Gujarat High Court
Nareshbhai Hathising Shah & 8 vs Dinaben Jitendrabhai Thakar & 18 on 14 March, 2014
Bench: M.R. Shah, R.P.Dholaria
C/CA/1094/2013 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (FOR ORDERS) NO. 1094 of 2013
In FIRST APPEAL NO. 1996 of 2008
For Approval and Signature:
HONOURABLE MR.JUSTICE M.R. SHAH Sd/
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA Sd/
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1. Whether Reporters of Local Papers may be allowed to see Yes
the judgment ?
2. To be referred to the Reporter or not ? Yes
3. Whether their Lordships wish to see the fair copy of the No
judgment ?
4. Whether this case involves a substantial question of law as to No
the interpretation of the constitution of India, 1950 or any
order made thereunder ?
5. Whether it is to be circulated to the civil judge ? No
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NARESHBHAI HATHISING SHAH & 8....Applicant(s)
Versus
DINABEN JITENDRABHAI THAKAR & 18....Respondent(s)
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Appearance:
MR SHALIN MEHTA, SR ADVOCATE with MS VIDHI J BHATT, ADVOCATE for Applicant(s) No. 1 9
MR DHAWAN JAYSWAL, AGP for the Respondent(s) No. 19
MR BOMI H SETHNA, ADVOCATE for the Respondent(s) No. 6
MR IH SYED, ADVOCATE for the Respondent(s) No. 11
MR KG VAKHARIA, Sr. ADVOCATE with MJ PARIKH, ADVOCATE for the Respondent(s) No. 1 5
MR SHAKTI S JADEJA, ADVOCATE for the Respondent(s) No. 9 10
MS SRUSHTI A THULA, ADVOCATE for the Respondent(s) No. 8
MS TRUSHA K PATEL, ADVOCATE for the Respondent(s) No. 12 15
MS VARSHA BRAHMBHATT, ADVOCATE for the Respondent(s) No. 18
RULE SERVED for the Respondent(s) No. 16 17
RULE UNSERVED for the Respondent(s) No. 7
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 14/03/2014
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) [1.0] At the outset it is required to be noted that present case is a Page 1 of 43 C/CA/1094/2013 CAV JUDGMENT glaring example of taking the interim order / injunction granted by the High Court and selling the land in absolute breach of the injunction granted by this Court and it shows that the concerned opponents more particularly opponent No.11 has no respect of the Court and the Court's order and as such the opponent No.11 has changed the story / stand from time to time and as such played game with the Court and the court proceedings.
[2.0] Present application has been preferred by the applicants herein - original appellants - original plaintiffs to initiate appropriate proceedings against the opponent Nos.1 to 6 and 11 for committing the breach of this Court's order/interim order dated 06.10.2010 passed in Civil Application No.4816/2008 in First Appeal No.1996/2008, under the provisions of the Contempt of Courts Act. It is also further prayed to quash and set aside the registered sale deed dated 22.11.2012 [Annexure C] executed by opponent No.6 herein as a power of attorney holder of opponent No.11 [original owner of the lands in question] in favour of opponent Nos.1 to 5 for sale of land bearing survey No.380 admeasuring about 5,80,000 sq. meter and to declare that the aforesaid registered sale deed dated 22.11.2012 executed by the opponent No.6 herein as a power of attorney holder of opponent No.1 in favour of opponent Nos.1 to 5 herein for sale of the land bearing survey No.380 admeasuring 5,80,000 sq. meter is void as the same is in the teeth of the High Court stay order dated 06.10.2010 passed in Civil Application No.4816/2008 in First Appeal No.1996/2008.
[3.0] Facts leading to the present civil application and the chronological dates of events which are necessary to appreciate how the concerned respondents more particularly the opponent No.11 herein has played the mischief and which are necessary while deciding the present application Page 2 of 43 C/CA/1094/2013 CAV JUDGMENT in nutshell are as under:
[3.1] That the applicants herein - original appellants - original plaintiffs instituted Special Civil Suit No.51/2008 in the Court of learned Principal Senior Civil Judge, Ahmedabad (Rural) for specific performance of the registered Agreement to Sell dated 25.08.2006 for sale of the suit lands which was in favour of the applicants herein - original appellants as well as to declare the Agreements to Sale / banakhats executed in favour of respective defendants, after the registered Agreement to Sell dated 25.08.2006 as null and void and also to declare and/or quash and set aside the collusive consent decree dated 13.07.2007 obtained in Special Civil Suit No.151/2007 and also prayed for the permanent injunction. It was the case on behalf of the original plaintiffs that the compromise decree passed by the learned 5th Additional Senior Civil Judge, Ahmedabad (Rural) in Special Civil Suit No.151/2007 between opponent Nos.12 to 15 herein - original plaintiffs of the said suit and the present opponent Nos.7 to 10 herein [original defendants of that suit] on the basis of a settlement/compromise dated 12.07.2007 stated to have been executed between them is a fraud and is collusive decree obtained. That by judgment and decree dated 13.07.2007, the learned trial Court has dismissed the said suit.
[3.2] Feeling aggrieved and dissatisfied with the judgment and decree passed by the learned 5th Additional Senior Civil Judge, Ahmedabad (Rural) in Special Civil Suit No.151/2007, the applicants herein - original appellants - original plaintiffs have preferred First Appeal No.1996/2008 and the same has been admitted and pending for final disposal. That in the First Appeal, the applicants herein submitted Civil Application No.4816/2008 for interim relief/order during the pendency and final disposal of the First Appeal and prayed for the following Page 3 of 43 C/CA/1094/2013 CAV JUDGMENT interim reliefs.
"6(A) Pending admission and final hearing of the First Appeal, Your Lordships may be pleased to stay the operation and implementation of the compromise decree dated 19.7.2007 entered in and recorded by the learned 5 th Additional Senior Civil Judge, Ahmedabad (Rural) in Special Civil Suit No.151/2007; (B) Pending admission and final hearing of the First Appeal, Your Lordships may be pleased to restrain the present opponents from transferring, assigning, alienating or in any manner dealing with the various parcels of land referred to in the Memo of the First Appeal;
(C) Pending admission and final hearing of the First Appeal, Your Lordships may be pleased to stay the operation and implementation of the registered Sale Deed dated 14.9.2007 executed by the opponents No.1 to 5 in favour of the present opponent No.11 for sale of land being Revenue Survey No.538 admeasuring 8300 Sq. meters of village Goraj, Taluka Sanand, District and SubDistrict Ahmedabad; and That the aforesaid civil application initially came up for hearing before the Division Bench on 17.04.2008 and the Division Bench issued the Rule in the aforesaid civil application making it returnable on 19.06.2008 and granted the adinterim stay in terms of aforesaid paras 6(A) and 6(B). That thereafter, after bipartite hearing and hearing the learned advocate appearing on behalf of respective parties, the Division Bench by order dated 06.10.2010 finally disposed of the said civil application and submit the adinterim relief granted earlier till the final disposal of the main first appeal. Thus, it is an admitted position that during the pendency and final disposal of the main first appeal, opponent Nos.7 to 18 herein are restrained from transferring, assigning or in any manner dealing with the suit properties/various parcels of land referred to in the memo of first appeal. Not only that even the Division Bench has granted the interim stay in terms of paras 6(A) i.e. stay of operation and implementation of the compromise decree dated 13.07.2007 passed by the learned 5th Additional Senior Civil Judge, Ahmedabad (Rural) in Special Civil Suit No.151/2007 and the said Page 4 of 43 C/CA/1094/2013 CAV JUDGMENT interim injunction / interim order / stay has been continued till date.
[3.3] It is the case on behalf of the applicants herein - original appellants - original plaintiffs that despite the above interim stay / injunction granted by the Division Bench of this Court and during the continuance of the aforesaid interim injunction, the opponent No.6 herein as power of attorney holder of the opponent No.11 herein has executed one registered sale deed dated 22.11.2012 in favour of opponent Nos.1 to 5 herein for a sale consideration of Rs.7,97,32,600/ collusively. Therefore, the applicants herein - original appellants - original plaintiffs have preferred the present civil application for the aforesaid reliefs.
Subsequent developments and chronological dates and events after filing of the present application
(a) That the Division Bench passed the first order on 18.02.2013, directing the Registry to issue notice upon the opponents making it returnable on 11.03.2013. That thereafter at the request of the learned advocate appearing on behalf of the opponent Nos.1 to 5 herein [subsequent purchasers], present application was adjourned to 02.04.2013. That thereafter the matter was adjourned to 09.04.2013.
(b) That thereafter the matter was adjourned to 09.04.2013. An affidavit in reply was filed by opponent No.2 - one of the co purchaser on 08.04.2013 submitting that they were not aware of any interim order passed by the Court in the aforesaid civil application. It was also stated that they have not willfully disobeyed the orders of this Court. He tendered unconditional apology for himself as well as on behalf of opponent Nos.1 to 5.
(c) That an affidavit in reply was filed on behalf of the Page 5 of 43 C/CA/1094/2013 CAV JUDGMENT opponent No.11 herein - original owner affirmed by him on 01.04.2013. In the said affidavit in reply he tendered unconditional apology before this Court. He also stated that he is ready and willing to purge the contempt alleged against him without prejudice. It was further stated in the said reply that opponent Nos.1 to 6 herein had filed Special Civil Suit No.1025/2011 for specific performance of the contract in the Court of learned Principal Senior Civil Judge, Ahmedabad (Rural) with regard to the land bearing Survey No.380 situated at village Goraj, Taluka Sanand, District Ahmedabad [disputed land in question]. He further stated that a compromise was arrived at in the aforesaid suit and consent decree came to be passed on 11.02.2012 in aforesaid Special Civil Suit No.1025/2011 by the Civil Court. It was further stated that in pursuance to the aforesaid consent decree dated 11.02.2012 passed in Special Civil Suit No.1025/2011, the sale deed in question dated 22.11.2012 came to be executed by opponent No.6 herein - power of attorney holder. It was further stated that opponent No.6 - power of attorney holder, in mistaken belief, has executed sale deed on the basis of the aforesaid order dated 11.02.2012 passed by the Civil Court. He further stated that he is not a signatory to the aforesaid sale deed dated 22.11.2012 and had not gone to the office of the Mamlatdar or SubRegistrar and it is power of attorney holder - opponent No.6 herein who had executed the sale deed. In para 9 of the said affidavit in reply, he again reiterated that he is ready to purge the contempt, though, infact, he is not signatory to the sale deed in question. He has further stated in the said affidavit in reply that as soon as he learnt about the execution of the sale deed by power of attorney holder, he had issued a public notice through his advocate in local daily newspaper on 16.01.2013 inter alia stating that the persons named Page 6 of 43 C/CA/1094/2013 CAV JUDGMENT in the said notice which mentions name of opponent No.6 herein also, were doing job with him and that they are relieved from service on 31.12.2012. It was further mentioned in the said notice that he has not executed any power of attorney document in favour of said persons and if any power of attorney is executed then also the same may be treated as cancelled and the general public was cautioned not to enter into any transaction with the said persons as his power of attorney holder. The aforesaid conduct on the part of opponent No.11 shall be dealt with hereinafter. He further stated in the said affidavit in reply that thereafter opponent No.16 herein - wife of opponent No.11 had also given public notice in local daily newspaper on 22.03.2013 inter alia stating that Jayeshbhai Laljibhai Parmar [it should be Jayantbhai] and Shri Haribhai Arvindbhai Solanki were doing job at opponent No.11 and that the aforesaid persons are relieved from their service on 31.12.2012. He further stated that in the aforesaid public notice it was also mentioned that the husband of the opponent No.16 [opponent No.11 herein] is suffering from eye disease and that he is not able to properly read and that his signature has been misused and that the said persons have committed breach of trust and have cheated the opponent No.16. In para 13, he stated that he is suffering from eye disease and is having zero vision in the right and only 30% vision in left eye. Thereafter, in para 14, he again tendered unconditional apology and requested that no proceedings under the Contempt of Courts Act be initiated against him.
(d) That thereafter the present civil application came up for hearing before the Division Bench of this Court on 24.06.2013. However, nobody appeared on behalf of opponent No.6 though served and therefore, the Division Bench passed an order directing opponent No.6 herein to remain personally present on 10.07.2013.
Page 7 of 43 C/CA/1094/2013 CAV JUDGMENTOnly thereafter the opponent No.6 appeared before this Court through his advocate and filed the affidavit in reply.
(e) That thereafter the affidavit in rejoinder was filed by the applicants dated 02.05.2013 in response to the affidavit in reply dated 08.04.2013 of opponent No.2 herein . An affidavit in reply was also filed on behalf of opponent No.6 herein - power of attorney holder of opponent No.11, who executed the registered sale deed in favour of opponent Nos.1 to 5 herein affirmed by him on 17.07.2013. He tendered unconditional apology. He also stated that he is ready and willing to purge the contempt alleged against him without prejudice. He denied that he is guilty of committing breach of this Court's order dated 06.10.2010 as he was not aware about the said order. He has stated in the said affidavit in reply that upto the year 2012, he was working with the opponent No.11 herein as a driver and therefore, in the month of November 2012, opponent No.11 had informed him that his health is not well and therefore, vide special power of attorney dated 20.11.2012, opponent No.11 appointed him as power of attorney holder for all works mentioned in the said power of attorney for the land bearing Account No.476 admeasuring 580000 Hectare - Sq. meter agricultural land out of the land bearing Block/Survey No.380 admeasuring 611500 Hectare - Sq. meter situated in village Goraj, Taluka Sanand, District Ahmedabad. He specifically stated in the said affidavit in reply that at the time of appointing him as power of attorney holder, opponent No.11 has not informed him regarding the order dated 06.10.2010 passed by this Court and therefore, he was not aware about the order passed by this Court. He has further stated in the said reply that he has executed sale deed dated 22.11.2012 in favour of opponent Nos.1 to 5 herein as per the instruction of opponent No.11 herein and opponent No.11 Page 8 of 43 C/CA/1094/2013 CAV JUDGMENT received entire sale consideration amount worth of Rs.7,97,32,600/. He further stated that he is neither beneficiary of the same nor he has gained anything from opponent No.11 as well as opponent Nos.1 to 5. He further stated that he is ready and willing to give his consent for cancellation of registered sale deed dated 22.11.2012 executed in favour of opponent Nos.1 to 5 and he has no objection if the sale deed dated 22.11.2012 is quashed and set aside.
(f) That thereafter the present application was taken up for hearing on 27.08.2013. At that time opponent Nos.9 to 11 were represented through Shri Kavina, learned Counsel. After hearing the learned advocate appearing on behalf of respective parties, the Division Bench observed that the sale deed executed on 22.11.2012 is in contravention to the interim order passed by this Court in Civil Application No.4816/2008 vide order dated 17.04.2008 read with the order dated 06.10.2010. The Division Bench further observed in the order dated 27.08.2013 that they would have further considered the matter, however, Shri Kavina, learned Counsel for opponent No.11 stated that opponent No.11 is ready to purge the contempt by returning the consideration and cancellation of the document. However, opponent Nos.1 to 5 herein who are purchasers of the property are agreeable or not may be ascertained from Shri M.J. Parikh, learned advocate appearing on behalf of opponent Nos.1 to 5. Shri Parikh, learned advocate appearing for opponent Nos.1 to 5 stated that he will inquire from his client as to whether they are agreeable to cancellation of document in lieu of refund of the consideration. In view of the above Shri Kavina, learned Counsel appearing on behalf of opponent No.11 sought time to place the schedule for refund of the amount and the matter was adjourned to 11.09.2013.
Page 9 of 43 C/CA/1094/2013 CAV JUDGMENT(g) On 11.09.2013, opponent No.11 personally remained present. He stated that he wants time to submit the schedule for refund of the money. He stated that out of total consideration received by him, some amount is spent and some amount is invested. However, he did not disclose the source of investment. He stated that appropriate affidavit shall be filed within one week. Thereafter again the matter was taken up for further hearing on 11.10.2013 and at that time opponent No.11 changed his advocate and in place of Shri Kavina, learned Counsel, Shri S.I. Nanavati, learned Counsel appeared on behalf of opponent No.11. Shri Nanavati, learned Counsel appearing on behalf of opponent No.11 stated that opponent No.11 is desirous to purge the contempt by depositing the amount of consideration and also the cancellation deed to be executed by him. Considering the said statement, the Division Bench adjourned the matter to 26.11.2013 observing that modalities may be reported to this Court on the next date i.e. 26.11.2013.
(h) That one another affidavit came to be filed by opponent No.11 affirmed by him on 17.12.2013 again reiterating that he is ready and willing to purge the contempt alleged against him. He has stated that the sale transaction was executed through power of attorney holder due to oversight and without understanding the implication of the order dated 06.10.2010 passed by this Court.
(i) That thereafter the present application was taken up for further hearing on 18.12.2013. At this stage it is required to be noted that considering his earlier stand by opponent No.11 that he has so many other lands/properties which are not known to him and by selling the said properties, he may deposit the sale consideration and therefore, the Division Bench of this Court passed the order to hold inquiry by the Talati cum Mantri / Mamlatdar.
Page 10 of 43 C/CA/1094/2013 CAV JUDGMENTHowever, it is required to be noted that thereafter no fruitful things have come as it is found that in most of the lands there are other persons in occupation either under the Tenancy Act and/or under other Acts and the same are not having any clear title.
(j) That thereafter the present civil application was heard by this Court on 09.01.2014. We heard Shri Nanavati, learned Counsel appearing on behalf of opponent No.11. Thereafter, at his request to make a specific statement as to within how much time he will deposit the sale consideration of Rs.7,97,32,600/, matter was adjourned to 15.01.2014.
(k) That on 15.01.2014, opponent No.11 changed and replaced Shri Nanavati, learned Counsel and Shri I.H. Syed, learned advocate stated that now he has instructions to appear on behalf of opponent No.11. Taking note of the conduct on the part of opponent No.11 in changing lawyers from time to time, this Court observed that conduct of opponent No.11 in changing the lawyers is highly deprecated. This Court also noted that earlier thrice the opponent No.11 has changed the lawyer. This Court also noted that it is the prerogative of opponent No.11 to engage lawyer of his choice but the stage at which the opponent No.11 has changed the lawyer, deserves serious consideration. Shri Syed, learned advocate appearing on behalf of opponent No.11 asked for the adjournment / prayed for time to go through the papers and make submissions on behalf of opponent No.11 and therefore, on imposing the cost the matter was adjourned to 23.01.2014.
(l) That a further affidavit was filed by opponent No.2 requesting to decide the present application along with the main First Appeal by submitting that the applicants have filed the present appeal by suppressing the material fact of filing Special Civil Suit No.51/2008.
Page 11 of 43 C/CA/1094/2013 CAV JUDGMENT(m) A further affidavit was filed by opponent No.11 affirmed by him on 22.01.2014 again reiterating that he is ready and willing to purge the contempt alleged against him. However, in the said affidavit he came out with story that he is dependent on others due to his eye problem and that they have taken away most of the amounts of the sale consideration. He came out for the first time that he has tried his level best to refund the amount of sale consideration but has failed in all his attempts as there are various litigations in respect of various properties including the present one.
(n) That thereafter further affidavit in rejoinder was filed by the applicants herein and thereafter after hearing the learned advocate appearing on behalf of respective parties, this Court admitted the present application and issued the Rule against the opponents except opponent Nos.1 to 5 at this stage and thereafter the present application is heard finally by this Court. At this stage it is required to be noted that in the meantime and with a view to avoid the hearing of the present application and to delay the present proceedings and to get out of the interim injunction passed by this Court, and though on one hand repeatedly the opponent No.11 stated that he purges the contempt and/or wants to purge the contempt, made another attempt and filed Civil Application No.634/2014 in First Appeal No.1996/2008 to recall the order of admission of First Appeal No.1996/2008 dated 17.04.2008 as well as to recall the interim orders dated 17.04.2008 and the order dated 06.10.2010 passed in Civil Application No.4816/2008 and it was stated that unless and until the said application is heard, the hearing of the present application may be differed. However, though, the said application has nothing to do with the present proceedings, it is reported that by order dated 28.02.2014, the Page 12 of 43 C/CA/1094/2013 CAV JUDGMENT Division Bench has dismissed the said application [which shall be referred to hereinafter].
[4.0] Shri Shalin Mehta, learned Counsel appearing on behalf of the applicants has submitted that as such the opponent No.11 herein has admitted that the transaction / sale deed dated 22.11.2012 executed by opponent No.6 as his power of attorney and in favour of opponent Nos.1 to 5 herein is in breach of the injunction/interim order passed by this Court dated 06.10.2010 passed in Civil Application No.4816/2008 in First Appeal No.1996/2008. It is further submitted that even the opponent No.11 more than once and in different affidavits filed by him in the present proceedings has candidly stated on affidavit/oath that he is purging the contempt and/or he wants to purge the contempt. It is submitted that despite the above neither opponent No.11 is purging the contempt nor reversing the transaction which is in breach of the injunction nor even depositing the amount of sale consideration which is received by him as stated in the sale deed executed in favour of opponent Nos.1 to 5.
[4.1] It is further submitted by Shri Mehta, learned Counsel appearing on behalf of the applicants has submitted that as such the conduct of the opponent No.11 herein right from very beginning deserves serious consideration. It is submitted that the entire conduct of opponent No.11 is suggestive that he has no respect for the courts and/or the law and the legal proceedings. It is submitted that as such opponent No.11 is in habit of executing power of attorney/special powers of attorney in favour of different persons with respect to the very land/s in question and the moment the concerned power of attorney acts as per the special power of attorney and enters into any transaction for and on his behalf, however as a power of attorney, thereafter the opponent No.11 has Page 13 of 43 C/CA/1094/2013 CAV JUDGMENT changed the stand and has executed special power of attorney in favour of one another person who again enters into the transaction as power of attorney and thereafter again he has executed another power of attorney in favour of another person who has again appeared in the suit on his behalf and has obtained the consent decree. It is submitted that therefore as such respondent No.11 is in habit of executing different special powers of attorney in favour of different persons with respect to the very property/properties and pocketing the money.
[4.2] It is further submitted that even in the present proceedings also opponent No.11 has changed the stand in different affidavits in reply. It is submitted that in the first affidavit in reply dated 01.04.2013 though the opponent No.11 tendered unconditional apology and stated that he is ready and willing to purge the contempt, however, he came out with a case that in the suit instituted by the opponent Nos.1 to 5 herein in the Court of learned Principal Senior Civil Judge, Ahmedabad (Rural) being Special Civil Suit No.1025/2011, there was a compromise arrived at in the aforesaid suit and consent decree came to be passed and on the basis of the said consent decree, opponent No.6 - power of attorney had executed the sale deed dated 22.11.2012. It is further submitted that he is not signatory to the aforesaid sale deed dated 22.11.2012 and had not gone to the office of Mamlatdar or SubRegistrar and whatever is done is done by his power of attorney - opponent No.6. It is submitted that therefore in the affidavit in reply he has tried to throw the burden upon opponent No.6. It is further submitted that even in the said affidavit in reply he has gone to the extent stating that a public notice was issued by him in the local newspaper dated 16.01.2013 inter alia stating that the persons named in the said notice which mentions name of opponent No.6 herein also, were doing job with him and that they are relieved from service on 31.12.2012. It is submitted that in the said notice he had Page 14 of 43 C/CA/1094/2013 CAV JUDGMENT come out with a case that he has not executed any power of attorney document in favour of said persons and if any power of attorney is executed then also the same may be treated as cancelled. It is further submitted that in the subsequent affidavit in reply he has stated that whatever is done is done by the opponent No.6 as power of attorney, however, by mistake and without understanding the implication of execution of the sale deed dated 22.11.2012 in breach of the injunction/interim order passed by this Court. It is further submitted by Shri Mehta, learned Counsel appearing on behalf of the applicants that therefore on one hand the opponent No.11 has tried to throw the burden upon opponent No.6 and on the other hand he has created a story by giving a public notice that no document/power of attorney is executed in favour of opponent No.6 and if there is any, the same may be treated as cancelled. It is submitted that as such the aforesaid public notice/s issued by the opponent No.11 and his wife is a clear design to get out of the consequences of executing the sale deed / selling the property in favour of opponent Nos.1 to 5 herein which is in breach of injunction/interim order passed by this Court. It is submitted that knowing fully well that the power of attorney executed in favour of the opponent No.6 was a special power of attorney with respect to the land in question and after execution of the sale deed by the opponent No.6 as power of attorney no purpose would be served in cancelling the power of attorney which was a special power of attorney and whatever the act was required to be done by the power of attorney is performed and done. Thereafter, with a malafide intention and part of his design, the aforesaid public notices have been given. It is submitted that as such in the subsequent affidavits in reply, he has not disputed that he has not executed any special power of attorney in favour of opponent No.6. It is submitted that on the contrary he has thrown the burden upon opponent No.6 by submitting that opponent No.6 has executed the sale deed as his Page 15 of 43 C/CA/1094/2013 CAV JUDGMENT power of attorney by mistake.
[4.3] It is further submitted by Shri Mehta, learned Counsel appearing on behalf of the applicants that though on one hand the opponent No.11 herein has time and again stated in different affidavits in reply that he wants to purge the contempt and repay the amount to opponent Nos.1 to 5 and wants to reverse the transaction. However, at no point of time, he has deposited any amount. It is submitted that on the contrary false promises have been given before the Court as and when the proceedings are taken up and the matter is heard and whenever it is found that he has to reverse the transaction and/or repay the amount, opponent No.11 has changed the senior advocate/advocate appearing on his behalf. It is further submitted that even opponent No.11 has gone to the extent saying that whatever the amount is received as sale consideration by execution of sale deed in favour of opponent Nos.1 to 5, the entire amount has been taken away, misused and/or misappropriated by his men who are working with him by misusing his illhealth and eye vision. It is submitted that therefore the bonafides of the opponent No.11 are not clean and at every stage and every time he has tried to mislead the Court and has taken the court's proceedings for granted.
[4.4] It is further submitted that even the unconditional apology tendered by the opponent No.11 lacks bonafide. It is submitted that the apology tendered by opponent No.11 is lacking penitence, contrition and regret. It is submitted that the aforesaid conduct of opponent No.11 shows his total disregard and consistent violation of the court's order. It is submitted that despite the opponent No.11 has tendered unconditional apology and even has stated on oath that he wants to purge the contempt. He has even tried to justify the action by throwing burden upon the opponent No.6 and has executed the sale deed in Page 16 of 43 C/CA/1094/2013 CAV JUDGMENT favour of opponent Nos.1 to 5 as his power of attorney. It is submitted that as such opponent No.6 is the driver of opponent No.11 and by executing the special power of attorney in his favour, opponent No.6 has become the tool. It is submitted that as such opponent No.6 in his affidavit in reply has specifically admitted that whatever is done by him as power of attorney of opponent No.11, is as such done with the knowledge of opponent No.11 and entire amount of sale consideration is received by opponent No.11 and as such he has not gained anything. It is submitted that therefore opponent No.11 is the mastermind.
[4.5] It is further submitted that even opponent Nos.1 to 5 and even opponent No.6 are part of the entire conspiracy to get the sale deed executed in favour of opponent Nos.1 to 5, which is in breach of the interim order / injunction passed by this Court. It is submitted that in the present case firstly the opponent No.11 files a caveat in the Court of learned Principal Senior Civil Judge against the opponent Nos.1 to 5 submitting that opponent Nos.1 to 5 are likely to file a suit and pray for injunction which would be against his interest and thereafter the opponent Nos.1 to 5 files a Special Civil Suit No.1025/2011 in the Court of learned Principal Senior Civil Judge, Ahmedabad (Rural) against opponent No.11 and others for specific performance of the alleged Agreement to Sell of 1998 and in the said suit the opponent No.11 appears through another power of attorney who admits the suit and agrees for decree for specific performance of the alleged Agreement to Sell of 1998 and they obtained the collusive consent decree and thereafter the opponent No.6 executes the sale deed in favour of opponent Nos.1 to 5 herein as the power of attorney of opponent No.11. It is submitted that even in the sale deed executed in favour of opponent Nos.1 to 5, it is stated that sale consideration of Rs.7,97,32,600/ is paid and the cheque numbers have been given. However, no further Page 17 of 43 C/CA/1094/2013 CAV JUDGMENT particulars with respect to the date of payment has been stated except with respect to one payment. It is submitted that therefore as such opponent Nos.1 to 5 have also obtained the collusive consent decree in Special Civil Suit No.1025/2011 and therefore, they are also party to the fraud/conspiracy and therefore, they are also liable to be prosecuted/punished under the Contempt of Courts Act and/or for breach of injunction under Order 39 Rule 2(A) of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC") and the transaction/sale deed dated 22.11.2012 executed in favour of opponent Nos.1 to 5 which is in breach of interim order passed by this Court is required to be quashed and set aside and the said transaction is required to be reversed.
[4.6] It is further submitted by Shri Mehta, learned Counsel appearing on behalf of the applicants that as such all efforts are made by the opponents more particularly opponent Nos.1 to 6 and opponent No.11 to delay the present proceedings, one after another false promises have been given to this Court as well as the application/s have been filed. Relying upon the following decisions of this Court as well as Hon'ble Supreme Court, it is requested to take a serious view in the matter and take strict action against opponent Nos.1 to 6 and 11 under the Contempt of Courts Act and/or for breach of injunction under Order 39 Rule 2(A) of the CPC and suitably punish them and also impose the heavy cost upon them and also to quash and set aside the sale deed dated 22.11.2012 executed in favour of opponent Nos.1 to 5 herein which is absolutely in breach of injunction / interim order passed by this Court and/or direct the concerned opponents to reverse the said transaction/sale deed.
1. (1993)2 SCC 533 Major Genl. B.M. Bhattacharjee (Retd.) & Anr. v. Russel Estate Corporation & Anr.
Page 18 of 43 C/CA/1094/2013 CAV JUDGMENT2. (1995)6 SCC 50 Surjit Singh & Ors. v. Harbans Singh & Ors.
3. (2008)8 SCC 348 Arjan Singh v. Punit Ahluwalia & Ors.
4. (2008)14 SCC 561 Patel Rajnikant Dhulabhai & Anr. v. Patel Chandrakant Dhulabhai & Ors.
5. (2012)8 SCC 384 Vidur Impex & Traders Private Limited & Ors. v. Tosh Apartments Private Limited & Ors.
6. (2013)6 SCALE 272 Jehal Tanti & Ors. v. Nageshwar Singh (Dead) through LRs
7. 2013(1) GLH 343 Bharatbhai Jivrajbhai v. Chaganbhai Samabhai & Ors.
[5.0] Shri I.H. Syed, learned advocate has appeared on behalf of opponent No.11 herein.
It is required to be noted at this stage that even while tendering unconditional apology and agreeing to purge the contempt Shri Syed, learned Counsel appearing on behalf of opponent No.11 has submitted that as such the First Appeal itself is not maintainable as the appellants have suppressed the material fact. It is further submitted that once the first appeal itself is not maintainable, any interim order passed in such first appeal is non est and not an order in the eye of law. It is submitted that therefore the interim order dated 06.10.2010 passed in Civil Application No.4816/2008 would be wholly without jurisdiction. He has also further submitted that as such first appeal may be heard first and thereafter to consider the present application. He has also requested to grant some further time to the opponent No.11 to purge the contempt.
[5.1] He has stated at the bar and candidly admitted that as such a Page 19 of 43 C/CA/1094/2013 CAV JUDGMENT registered sale deed executed in favour of opponent Nos.1 to 5 is in teeth and in breach of interim order/injunction passed by this Court in Civil Application No.4816/2008 and that he has no legs to stand and he wants to purge the contempt. He has further stated that the amount of sale consideration which is received is spent and it is not possible for him to manage for the huge amount of Rs.7,97,32,600/. It is submitted that the opponent No.11 is desirous of even reversing the transaction/sale deed which has been executed in favour of opponent Nos.1 to 5 by repaying the entire amount of sale consideration. He has stated at the Bar that opponent No.11 is desirous to pay Rs.65 lacs upfront and the balance amount of sale consideration by installments. He has further stated that for the remaining sale consideration of Rs.6,97,32,600/ his client has come with 14 different cheques upto month of June 2014, in favour of opponent No.2 herein. It is submitted that therefore considering the last offer made by opponent No.11 herein in his last affidavit dated 05.03.2014, it is requested to accept the unconditional apology tendered by his client and to drop the present proceedings and not to punish them.
Making above submissions and above request, it is requested to drop the present proceedings.
[6.0] Shri K.G. Vakharia, learned Senior Advocate has appeared on behalf of opponent Nos.1 to 5. It is submitted that as such his clients - opponent Nos.1 to 5 have not committed any contempt and/or purged the injunction/interim order passed by this Court. It is submitted that as such opponent Nos.1 to 5 herein are not even party to the main first appeal. It is further submitted that even in the application there are no specific allegations against opponent Nos.1 to 5 that opponent Nos.1 to 5 have committed breach of injunction/interim order. That even his clients are cheated and/or duped by the opponent No.11 herein. It is Page 20 of 43 C/CA/1094/2013 CAV JUDGMENT submitted that opponent Nos.1 to 5 are the bonafide purchasers who have paid the full sale consideration of Rs.7,97,32,600/. Shri Vakharia, learned Counsel appearing on behalf of opponent Nos.1 to 5 has stated at the Bar that the opponent Nos.1 to 5 as such have no objection in reversing the transaction and/or cancelling the sale deed dated 22.11.2012 which is in favour of opponent Nos.1 to 5 provided they are repaid the entire amount of sale consideration with compensation [by way of interest]. It is submitted that unless and until the entire sale consideration is repaid to opponent Nos.1 to 5 by opponent No.11 herein, opponent Nos.1 to 5 herein are not agreeable to reverse the transaction which is in their favour. It is submitted that as such opponent No.11 is making false commitments and/or promises to repay the amount and any offer made by opponent No.11 lacks bonafide. It is submitted that as such as there was no injunction against the opponent Nos.1 to 5, there is no question of committing any breach of injunction by opponent Nos.1 to 5 and therefore, it is requested to dismiss the present application insofar as opponent Nos.1 to 5 are concerned.
[7.0] Shri Bomi Shethna, learned advocate has appeared on behalf of opponent No.6 herein. An affidavit in reply is filed on behalf of opponent No.6. It is the case on behalf of opponent No.6 that he was serving as a driver with opponent No.11 upto November 2012. That therefore, the opponent No.11 executed the special power of attorney in favour of opponent No.6 and as power of attorney holder of opponent No.11 and with the knowledge of opponent No.1 and as such as per his instruction he executed the sale deed in favour of opponent Nos.1 to 5. It is further stated by the opponent No.6 in affidavit in reply filed by him that the entire sale consideration is received by opponent No.11 alone and that as such he has not gained anything and/or is not even beneficiary to any amount out of the sale consideration. It is required to be noted that at Page 21 of 43 C/CA/1094/2013 CAV JUDGMENT this stage the opponent No.6 has also changed the advocate time and again in the present proceedings.
[8.0] Ms. Trusha Patel, learned advocate has appeared on behalf of the opponent Nos.12 to 15 herein. It is submitted that as such her clients are also cheated by opponent No.11 herein. It is submitted that as such in the earlier suit filed by her client being Special Civil Suit No.1025/2011 after pocketing the money, opponent No.11 entered into a consent terms and a consent decree came to be passed in their favour which was subject matter of the present civil suit. It is submitted that as such opponent No.11 is in habit of executing various and number of power of attorney and agreeing for consent terms and obtaining the consent decrees after pocketing the money. It is submitted that as such with respect to the very land, three different power of attorney are executed in the name of different persons and agreeing for consent decree in respective proceedings and executing the sale deeds. It is submitted that as such her clients were to file appropriate proceedings to initiate appropriate proceedings against opponent No.11 herein to punish him as, as such opponent No.11 has no respect for the courts, law and the legal proceedings. It is submitted that as such in the application there are no allegations against her clients and therefore, by mistake the Rule has been issued against opponent Nos.12 to 15 and therefore, it is requested to withdraw the showcause notice issued against her clients and to punish the opponent No.11.
[9.0] Now, in response to the last affidavit filed by opponent No.11 dated 05.03.2014 submitting undertaking that opponent No.11 proposes to refund and/or return the entire amount of sale consideration to opponent Nos.1 to 5 more particularly opponent No.2 by installments and is paying Rs.65 lacs by demand draft in favour of opponent No.2 Page 22 of 43 C/CA/1094/2013 CAV JUDGMENT and therefore, to accept unconditional apology tendered by him and permit him to purge the contempt is concerned, Shri Mehta, learned Counsel appearing on behalf of the applicants has submitted that as such all efforts are made by opponent No.11 to delay the proceedings. It is submitted that even the offer made in the affidavit dated 05.03.2014 lacks bonafide. It is submitted that as such all efforts are made by the opponent No.11 and others to delay the present proceedings and thereafter having failed in his efforts, he has come out with the affidavit dated 05.03.2014 and his offer to return the amount of sale consideration. It is submitted that as such the sale deed dated 22.11.2012 executed in favour of opponent Nos.1 to 5 is absolutely in breach of the interim order / injunction passed by this Court and even opponent No.11 has also admitted the same. It is, therefore, requested to suitably punish the opponent Nos.1 to 6 and 11 more particularly opponent No.11 under the Contempt of Courts Act and/or in exercise of powers under Order 39 Rule 2(A) of the Code of Civil Procedure, 1908 and to pass the order to quash and set aside the sale deed dated 22.11.2012 executed in favour of opponent Nos.1 to 5 which is in breach of interim order / injunction order passed by this Court dated 06.10.2010 in Civil Application No.4816/2008 and/or direct the concerned opponents to reverse the transaction/sale deed dated 22.11.2012 and to restore the position which was prevailing prior to the execution of the sale deed dated 22.11.2012.
[10.0]Heard the learned advocate appearing on behalf of the respective parties at length.
[11.0]Before considering the merits of the case on hand, firstly, the law on the Contempt of Courts is required to be considered and dealt with.
[11.1]In the case of Arundhati Roy v. State of Gujarat reported in Page 23 of 43 C/CA/1094/2013 CAV JUDGMENT 2002(2) GLH 372, in paras 1 to 3, the Hon'ble Supreme Court observed and held as under:
"1. 'Rule of Law' is the basic rule of governance of any civilised democratic polity. Our Constitutional scheme is based upon the concept of Rule of Law which we have adopted and given to ourselves. Everyone, whether individually or collectively is unquestionably under the supremacy of law. Whoever the person may be, however high he or she is, noone is above the law notwithstanding how powerful and how rich he or she may be. For achieving the establishment of the rule of law, the Constitution has assigned the special task to the judiciary in the country. It is only through the courts that the rule of law unfolds its contents and establishes its concept. For the judiciary to perform its duties and functions effectively and true to the spirit with which it is sacredly entrusted, the dignity and authority of the courts have to be respected and protected at all costs. After more than half a century of independence, the judiciary in the country is under a constant threat and being endangered from within and without. The need of the time is of restoring confidence amongst the people for the independence of judiciary. Its impartiality and the glory of law has to be maintained, protected and strengthened. The confidence in the courts of justice, which the people possess, cannot, in any way, be allowed to be tarnished, diminished or wiped out by contumacious behaviour of any person. The only weapon of protecting itself from the onslaught to the institution is the long hand of contempt of court left in the armoury of judicial repository which, when needed, can reach any neck howsoever high or far away it may be. In Re: Vinay Chandra Mishra (the alleged contemner) [AIR 1995 SC 2348] this Court reiterated the position of law relating to the powers of contempt and opined that the judiciary is not only the guardian of the rule of law and third pillar but in fact the central pillar of a democratic State. If the judiciary is to perform its duties and functions effectively and true to the spirit with which they are sacredly entrusted to it, the dignity and authority of the courts have to be respected and protected at all costs. Otherwise the very cornerstone of our constitutional scheme will give way and with it will disappear the rule of law and the civilized life in the society. It is for this purpose that the courts are entrusted with extraordinary powers of punishing those who indulge in acts, whether inside or outside the courts, which tend to undermine the authority of law and bring it in disrepute and disrespect by scandalising it. When the court exercises this power, it does not do so to vindicate the dignity and honour of the individual judge who is personally attacked or scandalised, but to uphold the majesty of the law and of the administration of justice. The foundation of the judiciary is the trust and the confidence of the people in its ability to deliver fearless and impartial justice. When Page 24 of 43 C/CA/1094/2013 CAV JUDGMENT the foundation itself is shaken by acts which tend to create disaffection and disrespect for the authority of the court by creating distrust in its working, the edifice of the judicial system gets eroded.
2. No person can flout the mandate of law of respecting the courts for establishment of rule of law under the cloak of freedoms of speech and expression guaranteed by the Constitution. Such a freedom is subject to reasonable restrictions imposed by any law. Where a provision, in the law, relating to contempt imposes reasonable restrictions, no citizen can take the liberty of scandalising the authority of the institution of judiciary. Freedom of speech and expression, so far as they do not contravene the statutory limits as contained in the Contempt of Courts Act, are to prevail without any hindrance. However, it must be remembered that the maintenance of dignity of courts is one of the cardinal principles of rule of law in a democratic set up and any criticism of the judicial institution couched in language that apparently appears to be mere criticism but ultimately results in undermining the dignity of the courts cannot be permitted when found having crossed the limits and has to be punished. This Court in In Re:
Harijai Singh & Another [1996 (6) SCC 466 has pointed out that a free and healthy Press is indispensable to the function of a true democracy but, at the same time, cautioned that the freedom of Press is not absolute, unlimited and unfettered at all times and in all circumstances. Lord Dening in his Book "Road to Justice"
observed that Press is the watchdog to see that every trial is conducted fairly, openly and above board but the watchdog may sometimes break loose and has to be punished for misbehaviour. Frankfurther, J. in Pennekamp v. Florida [(1946) 90 Led 1295 at p.1313] observed:
"If men, including Judges and journalists were angels, there would be no problems of contempt of Court.
Angelic Judges would be undisturbed by extraneous influences and angelic journalists would not seek to influence them. The power to punish for contempt, as a means of safeguarding Judges in deciding on behalf of the community as impartially as is given to the lot of men to decide, is not a privilege accorded to Judges. The power to punish for contempt of court is a safeguard not for Judges as persons but for the function which they exercise."
3. The law of contempt has been enacted to secure public respect and confidence in the judicial process. If such confidence is shaken or broken, the confidence of the common man in the Page 25 of 43 C/CA/1094/2013 CAV JUDGMENT institution of judiciary and democratic set up is likely to be eroded which, if not checked, is sure to be disastrous for the society itself."
[11.2]In the case of Maninderjit Singh Bitta v. Union of India & Ors. reported in (2012)1 SCC 273, in paras 19 to 23, 25 and 26, the Hon'ble Supreme Court observed and held as under:
"19. Under the Indian Law the conduct of the parties, the act of disobedience and the attendant circumstances are relevant to consider whether a case would fall under civil contempt or a criminal contempt. For example, disobedience of an order of a court simplicitor would be civil contempt but when it is coupled with conduct of the parties which is contemptuous, prejudicial and is in flagrant violation of the law of the land, it may be treated as a criminal contempt. Even under the English Law, the courts have the power to enforce its judgment and orders against the recalcitrant parties.
20. In exercise of its contempt jurisdiction, the courts are primarily concerned with enquiring whether the contemnor is guilty of intentional and wilful violation of the orders of the court, even to constitute a civil contempt. Every party to lis before the court, and even otherwise, is expected to obey the orders of the court in its true spirit and substance. Every person is required to respect and obey the orders of the court with due dignity for the institution. The Government Departments are no exception to it. The departments or instrumentalities of the State must act expeditiously as per orders of the court and if such orders postulate any schedule, then it must be adhered to. Whenever there are obstructions or difficulties in compliance with the orders of the court, least that is expected of the Government Department or its functionaries is to approach the court for extension of time or clarifications, if called for. But, where the party neither obeys the orders of the court nor approaches the court making appropriate prayers for extension of time or variation of order, the only possible inference in law is that such party disobeys the orders of the court. In other words, it is intentionally not carrying out the orders of the court. Flagrant violation of the court's orders would reflect the attitude of the concerned party to undermine the authority of the courts, its dignity and the administration of justice.
21. In Vinay Chandra Mishra, In re, this Court held that: (SCC p. 617, para 39) "39. ....judiciary has a special and additional duty to perform, viz., to oversee that all individuals and Page 26 of 43 C/CA/1094/2013 CAV JUDGMENT institutions including the executive and the legislature act within the framework of not only the law but also the fundamental law of the land. This duty is apart from the function of adjudicating the disputes between the parties which is essential to peaceful and orderly development of the society. Dignity and authority of the Courts have to be respected and protected at all costs".
22. Another very important aspect even of the Civil Contempt is, 'what is the attribution of the contemnor?' There may be cases of disobedience where the respondent commits acts and deeds leading to actual disobedience of the orders of the court. Such contemnor may flout the orders of the court openly, intentionally and with no respect for the rule of law. While in some other cases of civil contempt, disobedience is the consequence or inference of a dormant or passive behaviour on the part of the contemnor. Such would be the cases where the contemnor does not take steps and just remains unmoved by the directions of the court. As such, even in cases where no positive/active role is directly attributable to a person, still, his passive and dormant attitude of inaction may result in violation of the orders of the court and may render him liable for an action of contempt.
23. It is not the offence of contempt which gets altered by a passive/negative or an active/positive behaviour of a contemnor but at best, it can be a relevant consideration for imposition of punishment, wherever the contemnor is found guilty of contempt of court.
25. Deprecating practice of undue delay in compliance with the orders of the court, this Court again in M.C. Mehta v. Union of India observed: (SCC p. 311, paras 89) ".....clear lapse on the part of NCT and Municipal Corporation. Even if there was not deliberate or wilful disregard for the court orders, there has clearly been a lackadaisical attitude and approach towards them. Though no further action in this matter need be taken for now, but such lethargic attitude if continues may soon become contumacious."
26. It is also of some relevancy to note that disobedience of court orders by positive or active contribution or nonobedience by a passive and dormant conduct leads to the same result.
Page 27 of 43 C/CA/1094/2013 CAV JUDGMENTDisobedience of orders of the court strikes at the very root of rule of law on which the judicial system rests. The rule of law is the foundation of a democratic society. Judiciary is the guardian of the rule of law. If the Judiciary is to perform its duties and functions effectively and remain true to the spirit with which they are sacredly entrusted, the dignity and authority of the courts have to be respected and protected at all costs (refer T.N. Godavarman Thirumulpad's case, SCC p.6, para 5). The proceedings before the highest court of the land in a public interest litigation, attain even more significance. These are the cases which come up for hearing before the court on a grievance raised by the public at large or public spirited persons. The State itself places matters before the Court for determination which would fall, statutorily or otherwise, in the domain of the executive authority."
[11.3]In the case of Patel Rajnikant Dhulabhai & Anr. (Supra), in paras 75 to 77, the Hon'ble Supreme Court observed and held as under:
75. It is wellsettled that an apology is neither a weapon of defence to purge the guilty of their offence; nor is it intended to operate as a universal panacea, it is intended to be evidence of real contriteness [Vide M.Y. Shareaf v. Hon'ble Judges of the High Court of Nagpur; (1955) 1 SCR 757 : M.B. Sanghi v. High Court of Punjab & Haryana, (1991) 3 SCR 312].
76. In T.N. Godavarman Thirumulpad (102) v. Ashok Khot & Anr., 2006 (5) SCC 1, a three Judge Bench of this Court had an occasion to consider the question in the light of an 'apology' as a weapon defence by the contemner with a prayer to drop the proceedings. The Court took note of the following observations of this Court in L.D. Jaikwal v. State of U.P., (1984) 3 SCC 405:
(Ashok Khot case, SCC p. 17, para 32) "32. ....We are sorry to say we cannot subscribe to the 'slapsay sorry - and forget' school of thought in administration of contempt jurisprudence. Saying 'sorry' does not make the slipper taken the slap smart less upon the said hypocritical word being uttered.
Apology shall not be paper apology and expression of sorrow should come from the heart and not from the pen. For it is one thing to 'say' sorryit is another to 'feel' sorry".
The Court, therefore, rejected the prayer and stated: (SCC p. 17, para 31) "31. Apology is an act of contrition. Unless apology Page 28 of 43 C/CA/1094/2013 CAV JUDGMENT is offered at the earliest opportunity and in good grace, the apology is shorn of penitence and hence it is liable to be rejected. If the apology is offered at the time when the contemnor finds that the court is going to impose punishment it ceases to be an apology and becomes an act of a cringing coward".
Similar view was taken in other cases also by this Court.
77. We are also satisfied that the socalled apology is not an act of penitence, contrition or regret. It has been tendered as a 'tactful move' when the contemners are in the tight corner and with a view to ward off the Court. Acceptance of such apology in the case on hand would be allowing the contemners to go away with impunity after committing gross contempt of Court. In our considered opinion, on the facts and in the circumstances of the case, imposition of fine in lieu of imprisonment will not meet the ends of justice."
In the aforesaid decision, the Hon'ble Supreme Court has further observed that punishing a person for contempt of Court is indeed a drastic step and normally such action should not be taken. However, at the same time, it is not only the power but the duty of the Court to uphold and maintain the dignity of Courts and majesty of law which may call for such extreme step. It is further observed that if for proper administration of justice and to ensure due compliance of the orders passed by the Court, it is required to take strict view under the Act, it should not hesitate in wielding the potent weapon of contempt.
[11.4]In the case of State of M.P. & Anr. v. Suresh Narayan Vijayvargiya & Ors. in Contempt Petition (Civil) No. 390 of 2011 in Civil Appeal No.4060 of 2009, the Hon'ble Supreme Court has observed that it is trite law that apology is neither a weapon of defence to purge the guilty of their offence; nor is it intended to operate as universal panacea, it is intended to be evidence of real contriteness. [12.0]In backdrop of the above facts and circumstances and chronological dates/events stated hereinabove, first question which is required to be considered is whether the unconditional apology tendered Page 29 of 43 C/CA/1094/2013 CAV JUDGMENT by opponent No.11 deserves consideration or not?
[12.1]At the outset it is required to be noted that the present application has been preferred by the applicants herein - original appellants to set aside the sale deed dated 22.11.2012 executed by opponent No.6 herein as power of attorney holder of opponent No.11 in favour of opponent Nos.1 to 5 herein, which is absolutely in breach of the injunction / interim orders passed by the Division Bench of this Court dated 06.10.2010 in Civil Application No.4816/2008. It is also further prayed to punish the concerned opponents more particularly opponent Nos.1 to 6 and 11 herein under the Contempt of Courts Act for deliberate and willful disobedience of the interim injunction/order passed by this Court in Civil Application No.4816/2008.
[12.2]It is also required to be noted that so far as opponent No.11 is concerned, he has more than once and in all the affidavits in reply/affidavits has tendered unconditional apology and has submitted/stated that he is purging the contempt. As such he has categorically and candidly admitted that the sale deed dated 22.11.2012 executed in favour of opponent Nos.1 to 5 is in breach and/or in violation of the interim injunction passed by this Court in Civil Application No.4816/2008. However and at the same time while tendering unconditional apology and even the stating/submitting that he wants to purge the contempt, he has also tried to oppose the present application and as such has tried his best to delay the present proceedings. As stated hereinabove, the opponent No.11 herein has also tried to throw the burden upon opponent No.6 herein by submitting that whatever is done i.e. the sale deed dated 22.11.2012 has been executed by opponent No.6 and not by himself and therefore, the present proceedings be dismissed qua him. Thereafter, he has gone to the extent Page 30 of 43 C/CA/1094/2013 CAV JUDGMENT saying that it was the mistake on the part of opponent No.6 in executing the sale deed in breach of the injunction/interim order passed by this Court and without understanding the implication of the executing the sale deed in breach of the injunction/interim order passed by this Court. He has also come out with a case that infact he and his wife had issued public notices in the local newspapers against the opponent No.6 and one other cautioning the public that they are relieved from the service from 31.12.2012 and that they have not executed any document and/or power of attorney in favour of the persons named in the said public notices inclusive of opponent No.6 herein and if any document is there, the same may be treated as cancelled. He has also come out with a case that whatever amount of sale consideration i.e. Rs.7,97,32,600/ received by him is all taken away by his men working with him taking disadvantage of his health, and therefore, he is not in a position to repay the amount of sale consideration of opponent Nos.1 to 5 and reverse the transaction / sale deed though he wants to purge the contempt. He has also submitted that as such opponent No.6 as power of attorney of opponent No.11 executed the sale deed in favour of opponent Nos.1 to 5 in view of the judgment and decree passed by the learned Principal Senior Civil Judge, Ahmedabad (Rural) in Special Civil Suit No.1025/2011. That thereafter when the matter was heard finally, he has come out with a case in the last affidavit dated 05.03.2014 that he wants to repay the entire amount of sale consideration to opponent No.2 by installments and has brought the demand draft of Rs.65 lacs and the balance amount shall be repaid to the opponent No.2 as per the installments mentioned in the last affidavit dated 05.03.2014. Thus, it appears that as such the opponent No.11 has changed the story/his case from time to time and has, as such taken the court proceedings lightly and had taken the same as granted. The aforesaid chronological dates and events and his different stands in different affidavits in Page 31 of 43 C/CA/1094/2013 CAV JUDGMENT reply/affidavits would go to show that opponent No.11 has no respect for the Courts and the court proceedings at all. The unconditional apology tendered by him is filed only with a view to get out of the present proceedings.
[12.3]It is required to be noted that in the first affidavit in reply filed by opponent No.11, he has tendered unconditional apology and has stated that he is purging the contempt. However, thereafter, though sufficient opportunities were given during one year, no steps are taken by the opponent No.11 to purge the contempt and even to cancel the transaction and refund entire amount of sale consideration of opponent Nos.1 to 5 herein. On the contrary he has tried his best to delay the present proceedings by filing one application after another and not only that but at every stage he has changed the lawyers. Lastly, he submitted Civil Application No.634/2014 in main First Appeal to recall the order dated 17.04.2008 of admission of First Appeal as well as interim order dated 06.10.2010 in Civil Application No.4816/2008, after a period of almost 5 to 6 years and that too only with a view to get out of the present proceedings and/or any action under the Contempt of Courts Act and/or under Order 39 Rule 2(A) of the CPC and before this Court contended that in view of the said application, hearing of the present application be adjourned and/or differed or the present application be heard along with the main First Appeal. However, by order dated 28.02.2014, the Division Bench has dismissed the said application by observing in paragraphs 19 and 20 as under:
"19. In our view, when the leave is granted as back as in the year 2008 and the appeal is admitted as back as in the year 2008 and the question of maintainability of the appeal was not even raised, nor contended when this Court confirmed the interim injunction granted in the First Appeal vide order dated 6.10.2010 in Civil Application No.4816 of 2010, judicial discretion would demand that considering the facts and circumstances of the case, question of maintainability of the appeal should not be decided at this stage, but Page 32 of 43 C/CA/1094/2013 CAV JUDGMENT should be left to be decided, even if such exists, at the time of final hearing of the appeal. We find that the entertainment of the present application at this stage may result into encouraging the litigant to permit ingenious device in the Court proceedings, that too, after the proceedings under the Contempt of Courts Act are initiated and at one time, in contempt proceeding a declaration was made to purge from the contempt. It is hardly required to be stated that no litigant can take up Court proceedings as a jolly ride by raising the contention for ingenious purpose. We are conscious of the fact that the rights, if any, in civil matters are normally to be protected by the Court, but if the Court, in a given case, finds there is ex facie misuse of process of law, application cannot be entertained for seeking protection of such right or, in any case, the reliefs may be declined.
20.Considering the facts and circumstances, we find that there is no bona fide purpose at all of the present applicant in raising the contention, that too, after a period of six years from the date on which the appeal was entertained and after a period of about three years from the date on which interim injunction came to be confirmed and further after transfer of the land incontravention to the interim injunction, which was confirmed and proceedings in Contempt of Court Act initiated are pending."
It appears that thereafter when having failed and/or unsuccessful and when he had no other option but to proceed further with the present application, to get out of any action/punishment under the Contempt of Courts Act and/or for breach of injunction/interim order, in the affidavit dated 05.03.2014, he comes out with a case that he wants to repay the amount by installments and again has tendered unconditional apology. Considering the aforesaid overall facts and circumstances of the case, it appears to us that the unconditional apology tendered by opponent No.11 from time to time and/or request to purge the contempt lacks total bonafides.
[13.0]In the case of Patel Rajnikant Dhulabhai & Ors. (Supra), identical question came to be considered by the Hon'ble Supreme Court. In the said decision it is observed and held by the Hon'ble Supreme Court that apology which lacks penitence, contrition or regret cannot be accepted.
Page 33 of 43 C/CA/1094/2013 CAV JUDGMENTIn paragraphs 70, 72 to 76, the Hon'ble Supreme Court has observed and held as under:
70. From the above decisions, it is clear that punishing a person for contempt of Court is indeed a drastic step and normally such action should not be taken. At the same time, however, it is not only the power but the duty of the Court to uphold and maintain the dignity of Courts and majesty of law which may call for such extreme step. If for proper administration of justice and to ensure due compliance with the orders passed by a Court, it is required to take strict view under the Act, it should not hesitate in wielding the potent weapon of contempt.
72. The question then is whether the case calls for imposition of punishment on the contemnors. The learned counsel for the contemnors submitted that in the affidavitinreply, the respondents have stated that if this Court comes to the conclusion that they had committed contempt of Court, the Court may accept unconditional and unqualified apology and may discharge notice. The counsel submitted that the statutory provision itself enacts that no apology shall be rejected merely on the ground that it is qualified or conditional [Explanation to Section 12(1)].
73. We must frankly admit our inability to agree with the learned counsel. In the light of what is stated above, we are convinced that the contemnors have intentionally and deliberately violated the orders of the Court. We are also convinced that the orders were clear, unambiguous and unequivocal having one and only one meaning. Wilful and deliberate disobedience of the orders passed by the Apex Court of the country can never be said to be bona fide, honest or in good faith. If it is so, the action calls for serious view to ensure proper administration of justice.
74. In Hiren Bose, Re10, the High Court of Calcutta stated :
(AIR p.3, para 13) "13. ...It is also not a matter of course that a Judge can be expected to accept any apology. Apology cannot be a weapon of defence forged always to purge the guilty. It is intended to be evidence of real contrition, the manly consciousness of a wrong done, of an injury inflicted and the earnest desire to make such reparation as lies in the wrongdoer's power. Only then is it of any avail in a Court of justice. But before it can have that effect, it should be tendered at the earliest possible stage, not the latest. Even if wisdom dawns only at a later stage, the apology should be tendered unreservedly and unconditionally, before the Judge has indicated the trend of his mind. Unless that is done, not only is the tendered apology robbed of all grace but it ceases to be an apology. It ceases to Page 34 of 43 C/CA/1094/2013 CAV JUDGMENT be the full, frank and manly confession of a wrong done, which it is intended to be".
75. It is wellsettled that an apology is neither a weapon of defence to purge the guilty of their offence; nor is it intended to operate as a universal panacea, it is intended to be evidence of real contriteness (Vide M. Y. Shareaf v. Hon'ble Judges of the High Court of Nagpur11; M.B. Sanghi v. High Court of Punjab and Haryana 12.
76. In T. N. Godavarman Thirumulpad (102) v. Ashok Khot 13 a threeJudge Bench of this Court had an occasion to consider the question in the light of an 'apology' as a weapon defence by the contemnor with a prayer to drop the proceedings. The Court took note of the following observations of this Court in L. D. Jaikwal v. State of U.P.14, (Ashok Khot case13, SCC p.17 para 32) "32. ...We are sorry to say we cannot subscribe to the 'slap say sorry and forget' school of thought in administration of contempt jurisprudence. Saying 'sorry' does not make the slipper taken the slap smart less upon the said hypocritical word being uttered. Apology shall not be paper apology and expression of sorrow should come from the heart and not from the pen. For it is one thing to 'say' sorry it is another to 'feel' sorry."
The Court, therefore, rejected the prayer and stated: (SCC p.17, para
31) "31. ...Apology is an act of contrition. Unless apology is offered at the earliest opportunity and in good grace, the apology is shorn of penitence and hence it is liable to be rejected. If the apology is offered at the time when the contemnor finds that the court is going to impose punishment it ceases to be an apology and becomes an act of a cringing coward."
Similar view was taken in other cases also by this Court."
[14.0]From the facts narrated hereinabove we are satisfied that the so called apology is not an act of penitence, contrition or regret. It has been tendered as a "tactful move" when the contemnors are in the tight corner and with a view to ward off the Court. Acceptance of such apology in the case on hand would be allowing the contemnors to go away with impunity after committing gross contempt of Court. Therefore, we decline to accept the unconditional apology tendered by opponent No.11 herein and hold that opponent No.11 is guilty of willful Page 35 of 43 C/CA/1094/2013 CAV JUDGMENT disobedience of the interim order passed by this Court and has committed gross contempt of the Court and is liable for suitable punishment under the Contempt of Courts Act as well as for breach of injunction/interim order passed by this Court.
[14.1]By tendering unconditional and unqualified apology, the contemnor is trying to rule out the possible action for contempt of Court after violating the interim order passed by this Court and after enjoying the fruits for the illegality committed by him. It is trite law that apology is neither the weapon of defence to purge the guilt of their offence; nor is it intended to operate as universal panacea, it is intended to be evidence of real contriteness [Vide M. Y. Shareef v. Hon'ble Judges of the High Court of Nagpur (1955)1 SCR 757; M.B. Sanghi v. High Court of Punjab and Haryana (1991)3 SCC 600]. Contemnor has now tendered unconditional apology and volunteered to set right the illegality committed by them, but the purpose for flouting the order has been achieved. Therefore, to maintain the sanctity of the order of this Court and to give a message that parties cannot get away by merely tendering unconditional and unqualified apology after enjoying the fruits of the illegality, we are inclined to punish opponent No.11 and impose the fine.
[14.2]The opponent No.11 is guilty of contemptuous conduct and as such is beneficiary of clandestine transaction which is in violation of the restraint order passed by this Court.
[14.3]The conduct of opponent No.11 as evidenced from the aforesaid material establishes beyond doubt that all throughout, the opponent No.11 was trying to play with the Court and at every stage and/or from time to time he has changed story only with a view to mislead the Court. We are not inclined to accept the unconditional apology tendered by opponent No.11 having regard to the conduct of opponent No.11 which Page 36 of 43 C/CA/1094/2013 CAV JUDGMENT we have adverted to hereinbefore.
[14.4]As stated hereinabove sufficient opportunities have been given to opponent No.11 and opponent Nos.1 to 6 to purge the contempt and to restore the transaction / sale deed which is in breach of injunction/interim order granted by this Court, rather than by availing the same, they have adopted various dilatory tactics to delay the present proceedings. Noncompliance of the orders passed by the Court shakes the very foundation of our judicial system and undermine the Rule of law, which are bound to honour and protect. This is essential to maintain faith and confidence of people of this country in the judiciary. Nobody can be permitted to play mischief with the Court / Court's proceedings and any attempt which undermines the Rule of law is required to be dealt with ironhandedly.
[15.0]Now, the next question which is posed for consideration of this Court is what punishment should be imposed upon opponent No.11 herein and what further relief can be granted to the applicants in the present proceedings.
[15.1]In the case of Patel Rajnikant Dhulabhai (Supra), the Hon'ble Supreme Court has observed that punishing a person for Contempt of Court Act is indeed a drastic step and normally such action should not be taken. However, at the same time, it is not only the power but the duty of the Court to uphold and maintain the dignity of the Courts and majesty of law which may call for such extreme step. It is further observed that if for proper administration of justice and to ensure due compliance of the order passed by the Court, it is required to take strict view under the Act, it should not hesitate in wielding the potent weapon of contempt.
Page 37 of 43 C/CA/1094/2013 CAV JUDGMENT[15.2]In the case of Arjansingh (Supra) and after considering another decision of the Hon'ble Supreme Court in the case of Surjit Singh & Ors. (Supra), it is observed and held by the Hon'ble Supreme Court that in the event of coming to the conclusion that breach of order of restraint has taken place, even the Court in exercise of its inherent jurisdiction under section 151 of the CPC may bring back the parties to the same position as if the order of injunction has not been violated.
[15.3]In the case of Surjit Singh & Ors. (Supra), the Hon'ble Supreme Court has observed that if the alienation/assignment is made in defiance of the restraint order and still if the Court let it go as such, it would defeat the ends of justice and prevalent public policy. It is further observed and held by the Hon'ble Supreme Court in the said decision that Court, in such circumstances has the duty, as also the right, to treat the alienation/assignment as having not taken place at all for its purposes.
[15.4]Now, considering the aforesaid law laid down by the Hon'ble Supreme Court in the aforesaid decisions referred to hereinabove and the facts of the case on hand and the conduct on the part of the opponent No.11 already narrated hereinabove and as it is found that opponent No.11 has committed the breach of the injunction and as a part of his game has sold the land in question, in breach of the injunction by executing the special POA in favour of his own driver and before that to see to it that one suit is filed against him for specific performance of the Agreement to Sell alleged to have been executed approximately before/prior to 15 to 20 years and thereafter obtaining the consent decree in the said suit being Special Civil Suit No.1025/2011 and thereafter to execute the sale deed through special power of attorney - his driver and thereafter giving the public notice in the local Page 38 of 43 C/CA/1094/2013 CAV JUDGMENT newspaper that he has not executed any power of attorney in favour of any person and as observed hereinabove, all these are part of his strategy to get out of any action for breach of the injunction granted by this Court, we are of the opinion that the matter is required to be viewed very seriously. As observed herein above, we are of the opinion that opponent No.11 has no respect for the Courts and the Court's order and has taken the Court's proceedings very lightly and even by filing different affidavits with different stories even he has tried to play game with the Court. Therefore, this is a fit case to impose punishment upon opponent No.11 under the Contempt of Courts Act for breach of injunction under Order 39 Rule 2(A) of the Code of Civil Procedure, 1908.
[16.0]Now, so far as opponent No.6 herein who has executed the sale deed dated 22.11.2012 in favour of opponent Nos.1 to 5 herein as power of attorney of opponent No.11 is concerned, it appears that as such nothing is on record that it was brought to his notice that there was an injunction/interim order passed by this Court. It is required to be noted that as such he was serving as a driver with opponent No.11 herein and as a part of strategy/game and/or larger conspiracy, the opponent No.11 has made him the tool and executed special power of attorney only for the purpose of one transaction and after getting the sale deed executed by him, opponent No.11 has issued the public notice terminating his services as well as withdrawing any document/power of attorney executed in his favour, if any. He has also categorically stated that as such he has not gained anything and the entire amount of sale consideration is received by the opponent No.11 herein. Therefore, in absence of any specific evidence that the opponent No.6 was aware of the interim order/injunction granted by this Court and despite the same he violated the interim injunction/order passed by this Court and Page 39 of 43 C/CA/1094/2013 CAV JUDGMENT executed the sale deed, we are of the opinion that no further action is required to be taken against opponent No.6.
[17.0]Now, so far as opponent Nos.1 to 5 which claim to be bonafide purchasers of the land in question by registered sale deed dated 22.11.2012 and on payment of sale consideration of Rs.7,97,32,600/ and whether to take any action against opponent Nos.1 to 5 under the Contempt of Courts Act and/or for breach of the interim order/injunction passed by this Court is concerned, at the first instance, the opponent Nos.1 to 5 can be said to be purchasers however, their conduct in obtaining the consent decree in Special Civil Suit No.151/2007 and thereafter obtaining the sale deed creates doubt about their bonafides. It is true that nothing is on record that opponent Nos.1 to 5 were in knowledge of interim order/injunction passed by this Court, more particularly when they were not party to the first appeal and the civil application. However, obtaining the consent decree in the aforesaid special civil suit creates doubt about their bonafides. It is required to be noted that in the civil suit filed by them, they claimed to be the banakhat holders / Agreement to Sell holders executed in the year 1998. Nothing is on record that thereafter any further steps were taken by them. All of a sudden and during the pendency of the main first appeal and the restraint order in Civil Application No.4816/2008, the opponent No.11 files a caveat against them and thereafter opponent Nos.1 to 5 files the suit and immediately thereafter they obtained the consent decree and thereafter immediately got the sale deed executed in their favour. Even the subsequent conduct on the part of opponent Nos.1 to 5 herein of filing the civil application to recall the order of admission of First Appeal passed in the year 2008 and also to recall the interim order passed in civil application, which prima facie seems to support the opponent No.11, creates doubt about the bonafides of opponent Nos.1 to 5.
Page 40 of 43 C/CA/1094/2013 CAV JUDGMENTHowever, as such in absence of any specific evidence and/or the case on behalf of the applicants that the opponent Nos.1 to 5 were aware of the interim injunction/order passed by this Court, technically speaking it cannot be said that opponent Nos.1 to 5 are liable to be punished under the Contempt of Courts Act. However, at the same time and in view of the observations made hereinabove, their bonafides and more particularly the conduct of the opponent Nos.1 to 5 referred to hereinabove and when the sale deed dated 22.11.2012 is found to be in absolute breach of the interim order/injunction granted by this Court and the manner in which the sale deed has been executed in their favour, the sale deed dated 22.11.2012 is required to be quashed and set aside. In the case of Arjan Singh (Supra), it is observed and held by the Hon'ble Supreme Court that in the event of coming to the conclusion that a breach of an order of restraint had taken place, even a Court in exercise of its inherent jurisdiction under Section 151 of the Code of Civil Procedure, 1908, may bring back the parties to the same position as if the order of injunction has not been violated. In the case of Surjit Singh (Supra), the Hon'ble Supreme Court observed that if the alienation/assignment is made in defiance of the restraint order and still the Court wants to let it go as such, it would defeat the ends of justice and the prevalent public policy. It is further observed and held by the Hon'ble Supreme Court in the said decision that the Court in such circumstance has the duty, as also the right, to treat the alienation/assignment as having not taken place at all for its purposes.
[17.1]In the case of Noorali Babul Thanewala v. Sh. K.M.M Shetty & Ors. reported in AIR 1990 SC 464 (1), while considering the breach of undertaking visàvis the action under the Contempt of Courts Act, the Hon'ble Supreme Court has observed in para 11 as under:
"When a court accepts an undertaking given by one of the parties Page 41 of 43 C/CA/1094/2013 CAV JUDGMENT 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 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 undertaking that 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 an injunction 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 the contempt by directing the first respondentcontemnor to deliver vacant possession immediately and issuing necessary further and consequential directions for enforcing the same."
[18.0]In view of the above and for the reasons stated above, we hold opponent No.11 herein guilty of the Contempt of Courts Act for deliberate and willful disobedience of the interim order dated 06.10.2010 passed by this Court in Civil Application No.4816/2008 and under Order 39 Rule 2(A) of the Code of Civil Procedure, 1908 having regard to the facts and circumstances of the case, we impose the sentence of 3 months imprisonment in addition to a fine of Rs.2,000/ upon opponent No.11. The fine shall be paid within a period of two weeks from today and in default thereof the opponent No.11 shall undergo further imprisonment of two weeks.
For the reasons stated hereinabove, it is also declared that the sale deed dated 22.11.2012 executed by opponent No.6 herein as power of attorney of opponent No.11, in favour of opponent Nos.1 to 5 which is found to be in breach of the interim order / injunction granted by this Court in Civil Application No.4816/2008 is declared as non est and is Page 42 of 43 C/CA/1094/2013 CAV JUDGMENT hereby ordered to be cancelled and quashed and set aside and it is directed to restore the position which was prevailing prior to the execution of the sale deed dated 22.11.2012 which was prevailing at the time of interim injunction/order dated 06.10.2010 passed by Division Bench of this Court in Civil Application No.4816/2008. However, it is observed that it will be open for the opponent Nos.1 to 5 to recover the amount of sale consideration from the opponent No.11 herein. Rule is made absolute accordingly to the aforesaid extent however, with exemplary cost which is quantified at Rs.1 lakh, to be deposited by the opponent No.11 herein with the Registry of this Court within a period of two weeks from today and it is directed that on such deposit, Rs.50,000/ to be paid to the applicants towards the cost of the present proceedings and Rs.50,000/ to be transmitted to the Gujarat State Legal Services Authority.
Sd/ (M.R. SHAH, J.) Sd/ (R.P. DHOLARIA, J.) FURTHER ORDER At this stage, Shri Syed, learned advocate for the opponent No.11 has requested to grant some time to opponent No.11 to surrender. In the facts and circumstances of the case, time to surrender opponent No.11 is hereby granted upto 15.04.2014.
Sd/ (M.R. SHAH, J.) Sd/ (R.P. DHOLARIA, J.) Ajay Page 43 of 43