Shaikh Samsul Hudda, Shaikh Abdul ... vs Khayber Properties & Investment ...
2003 Latest Caselaw 200 Bom

JUDGMENT

R.M.S. Khandeparkar, J.

1. Taken on board on request. Heard the learned Advocates for the parties. Rule. By consent, the rule is made returnable forthwith.

2. The petitioners are challenging the order dated 9th January, 2003 rejecting their application for postponement of the hearing of the Appeal No. 698 of 2001 till the disposal of the Interim Notices bearing Nos. 4851 and 4852 of 2002. The said notices relate to contempt proceedings against the respondents.

3. Drawing attention to Rule 11 of Order XXXIX of the Code of Civil Procedure, hereinafter referred to as "the Code", it was sought to be contended that in case the proceedings regarding contempt were heard prior to the appeal, there would be no occasion for the Court below to hear the appeal, if the respondent is found to have floured the Court's order or acted in contravention of the Court's order and the necessary penalty under the said Rule can be imposed and the appeal can be straightaway disposed of.

4. The Rule 11 of Order XXXIX of the Code, as is in force in the State of Maharashtra, empowers the Court to dismiss the suit, if the plaintiff defies or defaults in complying with the order. Certainly, such power can be exercised by the Appellate Court in relation to appeals also. But it is purely a discretionary power to be exercised judiciously and in cases where the party deserves such harsh penalty and not merely because the other side feels aggrieved by the failure on the part of the plaintiff to comply with the order. Besides, it has to be a deliberate or intentional action or inaction on the part of the plaintiff. Above all, it must be a case, to the satisfaction of the Court, fit and appropriate to invoke the powers under the provisions of the said Rule.

5. It is to be noted that before imposing the penalty under Rule 11 of Order XXXIX of the Code, it is necessary for the Court to arrive at the finding about default and/or non-compliance of the order of the Court by the party, and such default being either deliberate or intentional or wilful. Mere filing of an application for contempt proceedings, by itself, therefore, would not justify the action under Order XXXIX, Rule 11 of the Code. Undoubtedly, the Rule does not use the words like deliberate or intentional or wilful. However, the action being of penal nature in as much as that the penalty would either be non-suiting or striking of the defence on account of action under the said Rule, certainly the act for such penal action has to be deliberate or wilful and not merely an unintentional or mere failure to comply with the order. Any punishment or penalty should not be disproportionate to the nature and degree of offence or default. Therefore, the power under the Rule can be exercised only upon the finding by the Court that the default has been either deliberate or intentional or wilful.

6. It is well settled that an action for contempt of Court is always in the discretion of the Court. Merely because there is complaint of non-compliance of the order of the Court, the action for contempt of Court is not to be initiated as a matter of course. It is for the Court to decide about the same, based on the materials placed before it, and the complainant has no right of appeal if the Court decides not to take action against the person who is alleged to have committed default in compliance of the order of the Court. Likewise is the case in relation to exercise of powers under Order XXXIX, Rule 11 of the Code. The party cannot as a matter of right demand for striking of defence or dismissal of the suit for every violation or default of order at the hands of the opposite party. It is for the Court to take appropriate decision in its discretion, to be exercised judiciously, and depending upon the facts of each case.

7. It is therefore entirely in the discretion of the Court as to whether the hearing of the appeal has to be postponed or not till the disposal of the contempt proceedings sought to be initiated by the petitioners. Therefore, only point which arises for consideration is whether the Court below has exercised its discretion judiciously or not. For rejecting the request of the petitioner to postpone the hearing of the appeal till the disposal of the contempt proceedings, the Court below has given the reasons. Firstly it is necessary for the Court not to adjourn the matter for more than three occasion as per the amended Code of Civil Procedure. Secondly, the allegation of flouting of Court's order has been denied by the respondent and has asserted that the structure which is alleged to have been demolished in violation of the Court's order is very much in existence and even the photographs of such existing structure are produced on record. Thirdly, even though the respondents have, as alleged by the petitioners, brought about changes in the structure, the possession of which was ordered to be restored to the petitioners by the trial Court and which order has been stayed during the pendency of the appeal, nothing prevents the Appellate Court from passing appropriate order for restoration of the structure as on the date of passing of the order of the trial Court, while disposing the appeal in case the petitioners succeed in the appeal. In the circumstances, the lower Court has passed well reasoned order and under no circumstances it can be said that the Court has not exercised its discretion judiciously. The lower Court having decided to proceed with the appeal without waiting for the disposal of the contempt notices, no fault can be found with the same is the discretion appears to have been exercised judiciously in the matter and therefore there is no case for interference in the impugned order in writ jurisdiction. The petitioner is, therefore, liable to be dismissed.

8. At this stage, the learned Advocate for the petitioners submits that the petitioners having filed the writ petition, did not proceed with the arguments before the lower Appellate Court and the Court below thereupon has fixed the appeal for the judgment on Saturday, 15th February, 2002 and in view of rejection of the petition, the petitioners would loose the opportunity to argue the matter before the lower Appellate Court. The learned Advocate for the petitioners, therefore, requests for opportunity to the petitioners to argue the appeal before the lower Appellate Court and for issuance of necessary directions for postponement of the judgment so as to give the petitioners the opportunity of being heard in the matter. The prayer for direction for postponement of the judgment and further opportunity of being heard in the appeal is objected to by the learned Advocate for the respondents.

9. Merely because the petitioners have chosen to file the petition in the High Court, that itself was not a justification not to proceed with the arguments in the appeal. Once the appeal is fixed for hearing by the lower Appellate Court, no litigant is entitled to stall the Court's proceedings by adopting uncooperative attitude on his/her part. When the Court passes an order rejecting the prayer for adjournment of the matter, merely because he/she wants to file or has filed an appeal or petition in the higher Court, neither the litigant can insist that the lower Court should not proceed with the matter nor the litigant has right to insist that he would not co-operate with the Court and would stall further proceedings in the matter. Any such act on the part of the litigant would be contemptuous and would warrant penalty for the same. In case a request for adjournment is made and rejected by the lower Court, and thereupon the higher Court also refuses to interfere in the matter, that would also not be a justification for the litigant to contend that further opportunity should be given to him/her to argue or of being heard in the matter by the lower Court. Mere filing of the proceedings in the higher Court, by themselves, do not amount to stay the proceedings in the lower Court.

10. The petitioners inspite of having been given the opportunity to put forth their say before the lower Appellate Court, refused to co-operate with the lower Appellate Court by not making the submissions merely because they had preferred writ petition before this Court and even though, as contended by the learned Advocate for the petitioners, the Presiding Officer of this Court was not available for three days i.e., from 5th to 7th of February, 2003, the lower Appellate Court having proceeded with the matter in the absence of any stay being granted by this Court and the petitioners themselves having chosen not to make any submissions before the lower Appellate Court in the said appeal, it is too late for the petitioners to contend that the petitioners had no opportunity of being heard in the matter. In the absence of the Presiding Officer of this Court, certainly the petitioners could have moved for interim relief before the Judge holding the assignment of this Court of before the Hon'ble Chief Justice. In any case, the petitioners had enough opportunity of being heard before the lower Appellate Court and the petitioners themselves had chosen not to make submissions in the matter.

11. In any case, the matter is fixed for judgment on 15th February, 2003. Nothing prevents the petitioners from filing their submissions in writing by tomorrow evening with the concerned Court and if so filed, with advance copy to the respondents, certainly there is no reason to believe that the lower Appellate Court will not take into consideration the same while disposing the appeal. With these observations, the petition is dismissed and the rule is discharged with no order as to costs.