Delhi High Court
Pearey Lal And Sons Pvt. Ltd. vs Dabur India Ltd. on 18 March, 2005
Equivalent citations: 118(2005)DLT479, 2005(81)DRJ20
Author: Pradeep Nandrajog
Bench: Pradeep Nandrajog
JUDGMENT Pradeep Nandrajog, J.
1. Factual backdrop leading to filing of the two captioned contempt petitions being the same, the two are being disposed of by a common order.
2. Being the land-lord of a building known as Harsha Bhawan in Connaught Place, applicant had let out certain portion thereof on the second floor as also on the third floor to the respondent under two separate agreements. There being certain disputes between the parties, applicant sought eviction and mesne profits against the respondent pertaining to the two tenanted portions. Suit No.87/2000 filed by the applicant related to the tenanted premises on the third floor. Suit No.88/2000 related to the tenanted premises on the second floor. In both the suits, on 18.7.2000, counsel for the respondent undertook to pay the last paid rent w.e.f. 15.5.2000. This was recorded in order dated 18.7.2000 passed in Suit No.87/2000 as well as Suit No.88/2000.
3. Applicant had filed interim applications in both the suits seeking past rent which was not paid as also damages for unauthorized use and occupation for the period as per applicant, respondent remained in unauthorized occupation.
4. Vide order dated 1.11.2002, interim applications were disposed of. Inter-alia, following direction was issued:-
"The defendant shall, however, continue to pay rent/damages for use and occupation at the rate of last paid rent as is being paid w.e.f. 15.5.2000 till disposal of the suit."
5. Respondent honoured the statement made by counsel and as recorded in order dated 18.7.2000 passed in both the suits till the month of April 2002. It suspended the payment of the last paid rent effective from May 2002. When the two applications were filed praying for initiating contempt proceedings against the director of the respondent, rent was not paid. I was informed at the bar during arguments, that the respondent suspended the rent effective from 1.5.2002 till 28.11.2002.
6. As per the contempt petitioners, respondent is in contempt of the order dated 18.7.2000 as well as the order dated 1.11.2002.
7. defense of the respondent is that the petitioner failed to maintain the tenanted premises and as a consequence thereof it had to shift its staff from the tenanted premises in October 1999. After due notice of suspension of rent, respondent suspended the rent from 1.9.1999 to 15.5.2000. It is further stated that after the staff was shifted back in May, 2000, tenanted premises deteriorated due to non-maintenance by the applicant and as a result, staff had to be shifted out again in January 2002. Possession was retained in the vain hope that infrastructure would improve. Since the applicant took no remedial action, building went from bad to worse and finally it surrendered possession in November 2002. In a nutshell, defense is that the respondent had a right to suspend the rent for the reason premises were not in habitable condition.
8. Mr. R.S. Nanda, counsel for the petitioner, had a simple submission to make. Submission was that the respondent was bound by statement made by its counsel and as recorded in the order dated 18.7.2000. Further, respondent was bound by the directions issued vide order dated 1.11.2002. If the respondent wished to suspend payment of rent, it could move an application under Order 39 Rule 4 CPC calling upon the court to modify the order dated 18.7.2000 or the order dated 1.11.2002. As long as said orders continued to operate, respondent could not unilaterally modify or suspend the operation of said orders. There being, admittedly, non-compliance with the said two orders, respondent was in contempt.
9. Per contra, Shri S.K. Makkar, counsel for the respondent urged that every violation of an order passed by the court is not contempt. Willful disobedience was the sine qua non to constitute the offence of contempt. It was urged that since the premises were not being maintained, respondent suspended payment of rent. Counsel urged that since the two suits claimed a relief for mesne profits, this was the defense of the respondent in two suits for the period in question and would therefore be adjudicated in the suit. Counsel urged that the present contempt proceedings were a pressure tactic to extract money from the respondent.
10. Section 2(b) of the Contempt of Courts Act, 1971 defines a civil contempt to mean :-
"Willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court."
11. Willful disobedience or willful breach is the gravement of the charge of civil contempt. Mere disobedience or breach with nothing more would not constitute civil contempt.
12. What would be the ambit of willful?
13. As long as there is the requisite means rea, willfulness gets attracted ipso facto. When an action is taken with the requisite intention to accomplish an act, the act becomes a willful act.
14. On the defense taken, respondent has not pleaded that it was in technical breach of the two orders passed by this court. It has not pleaded that it was ignorant of the two orders. What is pleaded is the defense of justification.
15. Would justification be a good ground to defend an action brought for civil contempt?
16. Except for pleading necessity, this court cannot think of a valid defense to an action for civil contempt when there is evidence that the party in disobedience was aware of the orders passed by a court. If justification would be accepted as a defense, every party could set-forth some ipsi dixit reasons and plead that the disobedience is not willful. Failing in the defense set-up, party could plead that it bona fide believed that it was justified in exercising its right and if the court held that it was not exercising bona fide it would not ipso facto lead to the conclusion that disobedience was willful.
17. In my opinion, such a defense would pollute the administration of justice for the reason interim orders would lose their sanctity.
18. Aware of the fact that interim orders may cause hardship to a party and there may be change of circumstances, legislature included Rule 4 in Order 39. Order 39 Rule 4 empowers the court to set aside, discharge or vary an order, on an application made thereto by any party. Every order can be discharged, varied or set aside if a change in circumstances necessitates said discharge, variation or setting aside.
19. Respondent could not become a judge of its own cause. Respondent could not, of its own accord, act as a judge to vary the order dated 18.7.2000 and 1.11.2002 passed by this court.
20. defense pleaded by the respondent is to tell this court that after order dated 18.7.2000 was passed there was change in circumstances and in view of the changed circumstances, respondent was justified in varying the order. In other words, respondent has invoked the Order 39 Rule 4 and empowered itself to vary the order dated 18.7.2000.
21. Another important fact has to be kept in mind. Respondent had suspended payment of rent effective from May 2002. This was done by the respondent as according to it, applicant was not maintaining the tenanted premises in an habitable condition. In spite of the fact aforesaid, this court on 1.11.2002 directed payment of damages, being the last rent, effective from 15.5.2000 till disposal of the suit. defense predicated by the respondent would therefore not be available to it.
22. Learned counsel for the respondent placed reliance on decision of the Supreme Court reported as Babu Ram Gupta v. Sudhir Bhasin and urged that disobedience of an executable order does not constitute contempt, for the reason the order could be implemented by way of an execution.
23. Decision relied upon by counsel for the respondent would show that the apex court was dealing with non-compliance of a compromise decree or a consent order in the context of the law of contempt.
24. The two orders with which I am concerned are not consent orders. The first order being the order dated 18.7.2000 is based on the statement of counsel for the respondent and contains an undertaking and the second order dated 1.11.2002 shows that the matter was contested.
24. As observed in Halsbury's Laws of England, (IIIrd Edition) Volume 8 at pages 20-21 under the heading 'Contempt in Procedure', contempt in procedure consists of disobedience to the judgments, orders or other process of the court, and involves a private injury. In circumstances involving misconduct, contempt in procedure bears a two-fold character, implying as between the parties to the proceedings merely a right to exercise and a liability to submit to a form of civil execution, but as between the party in default and the State, a penal or disciplinary jurisdiction to be exercised by the Court in the public interest.
26. In the Division Bench decision of the Calcutta High Court reported as Meera Bose v. Santosh Kumar Bose, in para 6 it was held:-
"6. It is thus clear that only because an order is enforceable by a party to the action in whose favor it has been made, it cannot be said that disobedience to it cannot be contempt of court."
27. Similar observations are to be found in a Division Bench judgment of the Patna High Court reported as AIR 1954 Patna 513 State of Bihar v. Rani Sonabati Kumari. A learned Single Judge of the Bombay High Court, in the decision reported as 1988 Cri.L.J. 558 Sarladevi Bharat Kumar Rungta v. Bharat Kumar Shiv Prasad Rungta held that notwithstanding the fact that an order against the husband to pay maintenance pendente lite to the wife was executable under Order 21 Rule 37 CPC, action for contempt was maintainable against the husband for being in contempt of the order, if disobeyed and on proof of willful disobedience action for contempt was sustainable.
28. As observed in 1897 (1) Ch.545 Seaward v. Paterson; "it is a punitive jurisdiction founded upon this, that it is for the good, not of the plaintiff or of any party to the action, but of the public, that the orders of court should not be disregarded, and that people should not be permitted to assist in the breach of these orders in what is called contempt of court."
29. Respondent cannot be a judge of its own cause. Issue of suspension of rent was considered by this court when order dated 1.11.2002 was passed for the reason said order takes note of letters dated 20.10.1999, 6.11.1999, 11.11.1999 and 19.11.1999. The order notes that the respondent was having difficulty in regard to use and enjoyment of the tenanted premises during certain period when letters were written. This court also took note of the fact that rent from October 1999 to December 1999 was not paid. In spite of the defense of the respondent pertaining to tenanted premises not being maintained and hence rendered unfit for occupation, directions were issued by this court that last agreed rent would be paid w.e.f. 15.5.2000 till disposal of the suit. Notwithstanding the fact that the order dated 1.11.2002 is an executable order since the respondent is in willful breach, I hold the respondent guilty of having committed contempt of the order dated 18.7.2000 as also order dated 1.11.2002.
30. Since it is a civil contempt, I grant an opportunity to the respondent to purge itself of the contempt.
31. Contempt petitions are disposed of holding the respondent guilty of having committed contempt of the order dated 18.7.2000 as well as the order dated 1.11.2002. Six weeks' time is granted to the respondent to purge itself of the contempt by paying over to the applicant the rent which it has withheld i.e. rent from 1.5.2002 to 28.11.2002. If the respondent pays the said rent, no further proceedings would be required. Should however the respondent not purge itself of the contempt, Managing Director of the respondent and those who are in charge of the affairs of the respondent would be liable to civil imprisonment for a period of 2 months.
32. Liberty granted to the applicant to seek revival for imposition of sentence if respondent does not purge.
32. Costs in favor of the applicant and against the respondent in the sum of Rs.10,000/- in each contempt petition.