TMI Blog2008 (7) TMI 1061X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the facts of the case are that petitioners and respondent Nos. 1, 4 and 5 (in Special Leave Petitions) are real brothers and heirs and legal representatives of one Dhulabhai Patel. It was the case of the petitioners that in 1961, one Chandulal Muljibhai Parikh and Dhulabhai Patel (father of petitioners and respondent Nos. 1, 4 and 5) purchased land bearing Revenue Survey Nos. 459/2, 464, 465, 466/1 and 466/2 admeasuring 6 acres and 9 gunthas of village Atladara, Taluka and District Baroda in the State of Gujarat from one Parvatibai Ingle by a registered sale deed. According to the petitioners, the amount of consideration was paid from the funds of Hindu Undivided Family (HUF) of Dhulbhai Patel, but name of respondent No. 1 Chandrakant Dhulabhai Patel was shown as the purchaser of the property being the eldest son of deceased Dhulabhai Patel along with Chandulal Muljibhai Parikh. Respondent Nos. 4 and 5 were minors at that time. Respondent No. 1, Chandrakant Dhulabhai Patel was also studying in a college and was having no source of income whatsoever. The entire amount was paid by deceased Dhulabhai. According to the petitioners, several documents revealed that the property was m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to anyone else. The trial Court issued notice to the defendants, but did not grant injunction as prayed by the petitioners- plaintiffs. The petitioners challenged the said order by filing Appeal from Order No. 140 of 2003 and the High Court of Gujarat vide its order dated May 2, 2003 directed the trial Court to dispose of the Application (Exh. 5) on merits within 15 days from the re-opening of the courts after summer vacation. 5. The trial Court thereafter heard the matter and dismissed the Application by refusing interim injunction. The petitioners once again preferred an appeal against the said decision in the High Court being Appeal From Order No. 241 of 2003. Along with Memorandum of Appeal, the petitioners filed Civil Application No. 5083 of 2003 for interim injunction. In paragraph 8 of the Civil Application, the petitioners prayed for interim relief. The High Court by an order dated July 23, 2003, granted ex-parte ad interim relief in terms of paragraph 8(A). 6. The said paragraph read as under; 8. The applicants, therefore, pray that: (A) Pending admission, hearing and final disposal of the aforesaid Appeal from Order, the Hon'ble Court may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted earlier is extended for four weeks from today. (emphasis supplied) 11. Being aggrieved by the said order, the petitioners approached this Court by filing Special Leave Petition (Civil) Nos. 7659-7660 of 2004. On April 26, 2004, this Court issued notice and continued interim order passed by the High Court which was, as noted earlier, in terms of prayer para 8(A). The order, dated April 26, 2004 passed by this Court read as under; The interim order already granted by the High Court will continue subject to further orders of this Court. 12. Notices were served on the respondents who appeared. Affidavits and further affidavits were thereafter filed and Special Leave Petitions were disposed of by this Court on January 10, 2005. 13. The said order read thus; The dispute in these special leave petitions pertains to the construction on certain properties which are claimed to be the joint family properties. By the impugned interim order, the High Court has permitted construction to be made on the suit properties. We have considered the reasoning of the High Court. While not affirming the correctness of the prima facie opinion expressed therein, we a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... modified, the contemners had acted in violation of the directions. And on that ground also, they are liable under the Contempt of Courts Act. 17. The learned Counsel for the petitioners, in this connection, referred to agreements to sell as well as sale deeds and acceptance of part payment or full payment of consideration during the intervening period between July 23, 2003 when the High Court granted interim relief in terms of para 8(A) and also orders dated April 26, 2004 and the final order dated January 10, 2005 by this Court. It was urged that though the suit was pending before the trial Court and the matter was sub-judice , in agreements to sell as also in sale deeds, an express and unequivocal statement was made by the contemners that their title to the property is `clear' and `marketable'. It was ordered by the Court on January 10, 2005 that if any third party right would be created, it shall be done after notice to the petitioners . No such notice, however, was given to the petitioners. It was only after the properties were sold that a 'pursis' was filed in the trial Court stating therein that certain properties were sold by the defendants. Thus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elief (though Appeal from Order was dismissed and interim relief was vacated) so as to enable the aggrieved parties to approach this Court. On January 10, 2005, however, this Court disposed of Special Leave Petitions. But taking note of the pendency of the main matter (suit), the Court did not totally vacate interim relief but modified it by imposing certain conditions. The question before us is whether the contemners had violated both the orders or any of the two orders and whether such violation or disobedience was wilful or intentional as alleged by the petitioners. If so, what punishment should be imposed on the contemners and what should be the final order in these contempt petitions. 21. Before proceeding with the consideration of rival contentions, it may be stated for the completion of record that Special Civil Suit No. 605 of 2002 instituted by the petitioners herein (plaintiffs) was decreed by the IXth Additional Senior Civil Judge, Vadodara on May 23, 2006 and it was declared that plaintiff Nos. 1 and 2 and defendant Nos. 1, 4 and 5 each has 3/16 share in the suit property and defendant Nos. 7, 8 and 9 each has 1/48 share in the said property. Preliminary decree w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Nos. 2 and 3 and were not directed against respondent No. 1. It was also stated that the respondent No. 1 is 67 years old and has been impleaded just to harass him without making any averment/allegation against him. It is, therefore, prayed to dismiss contempt petitions against him. 25. A counter-affidavit is also filed by respondent Nos. 2 and 3 controverting the averments and denying the allegations of the petitioners in the Contempt Petitions. It was stated that during the operation of interim order dated April 26, 2004, they had neither executed any sale deed nor created third party interest in the suit property. The cheques said to have been accepted by them during interim orders represented the amount paid towards consideration of the apartment booked prior to the issuance of interim orders. 26. Regarding the allegation that the title of the suit property was described as 'clear and marketable', it was stated that as per the order of the Court, what was required to be mentioned was the pendency of the proceedings. In all the sale deeds, executed by the respondents, specific recital was made that the transaction was subject to pendency of civil suit and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was thus jointly promoted for part 'A' land and part 'B' land. In course of time, property 'A' became disputed property, but there was no dispute as to property of part 'B'. It was also stated that part 'B' property abuts 30 metres wide road while part 'A' property abuts 40 meters wide T.P. Road. Thus, part 'A' property (suit property) was having better location and higher commercial value. 30. Respondent Nos. 2 and 3 admitted that Madhuben Rohit and Jasodaben Thakor deposited Rs. two lacs on October 15, 2004 for booking one of the shops which was to be constructed on Part 'B' property. But after the disposal of Special Leave Petitions on January 10, 2005, the injunction came to an end regarding part 'A' property. Under the circumstances, request of Madhuben and Jasodaben for allotment of shop in part 'A' property instead of part 'B' property was favourably considered and accepted. Cases of Hemlataben Shah, Rashmikaben and Ranjit Gulati were identical. Sale-deed in favour of Dr. Tolaram Popat was executed on January 24, 2005, i.e. after final disposal of SLP and there was no interim injun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed. 36. From the facts stated above, it is proved that there is breach of interim orders passed by this Court. So far as the defence as to properties falling in parts 'A' and 'B' is concerned, in our opinion, it is clearly an after thought and the plea has been put forward without there being anything on record. Though it was stated that initially, Madhuben, Hemlataben, Rashmikaben and Ranjit Gulati were given shops in part 'B' property, no such agreements/deeds have been placed on record. It was then stated that after interim relief was vacated and request was made by them to allot them shops in part 'A' property, no evidence/material has been adduced by the contemners. A stereo-type affidavits have been filed sworn on one and the same day, July 29, 2006 after contempt notice was served upon the respondents. Even the sale-deeds do not recite part 'A' or 'B' of the property or the fact that earlier the allottee was granted shop in part 'B' property but after the disposal of the Special Leave Petitions, request was made by the purchaser to convert the allotment from part 'B' property to part 'A' propert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion would be hit by the said order. In our considered view, it would amount to `creation of interest' prohibited by this Court. 40. The matter did not end there. Special Leave Petitions were filed in this Court by the petitioners against an interim order not granting injunction below Application, Ex.5. Though the High Court granted such injunction, but it was vacated at the time of dismissal of Appeal from Order. But all the parties to the suit were aware that the main matter (suit) was pending and rights of contesting parties in the suit-property were yet to be decided. In the circumstances, 'injunction' or 'no injunction', the title of the defendants was 'under challenge'. It was 'cloudy' and unless and until the suit is decided, it cannot be said that they had 'clear and marketable title'. Though the legal position is clear and beyond controversy, we find that an express, unambiguous and unequivocal statement is made by the contemners in all sale deeds that their title to the property is 'clear and marketable'. It was also stated that they were independent owners, possessors and occupiers of the property and there was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disobedience of the order passed by this Court , the respondents/contemners are liable to punishment? In this connection, we may refer to some of the legal provisions. Article 129 of the Constitution declares this Court (Supreme Court) to be a Court of Record having all the powers of such a Court including the power to punish for the contempt of itself . Clause (c) of Section 94 of the Code of Civil Procedure, 1908 enacts that in order to prevent the ends of justice from being defeated, the Court may, commit the person guilty of disobedience of an order of interim injunction to civil prison and direct his property be attached and sold. Rule 2A of Order XXXIX as inserted by the Code of Civil Procedure (Amendment) Act, 1976 (Act 104 of 1976) reads thus: 2A. Consequence of disobedience or breach of injunction--(1) In the case of disobedience of any injunction granted or other order made under rule 1 or rule 2 or breach of any of the terms on which the injunction was granted or the order made, the Court granting the injunction or making the order, or any Court to which the suit or proceeding is transferred, may order the property of the person guilty of such disobedience or br ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt shall impose a sentence in excess of that specified in sub-section (1) for any Contempt either in respect of itself or of a court subordinate to it. (3) Notwithstanding anything contained in this section, where a person is found guilty of a civil contempt, the court , if it considers that a fine will not meet the ends of justice and that a sentence of imprisonment is necessary shall, instead of sentencing him to simple imprisonment, direct that he be detained in a civil prison for such period not exceeding six months as it may think fit. 50. In Ashok Paper Kamgar Union v. Dharam Godha and Ors. 2004CriLJ1239 , this Court had an occasion to consider the concept of 'wilful disobedience' of an order of the Court. It was stated that 'wilful' means an act or omission which is done voluntarily and with the specific intent to do something the law forbids or with the specific intent to fail to do something the law requires to be done, that is to say, with bad purpose either to disobey or to disregard the law. According to the Court, it signifies the act done with evil intent or with a bad motive for the purpose. It was observed that the act or omission has to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd caution and sparingly in the larger interest of the society and for proper administration of justice delivery system. Mere disobedience of an order is not enough to hold a person guilty of civil contempt. The element of willingness is an indispensable requirement to bring home the charge within the meaning of the Act. 54. In Commissioner, Karnataka Housing Board v. C. Muddaiah AIR2007SC3100 , one of us (C.K. Thakker, J.) observed that once a direction is issued by a competent Court, it has to be obeyed and implemented without any reservation. If an order passed by a Court of Law is not complied with or is ignored, there will be an end of Rule of Law. If a party against whom such order is made has grievance, the only remedy available to him is to challenge the order by taking appropriate proceedings known to law. But it cannot be made ineffective by not complying with the directions on a specious plea that no such directions could have been issued by the Court. Upholding of such argument would seriously affect and impair administration of justice. 55. In All Bengal Excise Licensees Association v. Raghabendra Singh and Ors. 2007CriLJ2147 , this Court considered sever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey were in force, i.e., for violations and disobedience committed prior to the decision of the High Court on the question of jurisdiction. Holding that by virtue of the said decision of the High Court (on the question of jurisdiction), no one can be punished thereafter for disobedience or violation of the interim orders committed prior to the said decision of the High Court, would indeed be subversive of the Rule of Law and would seriously erode the dignity and the authority of the courts. (emphasis supplied) 59. 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. 60. Now, in the instant case, both the orders passed by this Court on April 26, 2004 and January 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pected 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 wrong-doer'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 be the full, frank and manly confession of a wrong done, which it is intended to be. 64. It is well-settled 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; 1955CriLJ133 : M.B. Sanghi v. High Court of Punjab Haryana 1991CriLJ2648 ]. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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