Allahabad High Court
Mazhar Khan @ Pappu vs Rajiv Kumar Prabhari Adhikari ... on 6 April, 2022
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 18
Case :- CONTEMPT APPLICATION (CIVIL) No. - 2480 of 2018
Applicant :- Mazhar Khan @ Pappu
Opposite Party :- Rajiv Kumar Prabhari Adhikari Sampatti L.D.A. Lucknow And Anr.
Counsel for Applicant :- Mohammad Aslam Khan
Counsel for Opposite Party :- Ratnesh Chandra
Hon'ble Alok Mathur,J.
1. Heard Sri Mohd. Arif Khan, learned Senior counsel assisted by Mohd. Aslam Khan, learned counsel for applicant as well as Sri Ratnesh Chandra, learned counsel for respondent.
2. It has been submitted by learned Senior counsel for applicant that applicant has filed a suit for permanent injunction on the ground that he is the owner and in possession of House No. 26/19 as well as Plot No. 57 and 58 situated at Wazir Hasan Road, P.S. Hazratganj, Lucknow which was acquired under a registered will dated 10.05.2013. The suit was contested by the defendants and subsequently it was dismissed vide order dated 28.02.2018.
3. Being aggrieved by the aforesaid judgment, the applicant had preferred a First Appeal No. 25 of 2018 before this court and by means of order dated 16.03.2018, this court had provided that in the meantime third party interest be not created after today. It has further been submitted that subsequently the said order was modified and it was provided by means of order dated 25.05.2018 that status quo be maintained till disposal of the appeal.
4. It has further been urged by learned counsel for applicant that in teeth of the aforesaid order of this Court dated 16.03.2018 as well as 25.05.2018, the Lucknow Development Authority proceeded to transfer the said property by executing a sale deed on 25.05.2018 in favour of Sri K.K. Mehrotra (HUF) and Smt. Madhu Mehrotra. It has been vehemently submitted by learned counsel for applicant that despite a clear direction issued by this Court dated 16.03.2018 and 25.05.2018 requiring status quo be maintained with regard to suit property, the Lucknow Development Authority proceeded to dispose of the same in clear defiance of the order of this Court and hence proceeding under the Contempt of Courts Act, 1971 deserves to be drawn against the respondent.
5. In support of his contention, Sri Mohd. Arif Khan, learned Senior Counsel for applicant has placed reliance on the judgment of Hon'ble Supreme Court in the case of Mulraj Vs. Murti Raghunathji Maharaj, AIR 1967 SC 1386 and submitted that there is a difference between the effect of stay order and the effect of an injunction order. Hon'ble the Supreme Court with regard to stay of an order in paragraph No. 9 has held that "the court to which the stay order is addressed must have knowledge of it before it takes effect for it can always be proved that the court to which the stay order was addressed had knowledge of it and that is not a matter which should really create any difficulty or uncertainty." While with regard to an order of injunction is generally issued to a party and it is forbidden from doing certain acts. It is well-settled that in such a case the party must have knowledge of the injunction order before it could be penalised for disobeying it.
6. The respondents on the other hand in pursuance of the notice issued by this Court has filed their counter affidavit. In the counter affidavit filed by Rajiv Kumar, Officer on Special Duty, Lucknow Development Authority in paragraph No. 3 (i) have stated that the aforesaid stay order was not in the knowledge of the deponent as such the sale deed in respect of the property in suit was executed on 25.05.2018 in favour of Sri K.K. Mehrotra HUF and Smt. Madhu Mehrotra.
7. It has further been stated by Sri Ratnesh Chandra, learned counsel for respondent that after coming to know about the interim order of this Court a suit for cancellation of the sale deed has been filed and also an application for expediting the suit proceedings has been filed. It has further been stated that an application under Order 39 Rule 1 & 2 C.P.C. has also been moved where it has been prayed that Sri K.K. Mehrotra (Purchaser) be restrained from transferring the property in the suit and also not createng any third party rights.
8. I have heard learned counsel for parties and perused the record. It is noticed that in the first appeal preferred by the applicant, the interim order was passed on 16.03.2018 and further an order of status quo was also passed on 25.05.2018. Admittedly, none of the said orders were communicated by the applicant to the Lucknow Development Authority. It has only been submitted that it was the duty of the counsel of Lucknow Development Authority to have communicated the said order to the Lucknow Development Authority. There is no material before this Court to conclude that the Lucknow Development Authority had any knowledge about passing of the impugned orders in First Appeal No. 25/2018 and consequently, it cannot be said that there was a willful disobedience of the orders passed in the first appeal. The proceeding under the Contempt of Courts Act, 1971 require that first there should be a binding order between the parties and secondly the respondents should have willfully and deliberately violated the said order. In order to conclude that the respondents have willfully and deliberately violated the orders of the writ court it has to be clearly brought forth by the applicant that the order was within the knowledge of the respondents and despite being in their knowledge they proceeded to pass orders in defiance of the order the writ court passed and thereby proceeding under the Contempt of Court Act, 1971 could have been drawn.
9. Considering the case cited by learned counsel for applicant i.e. Mulraj (Supra) is not of much assistance to the applicant inasmuch as either in the case of stay order or in an injunction, the said order should be within the knowledge of the court or the party to whom which is it is addressed before any disobedience for the alleged. In the Contempt of Courts Act, 1971, it has noticed that it is already provided that there should a willful disobedience of the order of the court, meaning thereby that a disobedience of the order can be alleged only when the person concerned has the knowledge of the order of stay or injunction passed against him.
10. There is no material either in the application preferred by the applicant nor in subsequent affidavits filed by the applicants contesting the fact wherein the defence has been raised by the respondents that the orders of this Court were not within their knowledge. This Court has no reason to believe that the orders of the writ court were in fact in the knowledge of the respondents and despite having knowledge they proceeding to violate the same.
11. In light of the aforesaid, it cannot be said that respondents have disobeyed any of the direction passed by this Court dated 16.03.2018 and 25.05.2018 and consequently, this Court is of the view that no proceeding under the Contempt of Courts Act, 1971 can be proceeded against the respondents, accordingly the contempt petition is bereft of merits and is accordingly, dismissed.
12. However, it is noticed that Lucknow development Authority have filed a suit for cancellation of the sale deed along with an application under Order 39 Rule 1 & 2 C.P.C. for restraining the purchase for the said property. Despite dismissal of the contempt petition, the respondents shall nonetheless continue to pursue the said suit and bring it at a logical conclusion and also expedite the hearing of the suit as well as application under Order 39 Rule 1 & 2 C.P.C.
(Alok Mathur, J.)
Order Date :- 6.4.2022/Ravi/
