Karnataka High Court
Tara Kamalaksha Nayak, vs Shri.Rajshekar on 17 April, 2017
Bench: Vineet Kothari, H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 11th DAY OF APRIL 2017
PRESENT
THE HON'BLE DR. JUSTICE VINEET KOTHARI
AND
THE HON'BLE DR. JUSTICE H. B. PRABHAKARA SASTRY
CONTEMPT OF COURT CASE No.100055 of 2017 (Civil)
BETWEEN:
1. TARA KAMALAKSHA NAYAK,
AGE: 80 YEARS,
OCC: HOUSE WIFE,
R/O: 5/258, KALLASH BHAVAN,
SION WEST,
MUMBAI-400022
2. SRI.RAMMOHAN KAMALAKSHA NAYAK,
AGE: 57 YEARS,
OCC: BUSINESS,
R/O 10669,
NEHRU NAGAR POLICE QUARTERS,
BESIDE NEHRU NAGAR,
BELAGAVI-590010
3. SMT.RAJANI D/O KAMALAKSHA NAYAK
AFTER MARRIAGE RAJANI
W/O SUDHAKAR PRABHU,
AGE: 56 YEARS,
OCC: BUSINESS,
2
Date of Order: 11.04.2017
CCC No.100055/2017
Tara Kamalaksha Nayak & Others
Vs. Shri.Rajshekar Hanumanthappa Kalal
& Others
R/O 10669,
NEHRU NAGAR POLICE QUARTERS,
BESIDE NEHRU NAGAR,
BELAGAVI-590010
4. SMT.RENUKA D/O KAMALAKSHA NAYAK
AFTER MARRIAGE RAJANI
W/O RAJESH KUDAV,
AGE: 54 YEARS,
OCC: HOUSEHOLD,
R/O GRACE-4, 304,
VASANTOSLAR
LBS MARG, MULUND WEST,
MUMBAI-400080
5. SRI.RAJGOPAL
S/O KAMALAKSHA NAYAK,
AGE: 47 YEARS,
OCC: BUSINESS,
R/O 5/258, KALLASH BHAVAN,
SION WEST,
MUMBAI-400022
... COMPLAINANTS
(By Sri R M KULKARNI ADVOCATE)
AND:
1. SHRI.RAJSHEKAR
HANUMANTHAPPA KALAL
AGE: 48 YEARS,
OCC: BUSINESS,
R/O RAKSHIT INTERNATIONAL HOTEL,
OPP. SUKHSAGAR HOTEL,
SHAIK HOMEOPATHIC COLLEGE ROAD,
3
Date of Order: 11.04.2017
CCC No.100055/2017
Tara Kamalaksha Nayak & Others
Vs. Shri.Rajshekar Hanumanthappa Kalal
& Others
BELAGAVI-590010.
2. SRI.ANJANA RAJSHEKAR KALAL,
AGE: 47 YEARS,
OCC: BUSINESS,
R/O RAKSHIT INTERNATIONAL HOTEL,
OPP. SUKHSAGAR HOTEL,
SHAIK HOMEOPATHI COLLEGE ROAD,
BELAGAVI-590010.
3. SRI SANJAY L.JUGNIKAR,
S/O.LAXMAN RAO JUGNIKAR,
AGE: 45 YEARS,
R/O.CTS NO.10669,
NEHRU NAGAR, BELAGAVI-590010,
KARNATAKA.
... ACCUSED
(By Sri.SHRIHARSH A NEELOPANT ADV. FOR A1 & 2;
SMT.V.PRIAYADARSHINI IYER &
SRI.RAMESH B.CHIGARI ADVOCATES FOR A3)
THIS CCC IS FILED UNDER SECTIONS 11 & 12 OF
THE CONTEMPT OF COURTS ACT, 1971, R/W. ARTICLE
215 OF CONSTITUTION OF INDIA, PRAYING TO,
INITIATE CONTEMPT PROCEEDINGS AGAINST THE
ACCUSED FOR HAVING COMMITTED CONTEMPT BY
VIOLATION OF THE ORDER DATED: 25.11.2015,
16.12.2016 AND ALSO THE UNDERTAKINGS FILED
BEFORE THIS HON'BLE COURT IN R.P.NO.100096/2015
PRODUCED AS PER ANNEXURE-A & B, PUNISH THE
4
Date of Order: 11.04.2017
CCC No.100055/2017
Tara Kamalaksha Nayak & Others
Vs. Shri.Rajshekar Hanumanthappa Kalal
& Others
ACCUSED AND DIRECT THEM TO COMPLY THE
DIRECTIONS AND UNDERTAKINGS FORTHWITH, IN
THE INTEREST OF JUSTICE AND EQUITY.
THIS PETITION COMING ON FOR HEARING ON IA
THIS DAY, DR. VINEET KOTHARI, J., MADE THE
FOLLOWING:
ORDER
Mr. Sri R M Kulkarni, Adv. for Complainants. Mr. Shriharsh A Neelopant Adv. for Accused Nos.1 & 2; Mrs.V.Priayadarshini Iyer & Mr.Ramesh B.Chigari Advocates, for accused No.3.
1. The present case presents a very painful and strange kind of behavior on the part of the accused-respondents. The first two being the husband and wife, Mr.Rajashekar Hanumanthappa Kalal and Mrs.Anjana Rajshekar Kalal being the tenants against whom the eviction decree became final at the hands of the learned Single judge while dismissing the Review Petition No.100096 of 2015 in RSA No.5972 of 2013, Rajashekar Hanumanthappa Kalal and another Vs. 5 Date of Order: 11.04.2017 CCC No.100055/2017 Tara Kamalaksha Nayak & Others Vs. Shri.Rajshekar Hanumanthappa Kalal & Others Kamalaksha Govardhan Nayak (deceased), through his legal representatives-Tara Kamalaksha Nayak and others.
2. The learned Single Judge, while dismissing the aforesaid Review Petition on 25th November 2015 noticed the chequered history of this litigation of eviction and confirmed the eviction judgment and decree dated 27th August 2015 made in RSA No.5972 of 2013, observed as under:
" 3. It is also brought to the notice of this Court that the balance of arrears of rent of Rs.2,52,748/- has been deposited by way of D.D. dated 1.12.2015 bearing No.597484 drawn in favour of Additional Registrar General, High Court of Karnataka, Dharwad. Hence, the Registry is directed to release the said sum in favour of respondent No.1B - Sri Rammohan Kamalaksha Nayak forthwith.
4. The petitioners/tenants shall pay damages of Rs.30,000/- per month from 1st of January, 2016 to 31st December, 2016 without 6 Date of Order: 11.04.2017 CCC No.100055/2017 Tara Kamalaksha Nayak & Others Vs. Shri.Rajshekar Hanumanthappa Kalal & Others committing any default. In case, any default is committed for more than 2 months, the landlords/respondents are at liberty to file necessary execution petition.
5. Sri Murari, learned Counsel for the petitioners on instructions submitted that the petitioners undertake to file an additional affidavit within a week with regard to payment of damages of Rs.30,000/- per month from 1st January, 2016 to 31st December, 2016 and they will also pay the electricity, water charges and the service taxes to the concerned authorities till the vacation of the premises in question i.e., on 31st of December, 2016.
6. In view of the undertaking given by the petitioners as stated supra, the petitioners shall vacate the schedule premises on or before 31st of December, 2016 voluntarily without driving the landlords for further litigation and no further time will be granted to the tenants beyond 31st of December, 2016; that they shall not sublet the premises in 7 Date of Order: 11.04.2017 CCC No.100055/2017 Tara Kamalaksha Nayak & Others Vs. Shri.Rajshekar Hanumanthappa Kalal & Others question in favour of any third party or commit any default in payment of monthly damages for more than two months; that the petitioners shall pay the monthly damages at Rs.30,000/- to the landlords from 1st of January, 2016 to 31st of December, 2016 without committing any default; that the petitioners shall pay all the arrears of electricity bills, water charges and service taxes in respect of the premises in question up to date i.e., till 31st of December 2016.
7. In view of the undertaking filed by way of affidavits by the petitioners/tenants, the review petition is disposed of confirming the judgment and decree passed by this Court on 27th August, 2015 made in RSA No. 5972/2013."
3. The third round of litigation in the form of RSA No.5972 of 2013 itself had ended in High Court against the tenants with the dismissal of the RSA No.5972 of 2013 by a 8 Date of Order: 11.04.2017 CCC No.100055/2017 Tara Kamalaksha Nayak & Others Vs. Shri.Rajshekar Hanumanthappa Kalal & Others learned Single Judge on 27th August 2015 in the following terms:
" 18. Both the courts below based on the evidence of PW.1 and DWs.1 to 4 and the material evidence Ex.P.1 to P.22 and Ex.D.1 to D.5 has concurrently held that, the plaintiffs have proved that the defendants are tenants on the monthly rental of Rs.10,000/- in respect of suit schedule property and plaintiffs are in arrears of Rs.3,30,000/- and proved that plaintiffs have issued legal notice on 13.12.2009 under Section 106 of Transfer of Property Act and terminated the tenancy of the defendants in respect of suit schedule property and the plaintiffs are entitled to recover possession as well as rent. Accordingly, decreed the suit and directed the defendants to vacate the suit schedule property within three months by paying rent of Rs.3,30,000/- as arrears and also reserved liberty to the landlord to file a separate proceedings under Order XX rule 12 of Code of Civil Procedure, is based on the cogent legal evidence on record. The appellants have not 9 Date of Order: 11.04.2017 CCC No.100055/2017 Tara Kamalaksha Nayak & Others Vs. Shri.Rajshekar Hanumanthappa Kalal & Others made out any prima facie case to interfere with the findings of fact recorded by the courts below under provisions of Section 100 of Code of Civil Procedure. No substantial question of law involved in the present appeal.
Accordingly, the RSA is dismissed."
4. Despite the undertaking given by the respondents- tenants to hand-over the vacant and peaceful possession of the suit property in question, a shop situated at CTS No.10699, Nehru Nagar, Old P.B. Road, Belagavi, on or before 31st December 2016, when the same was not so handed-over, the landlord filed the present contempt petition in this Court on 09th February 2017.
5. On 06th March 2017, the notices were issued to the three respondents accused persons including Mr.Sanjay L.Jugnikar, who the learned counsel for the complainants stated that he was found to be in possession of the suit property in question. All the respondents were directed to appear before 10 Date of Order: 11.04.2017 CCC No.100055/2017 Tara Kamalaksha Nayak & Others Vs. Shri.Rajshekar Hanumanthappa Kalal & Others the Court on the next date if the possession was not handed- over to the petitioners-landlords by then. The matter was kept on 21st March 2017. On 21st March 2017, the notices on the respondents were awaited for a period of two weeks. Despite service of the notices, when the accused respondents did not appear before the Court, this Court directed issuance of bailable warrants for securing the presence of all the three accused respondents on 10th April 2017 for them to be present on 11th April 2017. They are accordingly present today before the Court.
6. The learned counsel for the complainants brought to the notice of the Court that the vacant possession of the said suit shop has not been handed-over to the land-lord as of now.
7. On the other hand, Mrs.V.Priyadarshini Iyer, learned counsel appearing for Mr.Sanjay L.Jugnikar has submitted before us that the said person who was in possession of the shop in question was not impleaded as a party respondent 11 Date of Order: 11.04.2017 CCC No.100055/2017 Tara Kamalaksha Nayak & Others Vs. Shri.Rajshekar Hanumanthappa Kalal & Others in the said eviction matter hitherto and he has filed a Writ Petition No.100579 of 2017 before the learned Single Judge of this Court on 17th January 2017, in which an exparte' interim order has been passed by the learned Single Judge on 08th February 2017 staying the eviction for a period of eight weeks.
8. We summoned the record of the said Writ Petition No.100579 of 2017 in the pre-lunch session when the hearing of the present contempt petition took place and accordingly, the records of the said Writ Petition No.100579 of 2017 has been placed before us in the post-lunch session. We find from the orders drawn in that petition that after the exparte' stay order dated 08th February 2017, the matter again came up before another learned Single Judge of this Court on 05th April 2017. When the learned counsel for the petitioner sought extension of interim order, but on the opposition of the same by the learned counsel for the respondent No.1/landlord, on the ground that the said interim order was obtained by misrepresentation, the 12 Date of Order: 11.04.2017 CCC No.100055/2017 Tara Kamalaksha Nayak & Others Vs. Shri.Rajshekar Hanumanthappa Kalal & Others learned Single Judge extended the interim order dated 08th February 2017 only upto 10th April 2017 i.e., yesterday. No further extension of that exparte' stay order was made thereafter.
9. The learned counsel for the respondent accused No.3, Mrs.V.Priyadarshini Iyer and learned counsel for the complainants also brought to our notice that the respondent No.3 had filed an Injunction Suit namely O.S. No.1090 of 2013 against the landlord seeking an injunction against his eviction from the suit shop in question but the said suit itself came to be dismissed for want of prosecution by the learned Court below, IV Additional Civil Judge and JMFC, Belagavi on 11th August 2016.
10. The learned counsel for the respondent accused No.3 Mrs.V.Priyadarshini Iyer, submitted that a collusive compromise decree of eviction was obtained against Accused 13 Date of Order: 11.04.2017 CCC No.100055/2017 Tara Kamalaksha Nayak & Others Vs. Shri.Rajshekar Hanumanthappa Kalal & Others Nos.1 and 2 at the back of the Respondent No.3 - Sanjay L.Jugnikar and upon a Court query, she relied upon a document of the year 2003 which was produced before the learned Single Judge in his fresh Writ Petition No.100579 of 2017, Sanjay L.Juginkar Vs. Kamalaksha Govardhan Nayak and others, purported to be a " No Objection Letter " given by the said Respondent Kamalaksha G.Nayak who died in the year 2003 itself giving his 'no objection' for opening of a Bar (wine shop) in the suit premises in question in favour of the petitioner- Sanjay L.Juginkar. She also relied upon the averments made in paragraph 3 of the writ petition filed by him that there was an oral agreement between the said petitioner-Sanjay L.Juginkar and Kamalaksha Nayak and with the initial security deposit of Rs.2,00,000/- and monthly rent of Rs.10,000/- was also paid and that is how it was claimed that the relationship of Lessor and Lessee existed between the petitioner-Sanjay L.Juginkar and the respondent-Kamalaksha Nayak. 14
Date of Order: 11.04.2017 CCC No.100055/2017 Tara Kamalaksha Nayak & Others Vs. Shri.Rajshekar Hanumanthappa Kalal & Others
11. When the learned counsel for the respondent was asked to produce any documentary evidence for payment of any rent or the lease deed itself, no documentary evidence could be produced by her.
12. The cause of action shown in the Writ Petition No.100579 of 2017 filed by Sri.Sanjay L.Juginkar in paragraph 13 of the petition shows that he was shocked to see an order dated 16th December 2016 passed by the learned Single Judge dismissing the Review Petition filed by the accused respondent Nos.1 and 2 - tenants and he was to vacate the said shop in question and hence, the said writ petition was filed by him.
13. As stated above, the interim order granted in favour of the said petitioner in his Writ Petition No.100579/2017 on 08th February 2017 no longer exists now and was last extended only upto 10th April 2017. 15
Date of Order: 11.04.2017 CCC No.100055/2017 Tara Kamalaksha Nayak & Others Vs. Shri.Rajshekar Hanumanthappa Kalal & Others
14. The learned counsel for the complainants, Mr.R.M.Kulkarni, has also brought to our notice that it is not that the Respondent Accused No.3 Mr.Sanjay L.Juginkar was not aware of the pending eviction proceedings against the accused respondent Nos.1 and 2 Mr.Rajashekar H.Kalal and his wife Mrs.Anjana R.Kalal, as he happened to be the brother of Smt.Anjana herself. Moreover he submitted that an application seeking his impleadment was even filed by the tenants in the Review Petition before the learned Single Judge, but that application was dismissed as not pressed by themselves. No effort was ever made by Sanjay L.Juginkar to get himself impleaded throughout the trial and establish himself as the tenant.
15. After considering the aforesaid submissions, we are of the clear opinion that all the three Accused respondent are deliberately and rather mischievously trying to flout the eviction decree, after a long trail of litigation by the landlords 16 Date of Order: 11.04.2017 CCC No.100055/2017 Tara Kamalaksha Nayak & Others Vs. Shri.Rajshekar Hanumanthappa Kalal & Others which ended not only in their favour with the dismissal of the RSA by the tenants, but also the Review Petition by a detailed order passed by the learned Single Judge. The effort of a close relative and the excise licencee, Mr.Sanjay L.Juginkar is nothing but a collusive and sham act played upon by them to avoid and deny the fruits of litigation to the plaintiff- complainant-landlord, who is now represented by his legal representatives.
16. It is rather surprising and painful that having lost the legal battle in the regular course, the tenants not only ended up giving an Undertaking before the learned Single Judge to hand over the vacant and peaceful possession of the shop in question on or before 31st December 2016, but thereafter, the third accused respondent Mr.Sanjay L.Juginkar who might have been inducted in the shop by themselves, initiated a fresh trail of litigation by filing Writ Petition No.100579 of 2017 in this Court on 17th January 2017 posing to be an independent and 17 Date of Order: 11.04.2017 CCC No.100055/2017 Tara Kamalaksha Nayak & Others Vs. Shri.Rajshekar Hanumanthappa Kalal & Others innocent tenant in the said suit premises itself. This is nothing but a deliberate attempt on the part of all the three Accused respondents to flout and circumvent the orders of the Court, showing scant regard for the same. We strongly deprecate the same and we are of the clear opinion that such persons have to be dealt with iron hands of justice and any leniency in such matter is likely to send a very wrong message to the litigants, as if the Court orders are meaningless or can be gone round about in this manner.
17. The Hon'ble Supreme Court in the case of Noorali Babul Thanewala Vs. Sh.K.M.M.Shetty and others, AIR 1990 SC 464, in a similar matter, strongly dealt with the contemnor tenant, in the following manner:
" 11. When a court accepts an undertaking given by one of the parties and passes orders based on such undertaking, the order amounts in substance to an injunction restraining that party from acting in breach thereof. The breach of an 18 Date of Order: 11.04.2017 CCC No.100055/2017 Tara Kamalaksha Nayak & Others Vs. Shri.Rajshekar Hanumanthappa Kalal & Others undertaking given to the Court by or on behalf of a party to a civil proceedings is, therefore, regarded as tantamount to a breach of injunction although the remedies were not always identical. For the purpose of enforcing an undertakingthat undertaking is treated as an order so that an undertaking, if broken, would involve the same consequences on the persons breaking that undertaking as would their disobedience to an order for an injunction. It is settled law that breach of aninjunction or breach of an undertaking given to a court by a person in a civil proceeding on the faith of which the court sanctions a particular course of action is misconduct amounting to contempt. The remedy in such circumstances may be in the form of a direction to the contemnor to purge the contempt or a sentence imprisonment or fine or all of them. On the facts and circumstances of this case in the light of our finding that there was a breach of the undertaking we think that mere imposition of imprisonment or fine will not meet the ends of justice. There will have to be an order to purge 19 Date of Order: 11.04.2017 CCC No.100055/2017 Tara Kamalaksha Nayak & Others Vs. Shri.Rajshekar Hanumanthappa Kalal & Others the contempt by directing the first respondent- contemnor to deliver vacant possession immediately and issuing necessary further and consequential directions for enforcing the same.
12. In the foregoing circumstances, we find the first respondent guilty of committing contempt by willful disobedience of the undertaking given by him in this Court and accordingly we convict him and sentence him to pay a fine of Rs.500 within the period of four weeks, failing which he shall suffer simple imprisonment for one month, and also direct him to deliver vacant possession of the premises forthwith to the petitioner to the extent possible by him. We further direct the District Magistrate, Thane, to evict all those who are in physical possession of the property including the 2nd respondent and his men and if necessary with police help and give vacant possession of the premises to the petitioner forthwith."20
Date of Order: 11.04.2017 CCC No.100055/2017 Tara Kamalaksha Nayak & Others Vs. Shri.Rajshekar Hanumanthappa Kalal & Others
18. Again in a latest judgment, in the case of Board of Trustees of the Port of Mumbai Vs. Nikhil N.Gupta and Another, (2015) 10 SCC 139, the Hon'ble Apex Court held:
" The principles relating to Contempt of Court are clear. The definition of "Civil Contempt" includes willful breach of an undertaking given to a Court. Public interest requires that solemn undertakings given to a Court with the intention of obtaining any benefit should not be breached willfully. The breach of solemn undertaking given to a Court is a serious matter to be sternly dealt with.
At the time when the special leave petition was dismissed by the Supreme Court giving time to the respondent to vacate the premise, the respondents never raised the plea that parties are in occupation of the premises and they cannot be removed from the building. The court exercising contempt jurisdiction is primarily concerned with the question of contumacious conduct of the party who is alleged to have committed default in 21 Date of Order: 11.04.2017 CCC No.100055/2017 Tara Kamalaksha Nayak & Others Vs. Shri.Rajshekar Hanumanthappa Kalal & Others complying with the directions in the judgment or order. The material on record that the dispute between the parties had been adjudicated and had attained finality and it is not open to the respondents to go beyond the orders.
The respondents who were the lessees were allowed to continue in the demised premises. It is not known, as to how the obstructionists i.e., the third parties can claim that they are in occupation of the premises on their own right. It took nearly about three decades for the petitioner Port Trust to obtain the decree of eviction. When the dispute relating to lease had attained finality, the obstructionists have no right to continue in occupation and cannot have any right to continue in occupation. In the above facts and circumstances, the case put up by the obstructionists is a clear abuse of process of law. The petitioner Port Trust cannot undergo or deal of another round of litigation against the obstructionists who can have no better right to be in occupation than that of the respondents. "22
Date of Order: 11.04.2017 CCC No.100055/2017 Tara Kamalaksha Nayak & Others Vs. Shri.Rajshekar Hanumanthappa Kalal & Others
19. Under these circumstances, we hold all the three accused respondents guilty of committing the contempt of this Court's order dated 25th November 2015 passed in Review Petition No.100096 of 2015 in RSA No.5972 of 2013 and the order dated 27th August 2015 dismissing RSA No.5792 of 2013.
20. Before coming to the sentence part of this case, to first ensure the compliance on the part of the accused- respondents, we direct the Executing Court below of Fifth Additional Civil Judge and JMFC, Belagavi, who is dealing with the Execution Case No.38 of 2014, Shri.Kamalaksha S/o. Govardhan Nayak Vs. Sri.Rajshekar S/o. Hanumanthappa Kalal, to immediately take steps with the help of police aid to get the suit shop in question situated at CTS No.10699, Nehru Nagar, Old P.B. Road, Belagavi evicted and hand-over the peaceful possession to the complainants-the legal representatives of Mr.Kamalaksha Govardhan Nayak, within 23 Date of Order: 11.04.2017 CCC No.100055/2017 Tara Kamalaksha Nayak & Others Vs. Shri.Rajshekar Hanumanthappa Kalal & Others forty-eight hours from now. The compliance report be submitted to this Court on 17th April 2017.
List this case again on 17th April 2017. The order passed by us today may be communicated to the said Executing Court below forthwith by fax.
The concerned police officials and the authorities of the Excise Department including the Deputy Commissioner are also equally bound to ensure the peaceful and meticulous compliance of this Order.
The respondents shall again remain present before this Court on 17th April 2017.
Sd/-
JUDGE Sd/-
JUDGE RK/-