Calcutta High Court (Appellete Side)
Kashi Nath Biswas vs Smt. Tarulata Debsharma & Anr on 1 October, 2013
Author: Harish Tandon
Bench: Harish Tandon
1 01 01.10.2013
C.R.L.C.P. 8 of 2010 in akd C.R.R. 1766 of 2010 Kashi Nath Biswas Vs. Smt. Tarulata Debsharma & Anr.
Mr. Bhabani Prasad Mondal, Mr. Skukanta Mondal.
... for the petitioner.
Mr. Sanjay Ghosh, Mr. H. K. Paik.
... for the contemnors.
This is a contempt application at the instance of the petitioner alleging the violation of an order dated 28th May, 2010 by which this Court directed the maintenance of status quo in respect of the construction on the alleged pathway in question.
The petitioner alleges that despite the knowledge of the said order the alleged contemnors have broken the boundary wall and the tiles of the residential room in presence of the police of the Diamond Harbour Police Station and have started using the same for their egress and ingress to their place of abode.
In the contempt application the petitioner has annexed a copy of an order dated 28th May, 2010 passed by the Additional Chief Judicial Magistrate, Diamond Harbour, in Case No. C 334 of 2009 initiated under the Protection of Women From Domestic Violence Act, 2005, wherefrom it appears that the court below in absence of any stay order passed in the Criminal Revisional Application filed before this Court directed the implementation of its order with the help of the police.
According to the petitioner on 16th June, 2010 the alleged contemnors forcibly dismantled the wall belonging to the petitioner and have made an access through the said pathway in gross violation of the order of status quo passed by this Court.
Although the order was communicated to the alleged 2 contemnors, but the same appears to have been served upon one of their son, which could be gathered from the certificate of the postal department.
In affidavit-in-opposition the alleged contemnors have categorically stated that the said order was not communicated to them and, therefore, there is no willful and conscious violation of the said order.
The postal article containing the letter communicating the order passed by this Court appears to have been received by the son of the alleged contemnors on 28th May, 2010. The petitioner could not produce the document evidencing that the order passed by this Court was communicated to the alleged contemnors.
The petitioner also could not demonstrate before the Court that after the passing of the order by this Court the same was communicated before the court below, who appears to have passed the order on the same day after recording satisfaction that there is no order of stay passed by the higher Court.
It is apparent from the affidavit-in-opposition that there has been an act on the part of the alleged contemnors in dismantling the construction undertaken by the petitioner, but the same was done in ignorance of the order of status quo, as the petitioner could not demonstrate before this Court that the said order was made known to the alleged contemnors and they were well aware thereof.
The parties are related by blood and are litigating not only by initiating civil proceedings, but several criminal proceedings have been initiated. The alleged contemnors appear to be in their late 70's and are fighting with their daughter and son-in-law.
The Additional Chief Judicial Magistrate, Diamond Harbour, passed an order for due implementation of its earlier order, which cannot be faulted with, more particularly when neither of the parties have brought to the notice of the Court 3 that an order of status quo in respect of the pathway in question is passed by this Court on the same day. The petitioner has also not shown his diligence in bringing the order passed in a Criminal Revision of this Court before the due implementation thereof by the police and municipal authorities.
This Court, therefore, does not find that the alleged contemnors have violated the order consciously, deliberately and willfully for being liable to be punished under the Contempt of Courts Act.
The contempt application is, thus, dismissed.
There will be no order as to costs.
( HARISH TANDON, J.)