegrams were forged and fabricated or they were never sent or however even bereft of the said telegrams, the respondent has been able to prove that there are sufficient suspicious circumstances surrounding the document Ex.RW1 & RW2, which impinges 12 upon the conscience of the court and which leads to the inference, that the said documents have not been executed in a fair and free atmosphere. 16 Further the police apathy is well known. Therefore, the stand of RW1 & RW2 that they went to the police station and yet no action was taken by the police authorities is hardly of any surprise, as police authorities are well known for their apathetic attitude towards the general public and it is well known that generally the police authorities are very very reluctant to lodge an FIR in any matter which comes before then and their first action is to turn away the complainant for one reason or another, and only in rare cases, FIR is lodged. Regarding the contention of the counsel for the appellant, that the respondent had himself admitted that they were lot of cases pending against him and, therefore, he is a person of criminal bent of mind and back ground. The counsel for the appellant has argued that the respondent is facing the trial in various cases including cases of NDPS Act, black marketing of film tickets U/S 406, 324, 325 IPC and various other cases. Therefore, the counsel for the appellant has argued that the evidence of the PW1 should have been scrutinized by the ld. trial court, with the pinch of salt. This argument of the counsel for the appellant is without any substance as merely because the respondent had a criminal background does not mitigate the 13 wrong acts of the appellant, as the fact in issue before the trial court was, whether the appellant had willfully disobeyed the order of the trial court dated 21.5.94 or not, which issue was specifically framed on the application U/O 39 Rule 2 A CPC of the respondent vide order dated 2.3.85 of the ld. trial court . The bad or good character of the respondent was no way, a fact in issue before the trial court, while deciding the application in question. 17 The ld. trial court had further rightly held that "Here it is important to note that the respondent/defendant has throughout taken inconsistent stands in his defence as mentioned above. In this regard, it is noteworthy that on being served with the summons of the suit, the respondent/defendant appeared in the matter on 26.11.93 and admitted that the applicant/plaintiff was his tenant in respect of the suit premises at the rent of Rs.1500/ per month. However, in his WS, the respondent/defendant took a diamterically opposite stand and denied the relationship of landlord and tenant between the parties and stated that he had only allowed the applicant/plaintiff to keep certain goods in a room for few days and that the possession of the said room continued to remain with him. But later on in his examination in chief, the respondent/defendant again made a somersault and stated that the 14 applicant/plaintiff was his tenant in respect of the suit premises at the rent of Rs.1500/ per month exclusive of water and electricity charges. Thus, it is manifestly clear that the respondent/defendant has no regards for the court and thereby a deterrent punishment deserves to be passed against him."
18 Further the trial court has rightly observed that the appellant is also entitled to the restoration of the possession of the suit premises relying upon various judgments referred to namely, Sujit Pal Vs. Parbir Kumar Sun and Ors, AIR 1986 Calcutta 220, Manohar Lal Vs. Seth Hera Lal, AIR 1962 SC 529, Harinandan Vs S. N. Pandita AIR 1975 Allahabad 48 where it had been held by the superior courts, that where the defendant forcibly dispossesses the plaintiff and takes the possession of the suit premises in utter violation of the interim injunction, the court can grant temporary mandatory injunction U/S 151 CPC by directing the police to restore possession of the plaintiff.
19 Further, it has been held that "The proceedings U/O 39 Rule 2A are quasi criminal in nature and are meant to maintain the dignity of the court in the eyes of people, so that supremacy of law may prevail and to deter people for mustering the courage to disobey the interim 15 injunction passed by the court (New Okhla Industrial Development Authority Vs. Atar Singh, AIR 2003 All. 321 (326).
20 The court can provide police protection in exercise of its inherent powers under Section 151 CPC to see that interim injunction is properly implemented, though it is open to the party to file petition U/O 39 Rule 2 A, (AIR 2003 AP 44).
21 Further it is held that :
"Where in voilation of stay order or injunction against a party. Something has been done in disobedience it will be duty of the court as a policy to set the wrong light and not allow the perpetuation of the wrong doing inherent power of the court is bound to be exercized in the manner in the interest of justice (Century Floor Mills Vs. S. Suppiah, AIR 1975 Km 270 FB)
22 Further, it has been held in case "when a tenant was forcibly evicted and his goods were also thrown out, in a suit by tenant for restoration of possession, interim relief of mandatory injunction restoring ante status quo was ordered (Hari Shankar Vs Chandra Prakash, 1996 AIHC 4952, 4956 (Raj).
23 Therefore, it also follows as a squel or as a corollary to the that 16 possession be restored to the respondent, who had been dispossessed from the suit premises, while the injunction order was in operation, the trial court was therefore, justified in issuing the warrants of possession, with the direction to the police to restore the possession of the demised premises to the respondent in respect to the suit premises. However, it is settled law that the purpose of Order 39 Rule 2A as per the judgment relied upon by the counsel for the appellant AIR 1973 Allahabad 449 is not to punish a person who disobeys injunction order, rather the purpose is to enforce the order of injunction, and looking at the age of the appellant, who appeared to be an old person at the time of arguments and specially looking into the fact that the incident took place around 12 years ago, I am of the considered opinion that no purpose shall be served by sending him into civil imprisonment for one month as held by the ld. trial court. Consequently, I modify the sentence of civil imprisonment and direct the appellant to instead, pay a sum of Rs.10,000/ as fine in lieu thereof within one month from the date of this order in default of payment of fine as afore directed, the appellant shall undergo civil imprisonment for 15 days. Warrants of possession in respect of suit property shown in red colour in the site plan filed before the trial court as per order dated 23.3.07 of trial court be issued by the trial court in favour of the 17 respondent and against the appellant with the direction to the police to restore the possession of the respondent immediately in respect of afore suit premises. However, warrants of possession be not issued in favour of the respondent till 24.9.07, in order to enable the parties to prefer an appeal. Accordingly, appeal preferred by the appellant is dismissed. Trial court record be sent back alongwith a copy of this order and appeal file be consigned to Record Room.
Announced in the open court on 06.09.2007.
(Sanjeev Aggarwal) Addl. Senior Civil Judge : Delhi.
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6.9.2007
Present: None
Vide separate detailed judgment of even date, the appeal preferred by the appellant is dismissed. Interim order dated 9.5.07 stands vacated. However, the sentence of one month civil imprisonment awarded by the ld. trial court vide order dated 23.3.07 is modified to the extent that the appellant is directed to pay fine of Rs.10,000/ in lieu of the said imprisonment to the respondent within one month from the date of this judgment, in default of payment of fine afore directed, the appellant shall undergo civil imprisonment for 15 days. Warrants of possession in respect of suit property shown in red colour in the site plan filed before the trial court as per order dated 23.3.07 of trial court be issued by the trial court in favour of the respondent and against the appellant with the direction to the police to restore the possession of the respondent immediately in respect of afore suit premises. However, warrants of possession be not issued in favour of the respondent till 24.9.07, in order to enable the parties to prefer an appeal. Trial court record be sent back alongwith a copy of this order and appeal file be consigned to Record Room.
(Sanjeev Aggarwal) Addl. Senior Civil Judge : Delhi.
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