Delhi District Court
Kamlesh Bhayana vs Ashok Kumar Bhayana on 20 September, 2010
1
IN THE COURT OF SHRI SURINDER S. RATHI:ADJ:07:CENTRAL
ROOM NO.32:TIS HAZARI COURTS :DELHI
M05/09
KAMLESH BHAYANA
D/o Late Sh. Chet Ram Verma
R/o GH13/625, Paschim Vihar
New Delhi.
..............Petitioner / Applicant
vs.
1. ASHOK KUMAR BHAYANA
S/o Late Sh. Hans Raj Bhayana
R/o 8 /129, Ramesh Nagar,
Delhi15.
2. Ms. PHOOLAWANTI
D/o Late Sh. Hans Raj Bhayana
R/o 8 /129, Ramesh Nagar,
Delhi15.
3. BHARATI BHAYANA
S/o Late Sh. Hans Raj Bhayana
R/o 8 /129, Ramesh Nagar,
Delhi15.
............Respondents
DATE OF INSTITUTION : 17.02.2008
DATE OF FINAL HEARING : 20.09.2010
DATE OF FINAL ORDER : 20.09.2010
CONTEPT PETITION U/S 11 & 12 OF CONTEMPT OF COURTS ACT
ORDER
1. By this order I shall dispose off contempt petition filed by petitioner against @contd.
2her ExHusband apart from her brother and sister in law under Section 11 and 12 of Contempt of Court Act .
2. Brief background of the matter is that in the year 1997, petitioner Smt. Kamlesh Bhyana filed an injunction suit against her husband Dr. Ashok Kumar Bhayana with the facts that they got married in the year 1976 through matrimonial columns in newspaper. Out of the wedlock they were blessed with two children a boy and a girl who were 21 and 15 years of age respectively when the said suit was filed. Family of the petitioner was primarily settled in USA and as per her defendant married her only to get citizenship of America. Earlier the couple was living in a joint family house at Vijay Nagar, Delhi where they applied for immigration to USA. She was working as PharmacistsCumStore Keeper under Delhi Administration and defendant was also a qualified Pharmacists. Subsequently they purchased a SFS flat in Paschim Vihar qua which GPA was executed in favour of husband and other documents were executed in favour of wife. As per pleadings in plaint husband paid installments for the flat out of the money given by her and for this reason she is absolute owner having exclusive @contd.
3possession of the flat. They started a Chemist Shop as well in a rented accommodation. AS per her, defendant used to subject her with cruelty and for this reason she sent her daughter to USA. It was pleaded that on 1.9.1997, defendant left the Paschim Vihar Flat with his belongings and later came back in the evening. Upon being questioned , he subsequently left for Bombay on the pretext that he is going there for some official work. As per plaintiff she was holding green card of USA and was supposed to leave for USA by 31.10.1997 for retaining the card. She apprehended that in her absence defendant would take the possession of the flat. In this backdrop , she filed the said suit seeking direction against her husband under mandatory injunction that he should execute a sale deed in her favour apart from injunction.
3. Summons of that suit were served upon the defendant. Adinterim order was passed against the defendant restraining him from dealing with the suit property in any manner. He could not file WS for the reason that all his documents were in the Paschim Vihar flat which was locked by the plaintiff before leaving for USA.
@contd.
4
4. On 27.4.98 petitioner herein filed a contempt petition U/O 39 R 2(a) CPC with an allegation that defendant has broken open the lock of the flat which amounts to violation of adinterim order dated 17.3.1997. However, the application was disposed off by LD. Predecessor with an observation that plaintiff has a right to live in the property and defendant handed over the keys of the property to her. At that juncture she claimed to be registered owner of the property before the Court.
5. Finally defendant could not file the WS and suit of the plaintiff was decreed U/O 8 R 10 CPC. No decree of mandatory injunction directing the defendant to execute the sale deed in favour of petitioner was passed apparently because such a relief is barred under Section 41 (h) of Specific Relief Act and appropriate remedy was to file a suit for specific performance. However, defendant was restrained from interfering with the possession of the plaintiff or for transferring the property to the other party. No. order was passed qua the tenanted shop. Defendant was also directed to hand over the original GPA of the flat to the plaintiff in the decree dated 9.9.98.
@contd.
5
6. In this backdrop the contempt petition in hand was filed on 17.12.08 on the plea that after the passing of the aforesaid decree , parties have got divorced vide decree dated 23.9.04. Both of them are now citizen of USA. As per her all the three respondents, illegally trespassed into the Paschim Vihar flat. She came to know of it in USA on 9.11.1998 from a neighbour in India . She came to India on 6.12.2008 and lodged FIR no.66/08 U/s448 IPC with PS Nihal Vihar. Terming this act of respondent to be violative of decree dated 9.9.1998, the petition in hand was filed.
7. Upon issuance of notice thereof a detailed reply was filed by the respondent no.1 wherein he took an objection that the decree dated 9.9.98 was obtained by misleading the court in so far as the decree is qua flat no,.GH13/625, SFA Flats Paschim Vihar while the purported titled documents referred to by the petitioner are qua flat no. G17 Pocket GH13, CategoryII, Paschim Puri, Delhi. Perusal of photocopy documents filed, while passing of the above decree, fortify the objection of the respondent and it is evident that particulars mentioned in document like Agreement to Sell, affidavit, Will etc are not tallying with the particulars mentioned in the plaint and the decree. This is major ambiguity qua which no clarification is put forth by the petitioner.
@contd.
6
8. Another objection taken is that by virtue of GPA dated 8.2.1988 qua the suit property executed by admitted erstwhile owner Sh. Gurjeet Singh S/o Sh. Jhanda Singh, respondent no.1 has a better title over the property as compared to the petitioner. It is pleaded that as per the admitted GPA, the erstwhile owner transferred all rights to manage, control, look after and supervise the affairs of the flat to him. He also authorised him to hand over the possession of the flat to the purchaser after execution of sale deed. It is also pointed out that defendant has every right to occupy the flat by virtue of this document. Moreso, the electricity connection, watter connection and house tax are in his exclusive name .
9. This Court can not loose sight of the fact that the decree dated 9.9.1998 was passed only under Order 8 rule 10 CPC solely because defendant could not file written statement. It is evident from the record that plaintiff had misled the court during the course of trial in so far, as per order dated 27.4.98 while pressing her earlier contempt application she claimed to be registered owner of the property. This is a bald lie as even today she is admittedly not the registered owner. The manner in which specific performance of agreement to @contd.
7sell was sought under the garb of the mandatory injunction also shows that petitioner did not approach the court with clean hands.
10.It is admitted case of the parties, that after jointly acquiring the flat by virtue of documents like Agreement to Sell, GPA, Receipt , Will and affidavit on 8.2.1988, they both started living there together as a family with their children. They lived there for about a decade before matrimonial disputes started arising between them. When both the couple had separate individual documents in their name and both were jointly occupying the suit flat, in my considered view , plaintiff can not claim that she has sole execlusive possession of the flat. Merely by holding an agreement for sale , plaintiff had the demeanor of claiming herself to be registered owner of the suit flat before Ld. Predecessor, even though Section 54 of Transfer Property Act, lays that an agreement to sell does not create any right, title or interest in the property.
11.Law on contempt is well settled. By plethora of case laws it is ruled that contempt reference has to be made only in rare instances where there is blatant violation of the order of the court.
@contd.
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12. In case titled VIJAY PANDIT V. M/S.GR INVESTMENTS INDIA PVT. LTD. (DELHI) 2009(159) D.L.T. 78 it has been observed that:
"Exercise of power under Contempt of Courts Act of 1971 is comparatively a rarity and has to be used sparingly and in the larger 7 interest of society and for proper administration of justice. Mere disobedience of an order may not be sufficient to amount to a " Civil Contempt" within the meaning of Section 2 (b) of the Act of 1971. The element of willingness and intention is an indispensable requirement to take action. If two interpretations are possible as to the action of alleged contemnor and one of such interpretations raises doubts about the willful nature of his conduct, contempt will not be made out."
Hon'ble Supreme Court of India in the case Perspective Publications (Pvt.) Ltd. v. State of Maharashtra (AIR 1971 SC 221) has observed at page 230, inter alia thus:
"The summary jurisdiction by way of contempt must be exercised with great care and caution and only when its exercise is necessary for the proper administration of law and justice." (Per Grover, J.) Contempt of Court is essentially a matter which concerns the administration of justice and the dignity and authority of judicial Tribunals. It is not a right of a party to be invoked for the redress of his grievances. It is not also a mode by which the rights of a party, adjudicated upon by a Tribunal can be enforced against another party.
@contd.9
Moreover, if the matter, as in the present case, requires a detailed inquiry, it must be left to the Court which passed the order and which presumably is fully acquainted with the subjectmatter of its own order. When the matter relates to mere infringement of an order, as between parties, it is clearly inexpedient to invoke and exercise contempt jurisdiction as a mode of executing the order, merely because other remedies may take time or are more circumlocutory in character. Contempt jurisdiction should be reserved for what essentially brings the administration of justice into contempt or unduly weakens it (vide (1964) 68 Cal WN 148, AIR 1951 Pat 231, AIR 1966 Mad 21 and AIR 1971 ALL 231).
In another case titled Mahipal Singh Verma v. Atma Ram Srivastava, (Allahabad) 1991 Civ.C.C. 354 it has been observed that :
"To find a person guilty of contempt of Court on the charge of disobedience, it must first be found out whether the order in respect of which violation is alleged, is such which could place the person required to follow the order in two minds or whether that order was capable of interpretation other than that which was alleged. Where two opinions are possible or a definite conclusion is not possible regarding a single interpretation, or oneness of the order it would not be safe to hold a person guilty of the charge of the contempt for having acted upon interpretation what he bona fide thought to be the correct."
13.Coming to the facts of this case , while filing her injunction suit, on 17.10.1997, she conceded that both of them were living together as a legally wedded couple with their children. Defendant had left for Bombay for official @contd.
10work as a Government Servant. She was desirous of leaving for USA to get her green card renewed. Meanwhile before leaving she filed the said suit apparently only to save her joint possession of the flat.
14. It can not be said that respondent husband was living in the flat as license of his wife. Both the couple were living in the flat and neither of them was absolute legal owner and both had respective immature documents in their name. Both can be said to be sailing on the same boat. The decree passed by LD. Predecessor dated 9.9.98, does not talk of exclusive and sole possession of the plaintiff . Intention of Ld. Predecessor is evident from order dated 27.4.98 wherein he writes that " Plaintiff has a right to live in the property." As such the injunction passed in this matter is per se only aimed at safeguarding her right to live in the flat. This decree nowhere grants her exclusive sole possession of the flat.
15.By virtue of his joint possession where they continued to live together, he cannot be said to have committed a contempt of court. Before parting with this order it is pertinent to mention here that even till today petitioner is not sure of the title of the suit flat and she has never ever filed any suit for specific performance since for last more than 3 decades even though she is @contd.
11just holding an agreement to sell in her favour. Legal consequences of such like documents has been discussed in length by Hon'ble Supreme Court in latest case titled as SURAJ LAMP & INDUSTRIES PVT. LTD. VS. STATE OF HARYANA AND ANOTHER (2009) 7 SCC 263 held that :
" The "power of attorney sales", as noticed above, was adopted to overcome the restrictions/prohibitions in terms of allotment and the rules of allotment of DDA governing the allotment of flats. Such transactions were obviously irregular and illegal being contrary to the rules and terms of allotment. Further, in the absence of a registered deed of conveyance, no right, title or interest in an immovable property could be transferred to the purchaser"
16.As such in the light of aforesaid discussion and case laws I am of the considered view that facts disclosed in the contempt petition does not warrant a reference of contempt to the Hon'ble High Court. Application is accordingly dismissed, parties are however, left to bear their own costs. File be consigned to RR. TCR be also consigned to RR.
ANNOUNCED AND DICTATED IN OPEN
COURT ON : 20.09.2010 (SURINDER S. RATHI)
ADJ:07:CENTRAL:DELHI
@contd.