Bombay High Court
Smt. Karorabai W/O Matafer Gupta vs Smt. Mohd. Yusuf S/O Mohd. Ishaque ... on 4 October, 2016
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CONTEMPT PETITION NO.165/2013
Smt. Karorabai W/o Matafer Gupta,
aged about 63 Yrs., Occu. Household,
R/o Tatya Tope Nagar, Nagpur. ..Petitioner.
..Vs..
1. Mohd. Yusuf s/o Mohd. Ishak,
aged 75 Yrs., R/o Infront of
Sule Primary School, Parvati Nagar,
Nagpur. (..Deleted)
2. Mohd. Qamar s/o Mohd. Ishad,
aged 62 Yrs., R/o Plot No.13/14,
Jaigurudeo Nagar, Manewada Road,
Nagpur. (..Deleted)
3. Smt. Sultana wd/o Mohd. Sharif,
before marriage Ku. Sultana d/o Mohd.
Ishaque,
aged 72 Yrs., R/o Udhana Yard,
backside of Railway Institute Udhana,
Distt. Surat, State Gujarat. (..Deleted)
4. Smt. Kamrunisha wd/o Mohd. Umar,
aged 64 Yrs.
5. Shri Mohd. Saleem s/o Mohd. Umar,
aged 43 Yrs.
6. Wasima Akhtar d/o Mohd. Umar,
aged 35 Yrs.
7. Smt. Sabina Akhtar d/o Mohd. Umar,
now after marriage Smt. Sabina w/o Mohd.
Quab,
aged 35 Yrs.
8. Shri Mohd. Amin s/o Mohd. Umar,
aged 33 Yrs.
9. Mohd. Jamil s/o Mohd. Umar,
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aged 31 Yrs.
10. Miss. Samin Aktar d/o Mohd. Umar,
now after marriage Mrs. Samin Akhtar
w/o Mohd. Shabbir.
11. Smt. Najama w/o Habib Khan,
aged 64 Yrs., R/o New Basti Jalalkheda,
Tah. Narkhed, Distt. Nagpur.
12. Miss. Naseem Akhtar d/o Mohd. Umar,
now after marriage Smt. Naseem Akhtar
wd/o Mohd. Sabir.
All Contemnor Nos.4 to 10 and Contemnor
No.12 R/o J-43(i), Central Railway Colony,
Ajni, Nagpur.
13. Shri Suresh S/o Pannalal Jain,
aged 42 Yrs., Occu. Business and
Developers, R/o E-3, Sector 1,
Vashi, Navi Mumbai - 400 703.
14. Shri Dharamdas S/o Melumal Ramani,
aged 41 Yrs., Occu. Business,
R/o Gopal Nagar, Nagpur. ..Contemnors.
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Shri P.N. Kothari, Advocate for the petitioner.
Shri Abhijeet Khare, Advocate for respondent Nos.4, 6 to 10 and 12.
Shri A.B. Moon, Advocate for respondent No.5.
Shri M.G. Bhangde, Senior Advocate with Shri R.M. Bhangde, Advocate for
respondent No.13.
Shri P.S. Tiwari, Advocate for respondent No.14.
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CORAM : Z.A.HAQ, J.
DATED : 4.10.2016.
ORAL JUDGMENT
Heard Shri P.N. Kothari, Advocate for the petitioner, Shri Abhijeet Khare,
Advocate for respondent Nos.4, 6 to 10 and 12, Shri A.B. Moon, Advocate for
respondent No.5, Shri M.G. Bhangde, Senior Advocate assisted by Shri R.M. Bhangde,
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Advocate for respondent No.13 and Shri P.S. Tiwari, Advocate for respondent No.14.
None for the respondent No.11.
2. In this petition, the petitioner has made a complaint that the respondents
have wilfully disobeyed the order passed by this Court on 10 th April, 2006 and
executed sale-deed on 28th April, 2008 of the property which is subject matter of
proceedings before Court inspite of restraint order. At the time of framing of charges
and at the time of hearing of the petition, it was argued that the respondents have
wilfully disobeyed the order passed by this Court on 8th February, 2008.
After the replies were filed, the matter was heard and charges were
framed on 17th February, 2015. The respondents have given their replies to the
charges.
3. The petitioner had filed Civil Suit No.305/1982 against Banubai Barwe
praying for decree for specific performance of contract. This suit was decreed. In
proceedings for the execution of the decree passed in this civil suit, sale-deed in
respect of 1.01 Hector land out of Khasara No.53 situated at village Besa, Tahsil and
District Nagpur was executed in favour of the petitioner.
Mohammad Samad filed Regular Civil Suit No.2259/1992 (re-numbered
as Special Civil Suit No.139/1999) praying for decree for declaration that the
sale-deed executed in favour of the petitioner on 3 rd September, 1991 was not binding
on Mohammad Samad. In this civil suit, Mohammad Samad prayed for decree for
permanent injunction. This civil suit filed by Mohammad Samad was decreed on 17 th
December, 2005. Against the judgment and decree passed in Special Civil Suit
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No.139/1999, the petitioner filed First Appeal No.45/2006 before this Court. In this
first appeal an order was passed on 10 th April, 2006 recording the statement made on
behalf of Mohammad Samad that he will not create any third party interest in the suit
property and will not alienate the suit property.
On 8th February, 2008 when the first appeal was listed, none appeared for
Mohammad Samad and after hearing the Advocate for appellant in that appeal, an
order was passed directing the parties to the appeal, including heirs of deceased
Mohammad Samad, that they should not create any third party interest in the suit
property or alienate the suit property.
4. The complaint of the petitioner is that inspite of the above orders, the
respondent Nos.1 to 12 executed the sale-deed of suit property through the holder of
power of attorney - respondent No.14 in favour of respondent No.13. The petitioner
contends that the sale-deed is executed by the respondent Nos.1 to 12 and 14 in
wilful disobedience of the orders passed by this Court and, therefore, they are liable
for punishment under Section 12 of the Contempt of Courts Act, 1971. The
petitioner contends that the respondent No.13 was aware about the orders passed by
this Court still he has purchased the suit property and, therefore, he is also liable for
punishment.
5. Shri Abhijeet Khare, Advocate for respondent Nos.4, 6 to 10 and 12 has
submitted that the respondents were not aware about the undertaking given by
Mohammad Samad on 10th April, 2006. It is submitted that the respondents were not
aware about the order dated 8th February, 2008 as the respondents were not
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represented on that date and the petitioner had not communicated the order to the
respondents. It is submitted that the Advocate, who represented the respondents, had
sought discharge on the ground that the respondents had taken away the brief and he
had given no objection on Vakalatnama and the Court had passed an order on 15 th
January, 2008 discharging him. It is submitted that after Shri J.P. Pendsey, Advocate
was discharged by this Court from appearing for the respondents, the respondents
had not engaged any other lawyer and, therefore, they were not knowing about the
order dated 8th February, 2008.
It is submitted that Succession Case No.14/2007 was filed which is finally
decided by the Appellate Court in M.C.A. No.290/2008 on 5 th July, 2010 in which it is
held that the present respondent Nos.4 to 10 and 12 are not entitled for any share in
the property of Mohammad Samad. The parties state that the order passed in M.C.A.
No290/2008 is not challenged. Shri Abhijeet Khare, learned Advocate has submitted
that in view of the order passed in M.C.A. No.290/2008 on 5 th July, 2010, the sale-
deed executed on 28th April, 2008 has lost its sanctity and efficacy and has to be
treated as null and void. It is further submitted that as soon as order is passed in
M.C.A. No.290/2008, the present respondent Nos.4 to 10 and 12 have issued public
notice making it known to public at large that they are not having any right in the
property of Mohammad Samad and the power of attorney executed by them in favour
of respondent No.14 has also become inoperative. It is argued that the conduct of the
respondents shows that they have high regards for Courts and the orders passed by
the Court. It is submitted that the respondents are uneducated poor persons and are
not aware about the legal niceties and whatever has happened it is not wilful or
deliberate on the part of the respondents and considering the circumstances,
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unconditional apology may be accepted.
Shri A.B. Moon, Advocate has adopted the submissions made by Shri
Abhijeet Khare, Advocate.
6. Shri M.G. Bhangde, Senior Advocate has submitted that respondent No.13
was not aware about the restraint order passed by this Court and, therefore, it cannot
be said that the respondent No.13 has wilfully disobeyed the order and is liable for
punishment for disobeying the order.
Shri P.S. Tiwari, Advocate for the respondent No.14 has also submitted
on the same lines.
7. Shri P.N. Kothari, Advocate for the petitioner argued that the respondents
have acted in a calculated manner to frustrate the restraint orders passed by this
Court. It is submitted that alongwith the sale-deed dated 28 th April, 2008 power of
attorney executed in favour of Nazir S/o Mohammad Sharif is annexed and it
contains statement about pendency of first appeal before this Court. It is argued that
respondent Nos.13 and 14 were aware that first appeal is pending before this Court
and were also aware about the restraint orders passed by this Court. It is argued that
respondent No.13 paid 90% of the sale consideration to the respondent No.14 when
there was no stipulation in the power of attorney executed in favour of respondent
No.14 authorizing him to accept the sale consideration. It is submitted that
respondent No.13, though aware about pendency of first appeal before this Court had
not issued any public notice and had not taken steps to verify the title before
purchasing the suit property and this shows that respondent No.13 wanted to get the
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sale-deed registered surreptitiously.
Shri P.N. Kothari, Advocate has pointed out the documents filed
alongwith Civil Application No.2/2016 i.e. the office notes of First Appeal
No.45/2006. The office notes show that other Advocates had put in appearance for
the respondents on 30th January, 2008. It is argued that the office notes of first
appeal falsify the case of the respondent Nos.4 to 12 that they were not represented
when order was passed on 8th February, 2008.
8.
After considering the submissions and examining the record I find that
there is nothing on record on the basis of which it can be said that the respondent
Nos.13 and 14 were aware about the orders dated 10 th April, 2006 and 8th February,
2008. The submission made on behalf of the petitioner that respondent Nos.13 and
14 were aware about the above orders are based on circumstances and conduct of
parties. In my view, it will not be appropriate to hold respondent Nos.13 and 14
guilty of contempt as there is no evidence on record to show that they were aware
about the restraint orders.
9. As far as the respondent Nos.4 to 12 are concerned, there is sufficient
material on record which shows that throughout they were aware about the restraint
orders. Only because the Advocate/Advocates representing respondent Nos.4 to 12
had not appeared before Court on 8th February, 2008 it cannot be said that the
respondent Nos.4 to 12 were not aware about the restraint orders. Even if the
argument made on behalf of the respondent Nos.4 to 12 that they were not aware
about the restraint order passed by this Court on 8 th February, 2008 is accepted, the
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above respondents are not claiming that they were not aware about the order passed
on 10th April, 2006 by which an undertaking given by Mohammad Samad was
recorded. The respondent Nos.4 to 12 came on record of first appeal as legal heirs of
Mohammad Samad and being party to the appeal it has to be treated that they were
aware about the orders passed in the proceedings, unless they plead and substantiate
that they were not aware about the orders. The spacious plea taken by the
respondent Nos.4 to 12 in paragraph Nos.3 and 8 of the reply sworn on 4 th October,
2016 that they were not aware about the undertaking given on behalf of Mohammad
Samad on 10th April, 2006 as they were not party to the appeal at that time, cannot
be accepted. Once respondent Nos.4 to 12 were impleaded as party to the first
appeal and were represented by lawyer/lawyers it has to be considered that they
were aware about the proceedings and the orders passed in the first appeal.
In view of the above, it has to be held that the respondent Nos.4 to 12 are
guilty of contempt, having wilfully disobeyed the orders passed by this Court on 10 th
April, 2006 and 8th February, 2008.
10. I have heard Shri Abhijeet Khare, Advocate and Shri A.B. Moon, Advocate
for the concerned respondents on the point of sentence.
Considering the submission made on behalf of the respondent Nos.4 to 12
that in view of the order passed in M.C.A. No.290/2008 on 5 th July, 2010 the
sale-deed dated 28th April, 2008 has become null and void, and further considering
that the respondent Nos.4, 6, 7, 10, 11 and 12 (Smt. Kamrunisha w/o Mohd. Umar,
Wasima Akhtar d/o Mohd. Umar, Smt. Sabina Akhtar d/o Mohd. Umar, Miss. Samin
Akhtar d/o Mohd. Umar, Smt. Najama w/o Habib Khan and Miss. Naseem Akhtar
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d/o Mohd. Umar respectively) are ladies, they are sentenced to pay fine of Rs.2,000/-
(Rs. Two Thousand Only). The fine be paid within two weeks, in default of which,
the respondent Nos.4, 6, 7, 10, 11 and 12 shall undergo simple imprisonment for 15
days.
The respondent Nos.5, 8 and 9 ( Mohd. Saleem s/o Mohd. Umar, Mohd.
Amin s/o Mohd. Umar and Mohd. Jamil s/o Mohd. Umar respectively) are sentenced
to undergo simple imprisonment for 15 days and to pay fine of Rs.2,000/- (Rs. Two
Thousand Only). The fine shall be paid within 10 days, in default of which, the
respondent Nos.5, 8 and 9 will have to undergo further simple imprisonment for one
week.
The notice of contempt issued to respondent Nos.13 and 14 is discharged.
At this stage, the request is made on behalf of the respondent Nos.4 to 12
for keeping the order against them in abeyance for 15 days.
If the amount of fine is deposited within time stipulated by this order, the
order of sentence of imprisonment passed against respondent Nos.5, 8 and 9 shall be
in abeyance for 15 days.
The contempt petition is disposed in the above terms.
In the circumstances, the parties to bear their own costs.
JUDGE
Tambaskar.
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