S. Swaranjit Singh Kohli And Ors. vs Shri Shiv Dutt Salwan And Ors.
1983 Latest Caselaw 18 Del

JUDGMENT

Sultan Singh, J.

1. This revision under Section 115 of the Code of Civil Procedure (herein after referred to as, 'the Code') by the defendants is directed against the judgment and order dated 10th November, 1982 of the Additional District Judge refusing to hear their appeal challenging the order dated 22nd May, 1982 to temporary injunction passed by the trial court restraining them from making any construction in the, premises, during the Pendency of an application filed by the plaintiff under Order 39 Rule 2A of the Code for alleged violation of the said temporary injunction,

2. The plaintiff respondent No. 1 is in occupation of Shop No. 10 Marina Arcade, Connaught Circus, New Delhi as a tenant under defendants 1 to 3. 1 The said shop is a portion of 2 1/2 storey building known by the name of Marina Hotel and Marina Arcade. The plaintiff on 11th May, 1982 filed a suit for injunction restraining the defendants from making any construction whatsoever on the roof of the shop of the plaintiff and on the roof of the verandah in front of the said shop and also in the rear/ back compound behind the shops of the Marina Arcade in which the back portion/rear entrance of the plaintiff's shop opens. The plaintiff along with the suit filed an application under Order 39, Rules 1 and 2 of the Code for a temporary injunction. An ex parte injunction was granted by the trial court on 12th May, 1982 and after hearing the defendants the trial court by its judgment and order dated 22nd May, 1982 restrained the defendants from making any further construction on the proof of the plaintiffs shop No. 19 Marina Arcade and verandah in front of the said shop and back rear compound till the disposal of the suit.

 3.  The plaintiff-respondent No. 1    on   27th   May,  1982 filed another application under Order 39 Rule 2A   of   the   Code   for taking contempt proceedings against the defendants  for alleged violation of the injunction order
dated 22nd May, 1982.,   The contempt  proceedings are  pending in the trial
court.  
 

 4.    The defendants-petitioners on 28th June, 1982 filed an appeal under Order 43 Rule l(r) of the Code challenging the order of temporary injunction dated 22nd May, 1982.    On 5th November, 1982 the plaintiff filed an application before the Additional District Judge praying that the appeal filed by the defendants be not heard and   decided  during the pendency of the said contempt application pending before   the   trial   court.    The   petitioners in reply denied that they ever violated the temporary injunction dated ,12th  May, 1982, confirmed on 22nd May, 1982,    The Additional District Judge, however, by the impugned order dated,   10th   November, 1982 held   that the petitioners had no right to be heard until they purge themselves of the  contempt   alleged against  them.  
 

5. Learned counsel for the petitioners-defendants submits that the contempt application filed by the plaintiffs-respondents does not allege any fact constituting the violation of the injunction order, that general rule that the alleged contemners cannot be heard in the same cause during the pendency of the contempt application against them is subject to various exceptions depending on the facts of each case. He also submits that the Additional District Judge has" wrongly applied the two judgments, i.e. Kashmere Gate Charitable Trust v. M.G. Shahani & Co. (Delhi) Pvt. Ltd. and Anr. 2nd 1980 (1) Delhi 467 and Rukmani Rani v. Bhimdev Chopra, 1980 Raj. Law Reporter (Note) 49 to instant case and erred in holding that the alleged contemners cannot be heard unless they purge tliemselves.-

 6.   Para 6 of the Contempt Application dated 27th  May    1982   reads
as under :  

"That the defendants No. 4 to 11 have disobeyed the said order of this Hon'ble court and are proceeding with the-impugned construction on the roofs of the plaintiff's shop and the verandah in question The impugned construction is going on unabated inflagrant disobedience of the order of this Hon'ble court dated 22-5-1982 The plaintiff contacted the officers and servants of the defendant Nos. 4 to 11 requesting them to allow the plaintiff and his representative, to see as to what Construction they were doing on the roof of the plaintiff's shop and that have prevented them. These defendants have refused the plaintiff to ascertain the further impugned construction done by them".

A bare reading of this paragraph and other paragraphs of the contempt application do not allege in what manner the defendants had violated the temporary injunction. The petitioners-defendants have emphatically denied that they ever violated the injunction order. The defendants in reply to para 6 of the contempt application state, "No construction whatsoever has been made ever since the injunction was served on the answering defendants There can be no question of disobeying of the orders passed by this Hon'ble court on 22nd May, 1982 or for the matter of any date. The allegations about any impugned construction going on are also baseless. It would be significant to

submit here that the plaintiff has not even stated as to what construction has, according to him, been done after the orders and when". The petitioners-defendants in reply to the application before the Additional District Judge also submitted that they never violated the temporary injunction issued by the trial court. In view of these facts it has to be determined whether the appeal filed by the defendants challenging the order of temporary injunction is to be heard or not during the pendency of the contempt application.

7. Halsbury's Laws of England, Fourth Edition, Vol. 9, Para 106 page 64 reads as under :

"106. Position of party in contempt : The general rule is that a party in contempt, that is a party against whom an order for committal has been made, cannot be heard or take proceedings in the same cause until he has purged his contempt; nor while he is in contempt can he be heard to appeal from any order made in the cause; but this is subject to exceptions. Thus a party in contempt may apply to purge the contempt, he may appeal with a view to setting aside the order in which his contempt is founded, and in some cases he may be entitled to defend himself when some application is subsequently made against him. A plaintiff in contempt has been allowed to prosecute his action when the defendant had not applied to stay the proceedings. Even in cases where the rule is prima facie applicable, the court appears to retain a discretion whether or not to hear the party in contempt, and may in its discretion refuse to hear a party only on those occasions when his contempt impedes the course of justice and there is no other effective way of enforcing his obedience".

The general rule, therefore, is that a party in contempt cannot be heard until he has purged his contempt, but this is not a universal rule. The court has a discretion whether or not to hear the party in contempt. The court may refuse to hear a party in those case where his contempt impedes the course of justice and there is no other effective way of enforcing obedience. In the instant case prima facie according to the allegations contained in the contempt application there is no allegation of alleged violation of the injunction order. It has not been mentioned in what manner the defendants have made additions or alterations to the premises in question. The allegations are entirely vague. Moreover the allegations of the alleged violation of the temporary injunction are emphatically denied by the defendants. It is not possible at this stage even to hold prima facie that the petitioners have violated the temporary injunction. If the petitioners are directed to purge themselves before they can be heard it would mean that the construction which are not specified by the plaintiff is to be demolished. If finally, after hearing the contempt application it is held that the petitioners had not made any addition or alteration to the premises in question in violation of the temporary injunction the petitioners would suffer irreparable loss. This in the facts and circumstances of the present case it does not appear appropriate to direct the petitioners to purge themselves of the alleged contempt. No law has been brought to my noticed that the alleged contemner should not be heard at all during the pendency of an application for contempt against him for alleged violation of the injunction. As already stated, the general rule is that the

party in contempt cannot be heard until he has purged his contempt. But this rule has to be applied to the facts and circumstances of each case. In Kashmere Gate Charitable Trust (Supra) the appellant had given an undertaking not to alienate, transfer or let the premises in any manner till the decision of the appeal. The appellant in that case however, violated the undertaking, and alienated the premises and in fact refused to comply with the undertaking given by him. Avadh Behari, J. therefore held that the appellant in that the case had violated the undertaking and ordered that his appeal would not be heard unless he had purged his contempt. Similarly in Rukmani Rani (Supra) the respondent in that case was injuncted from making any fresh opening in a wall. The respondent had filed an appeal against the order of the temporary injunction which was heard and decided. In revision it was submitted that his appeal could not be heard unless he had purged his contempt. The respondent had explained that he had given instructions to his contractor not to demolish the wall but in spite of best efforts the wall fell down and consequently there was no opening in the will. Prima facie the court was of the view that the respondent had violated the injunction. In that case also there was implied admission of the respondent having violated the temporary injunction. The facts of these two cases are different from the facts of the instant case.

8. In the instant case the plaintiff has not even stated in his application for contempt, as to what construction had been done after the grant of temporary injunction. The Additional District Judge has erred in observing that the petitioners-defendants cannot be heard as they have been charged for committing contempt of the temporary injunction by the trial court. This was not the correct approach.

9. In the instant case the petitioners-defendants allege that they obtained sanction of the concerned authorities for making additions and alterations but on account of the temporary injunction issued by the trial court they could not proceed with the additions and alterations. Learned counsel further submits that the present contempt application and other proceedings at the instance of the plaintiff have been taken only with a view to frustrate the sanction granted in favor of the petitioners-defendants. He further submits that no harm will be caused to the plaintiff if the defendants' appeal against the order of the temporary injunction issued by the trial court is heard by the Additional District Judge during the pendency of the contempt application These submissions have force. I am of the opinion, that, prima facie, there are no allegations of alleged additions or alterations in the premises constituting the violation of the temporary injunction issued by the trial court. Further the plaintiff has not specified what additions or alterations have been carried out by the defendants since the date of issue of temporary injunction. Under the circumstances the petitioners cannot be directed to purge themselves. It cannot be said that they have no right to be heard in support of the appeal against the order of the temporary injunction The judgment and order dated 10th November, 1982 is therefore, not sustainable in law.

10. The revision petition is accepted. The impugned judgment and order dated 10th November, 1982 is set aside. The petitioners-defendants have a right to be heard in support of their appeal and the Additional District Judge is directed to hear their appeal, and decide the same at the earliest : in spite of pendency of the contempt application against them. The parties are directed to appear before the Additional District Judge on 31st January, 1983. No order as to costs.