Calcutta High Court (Appellete Side)
M/S. Hindusthan Auto Distributor vs Kamlesh Khandelwal & Ors on 3 March, 2008
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
IN THE HIGH COURT AT CALCUTTA
SPECIAL CIVIL JURISDICTION (CONTEMPT)
Appellate Side
PRESENT:
THE HON'BLE MR. JUSTICE BHASKAR BHATTACHARYA
AND
THE HON'BLE MR. JUSTICE RUDRENDRA NATH BANERJEE
C.R.C. NO. 1369 OF 2007
M/S. HINDUSTHAN AUTO DISTRIBUTOR
- VERSUS -
KAMLESH KHANDELWAL & ORS
For the petitioners : Mr. Saktinath Mukherjee,
Mr. Chandra Nath Mukherjee,
Mr. Soumik Mukherjee,
Mr. Aniruddha Chatterjee.
For the respondent Nos. 1,2,
4,7,8 & 9 : Mr. Asish Chakraborty,
Ms. Anjali Agarwal
For the respondent No. 3 : Mr. Sudhangsu Sil.
For the respondent No. 10 : Mr. Arunava Ghosh.
For respondent No. 6 : Ms. Anjali Agarwal.
Heard on: 14.08.2007, 01.10.2007, 11.01.2008, 21.01.2008.
Judgment on: 3rd March, 2008.
RUDRENDRA NATH BANERJEE, J.:
This is an application for contempt alleging violation of the order dated 1st July, 2005 passed by this Court in FMAT No. 908 of 2005 on the allegation that defying such order the respondents have been protecting their areas by encroachment upon the portion beyond the area mentioned in schedule 'A' given in page 161of the application for stay, upon which such order was passed.
To sum up the facts of the case that gives rise to filing of application for contempt of Court :-
M/s. Hindustan Auto Distributor constructed a multistoried building on 12B Russel Street and sold out some of the flats along with car parking space at the basement of the building to some of the respondents by different deeds of sale and some other respondents also began to possess some of the flats in the said building by way of agreement. The respondents and others formed the Russel Apartment Society and began to encroach some vacant space by the side of the said building by keeping their private cars or motor cycles which gave rise to the dispute and litigation between the parties.
Russel Apartment Society of which the respondents are the members, filed the title suit No. 87 of 2005 in the City Civil Court at Calcutta against the petitioner M/s. Hindusthan Auto Distributor. The prayer was for declaration that an open space up to 60' (from east to west) situated on the western side of the building constructed at premises No. 12B Russel Street is a part and parcel of the building. In addition the said plaintiff also prayed for mandatory injunction directing the defendant No. 1, the petitioner before us, to demolish the tin shed structure constructed within 60' which is described as 'B' schedule property at the said premises. The further prayer of the plaintiff was for permanent injunction restraining the defendant, its men, agents and servants from raising any boundary wall and/or fencing encroaching upon the 'B' schedule property on the western side of the building. In connection with the aforesaid suit the respondents that is the plaintiffs filed an application under order 39 Rule 1 and 2 of the Civil Procedure Code praying for temporary injunction restraining the present petitioner, its men, agents and servants from raising any boundary wall and/ or fencing or encroaching upon 'B' schedule property and/or within the area 60' of the western side of the building described as schedule 'A' property.
On the said application learned Trial Judge by the order No. 3 dated 20th January, 2005 issued a show cause notice as to why the temporary injunction would not be granted and the learned Court below also issued an order of injunction restraining the petitioners, their men, agents from raising any boundary wall and/or encroaching upon the 'B' schedule property and/or within the area 60' on the western side of the building in question as mentioned in the schedule 'A' of the plaint, till the disposal of the application for injunction. The petitioners being aggrieved by the aforesaid order of the learned Trial Court preferred an appeal before this Court being FMAT No. 328 of 2005 and also filed an application for stay. This Court on 15.02.2008 passed an interim order to the effect that the order passed by learned Trial Judge would not be interfered with but at the same time the respondents, their men and agents were also restrained from encroaching upon any portion mentioned in schedule 'A' property which the respondents separately purchased by virtue of their sale deeds or the agreement by which they agreed to purchase the property and by virtue of which they were put to possession.
But in spite of the knowledge of such order the respondents wilfully and deliberately violated the order. This Court by order dated 31.03.2006 ultimately dropped the contempt proceeding as the respondents were repentant for their acts.
In the mean time M/s. Hindusthan Auto Distributor filed the title Suit No. 914 of 2005 in the 5th Bench of the City Civil Court at Calcutta against Russel Apartment Society and Kamlesh Khandelwal for a declaration that the members of the defendant society has no manner of right title and interest in the roof of the 10th floor and car parking space not purchased by them and the plaintiff also prayed for permanent and temporary injunction. The plaintiff's prayer for ad interim injunction was refused by the Trial Court by its order No. 3 dated 21.06.2005.
The plaintiff being aggrieved by such order of refusal filed the F.M.A.T. No. 2096 of 2005/ F.M.A. No. 908 of 2005 against such refusal by the Trial Court to pass an interim order of injunction in favour of the plaintiff. The plaintiff as the appellant filed also the application under CAN 5471 of 2005 for stay.
While disposing of the application for stay the Division Bench of this Court passed the interim order of injunction dated 01.07.2005 restraining the respondent No. 1 or its men from encroaching upon other portion of the suit property beyond that indicated in their respective deeds of purchase or in their deeds of agreement by virtue of which they have been put into possession. But subsequently in spite of knowledge of such order of the Court the respondents who are the members of the apartment society are continuing to violate the said order of the Court by parking cars and/or other vehicles encroaching the area belonging to the petitioner. The respondent No. 1 and its members violating the Court's order despite their unconditional apology before the Court in the earlier contempt proceedings. It may be mentioned in this connection that out of 36 (Thirty six) parking space provided in the basement of the said building 13(Thirteen) occupiers of the building including some of the present respondents have purchased such parking space in the basement of the building.
The petitioner has accordingly filed this petition under C.P.A.N. 182 of 2007 for drawing up contempt proceedings against the respondent/contemners who are the members of the respondent No. 1 society for their wilful and deliberate violation of the Court's order on repeated occasions and for sending the contemners to prison.
The petitioner has also filed the supplementary affidavit with the addition of fact that the respondent No. 1 who is the Secretary of the Russel Apartment Society had posted caretaker/ gate keeper at the main entrance of the premises NO. 12B Russel Street for regulating smooth ingress and egress to the premises of the petitioner and he is thereby interfering with the smooth flow of the ingress and egress of the petitioner and its representatives.
It is further alleged that the respondent/contemner No. 2 being the owner of the flat No. 8B parked the vehicle and motor cycle in the said premises beyond the 'A' schedule property violating the order of the Court.
The petitioner M/s. Hindusthan Auto Distributor has also alleged that the respondent NO. 3, the owner of the Flat No. 5D though did not purchase any car parking space but is parking his vehicles in the said place unauthorisedly.
Allegedly, the respondent No. 4 who is the owner of Flat No. 7D, respondent No. 5, the owner of Flat No. 2D, respondent NO. 6, the owner of Flat No. 6A, respondent NO. 7 and 8, owners of Flat No. 1A, respondent NO. 9, owner of Flat No. 7B, respondent NO. 10, owner of Flat No. 2D, although have not purchased any car parking space have been parking their respective cars and vehicles beyond the spaces produced by them violating the Court's specific order.
The respondent No. 1-4 and 6, 8-10 filed their respective affidavit-in- opposition. In all such affidavits such respondents have expressed their highest regard for the Court and have denied the allegation of violation of the Court's order and they have also stated that if there be any action on their part violating the Court's order, the same was unintentional and they tender unqualified apology for such action.
It has been stated in such affidavit-in-opposition of respondent/contemner No.1 Kamlesh Khandelwal, the Secretary of the
Apartment Association that such gate keeper or care taker at the main entrance of the premises No. 12B Russel Street, Kolkata are not interfering with the smooth flow of ingress and igress of the representative of the petitioner. It has been also stated in such affidavit-in-opposition that the photographs of the cars which have been annexed in the supplementary affidavits filed from the end of the petitioner were not genuine and those were the photographs of the cars when those were parked at the authorised parking spaces.
The respondent/contemner No. 2, by his affidavit-in-opposition has asserted that he is the owner by purchase of the Flat No. 8B and is also owner of the car parking space in the basement of the building. He has denied parking of his car and motor cycle in the vacant space unauthorisedly and has stated that such photographs of parking of vehicles have been filed by the plaintiff motivatedly, of course the particular car and motor cycle are registered in his name.
The respondent/ contemner No. 3 has added in his affidavit-in- opposition that Santosh Devi Mall purchased the Flat No. 7A along with a car parking space and under his authority the said respondent parked the particular car.
The respondent No. 4, Damodar Prasad Khandelwal, is the owner of Flat No. 7D of the building and is the owner of the two cars allegedly parked in the car parking space owned by him but the other car No. WB 02S 8882 was of his son Kamlesh Khandelwal that is the respondent No. 1.
The respondent No. 5, Laxmi Sankar Agarwal appears to be dead.
The respondent No. 6 has admitted that the said two cars of which numbers have been given in the petition of the petitioner belong to him but he is the owner of Flat No. 6A of the building and a car parking space in its basement and the cars in the photograph was parked in such car parking space.
The respondent No. 8, Mahesh Khandelwal has stated that the said two cars mentioned in the supplementary affidavit stand registered in his name but those are not used by him. He is the owner of Flat No. 1A of the building and the said two cars mentioned. It is further stated that such photographs of parking cars were taken while those were parked else where when those were waiting during school hours for picking up or dropping his grandchildren.
The respondent No. 9 has also stated that he is the owner of the Flat No. 7B and a car parking space at the basement. According to him the motor car No. WB 02 T 3935 belongs to him and the motor cycle No. WB 01 V 3312 belongs to Suraj Sodhani and grandson and the photograph was taken when the car and motorcycle were parked at such car parking space.
The respondent No. 10 has admitted that he was not aware of the order of injunction passed by the Court but he tendered unconditional apology for parking a car of his in the passage. According to him he parked one of the cars in the passage as he had to attend serious patient in the nursing home.
The respondent No. 7 did not file any affidavits-in-opposition. Thus the sum and substance of the affidavits-in-opposition filed by the respondents is that in one hand they deny their knowledge of the order of injunction passed by this Court on 1.7.2005 and on the other hand they have practically admitted that the cars or the vehicles of which photographs have been taken and annexed with the supplementary affidavit of the petitioner are either registered under their names or they were permitted by some one else to park such vehicle at such space beyond the 'A' schedule building. The respondent No. 1 has specifically spoken of the posting of the gate keeper at the entrance of the said premises but they are not interfering with the ingress and egress of the petitioner.
On behalf of the petitioners M/s. Hindusthan Auto Distributor affidavits-in-reply to the affidavits-in-opposition filed by the respondents/ contemner Nos. 1-4, 6, 8-10, were submitted and it was asserted and that such contemners were communicated of the order of Division Bench dated 01.07.2005 in F.M.A.T. No. 908 of 2005 under registered post with A/D and those were returned back with the postal endorsement of refusal which can be safely treated as good service. Thus the question of contemners cannot now take the plea that they were not aware of the order of the Court restraining them from encroaching upon the space or passage of the petitioner at the premises No. 12B Russel Street by keeping their motor cycles or cars thereon.
It is true that the said order dated 01.07.2005 of temporary injunction was passed by a Division Bench of this Court in the F.M.A. T. No. 2096 of 2005 and while dealing with the application for stay being CAN No. 5471 of 2005 such order was passed also in presence of learned Advocate for the respondents and as such the plea that such respondents/ contemners had no knowledge of such order cannot be accepted.
It is true that in the said FMA the Russel Apartment Society was the main respondent to the appeal but it is not denied that the present respondents/ contemners are the members of such society which was represented by the respondent No. 2 Kamlesh Khandelwal being the Secretary of the Society. The respondent/contemner No. 1, Kamlesh Khandelwal has stated in his affidavit-in- opposition that the petitioners posted caretaker/ gate keeper at the main entrance of 12B Russel Street causing serious interfere with the smooth ingress and egress of the residence/ visitors of the building. It is not understood as to why the petitioners affidavit should be disbelieved in this connection.
The petitioner took the photographs of different vehicles and motor cycles parked in the passage and such photographs have been made part of the affidavit. According to the petitioner the contemners/respondent Nos. 2-10 had encroached such passage by keeping their car or other vehicles beyond the 'A' schedule building. The order of the Court restraining such contemners from encroaching upon such passage was duly communicated to such contemners by letters under registered post with A/D, which were refused by them. There is every reason to hold that such contemners despite the knowledge of the Court's order has wilfully violated the same by keeping such vehicles at such place disobeying the Court's order.
It cannot be left unnoticed that on earlier occasion the respondent/contemner Nos. 1 to 4 also violated the Court's order and the contempt proceeding was dropped only on the ground that the contemners were repentant of their own actions. This being the position, although all the the contemners have urged that they have the highest regard for the Court and its order but the said violation of the Court's order cannot be viewed loosely and there should be some punishment to be inflicted upon them under Section 12 of the Contempt of Courts Act.
Although the aforesaid all the guilty contemners prayed for apology but such apology is not sincere and accordingly we do not accept such apology. The respondent Nos. 1-4 even repeated the commission of similar acts violating the Court's order although, earlier, they expressed repentance after which the contempt proceeding against them was dropped. The respondent Nos. 6-10 although committed the acts of contempt but they were not made respondents in the earlier contempt proceeding.
Considering the facts and circumstances and also the nature and gravity of the acts of wilful violation of the Court's order by the guilty respondents we find that such acts of violation substantially interferes with the due course of justice. We also do not find any justification to hold that such act was committed by the contemners in public interest or that acted with some bonafide belief.
Considering the facts and circumstances and also the gravity of the acts of wilful violation of the Court's order by the respondent Nos. 1 to 4 we find that there should be a fine of Rs.2,000/- (Rupees Two thousand) to each of the contemner Nos. 1-4 as guilty under contempt of Court's Act 1971. The respondent Nos. 6 to 10 being also guilty of contempt of Court there should be a fine of Rs.1000/- to each of them. In addition, all such respondent Nos. 1 to 4 and 6 to 10 should also be held liable to pay costs to the petitioner and we are of the considered opinion that such fines and order of costs will meet the demand of justice.
Accordingly all the respondents/contemners are found guilty under Section 12 of Contempt of the Court's Act, 1971. The respondent/contemner Nos. 1 - 4 are directed to pay fine of Rs.2,000/- (Rupees Two thousand) in default to simple imprisonment for 20 days each, as the earlier contempt proceeding against them was dropped on consideration of their repentance for their acts. The respondent/ contemner Nos. 6 to 10 are directed to pay fine of Rs.1000/- each in default to Simple Imprisonment for 10 days each. The respondents/contemners are to pay the fine amount within fortnight from the date of this judgment.
In addition, considering the circumstances of the case and the commission of wilful act of contempt we make the rule absolute with costs which is assessed at 100 gold mohars to be paid by each of the guilty respondents to the petitioner within fortnight from today.
The instant application for contempt is accordingly disposed of.
Urgent xerox certified copy be given to the parties expeditiously, if applied for.
(Rudrendra Nath Banerjee, J.) I agree, (Bhaskar Bhattacharya, J.)