S.K. Malik vs Nandita Singh
1996 Latest Caselaw 557 Del

JUDGMENT

A.K. Srivastava, J.

(1) This civil revision under Section 115 read with Section 151 of the Code of Civil Procedure has been filed by one S.K. Malik against impugned order dated 25.8.1995 passed by Shri Dhasrmesh Sharma, Civil Judge, Delhi in Contempt Case No. M-16/93 titled Mrs. Nandita Singh v. S.K. Malik.

(2) The revisionist is respondent in the aforesaid case.

(3) The impugned order has been passed by the Court below on an application under Order 1, Rule 10 of the Code of Civil Procedure moved by Mrs. Nandita Singh in the aforesaid contempt case.

(4) The facts appear to be that a Suit No. 1681/94 was instituted by Mrs. Nandita Singh against the revisionist for permanent injunction with a prayer that the revisionist be restrained from carrying out the demolition of his old structure bearing No. 1422 in Block-G, Chitterlings Park, New Delhi and from constructing his new structure in such a manner which may materially affect her interest and may impinges upon her rights. That civil suit was disposed of on solemn undertakings given by the revisions 24.11.1994 and 19.12.1994 that he shall construct the house strictly in conformation of the sectioned plan Building Bye Laws and Delhi Master Plan, 1990 and shall not interfere in any manner with the plaintiff's premises.

(5) Mrs. Nandita Singh got aggrieved from the conduct of the revisionist which according to her was not in accordance with the solemn undertaking given by the revisionist in the said civil suit. She, therefore, filed contempt proceedings before the Court below under Section 2(b) of the Contempt of Courts Act, 1971 read with Order 39 Rule 2-A of the Code of Civil Procedure on 7.4.1995 against the revisionist for violating has solemn undertaking given on 21.11.1994 and 19.12.1994 before the Court below. The averments are that the revisionist demolished the old structure in such a manner that it resulted in extensive damage to the applicant's building and that the revisionist has built his basement in flagrant violation of the Master Plan and Delhi Building Bye-Laws. The prayer in the application is that the contempt be punished according to law under Contempt of Courts Act, 1971.

(6) During pendency of this Contempt Case an application under Sub-rule (2) of Rule 10 of Order I of the Code of Civil Procedure, 1908 was moved by Mrs. Nandita Singh on 8.5.1995 with a prayer that Municipal Corporation of Delhi be imp leaded as defendant No. 2 in the Contempt Case. The impugned order has been passed on that application. The ground for such prayer in the aforesaid application is that the material question involved in the Contempt Case can be completely and effectively adjudicated upon by the Court only when the Municipal Corporation of Delhi is imp leaded as defendant No. 2 in the case. It was also submitted that the Municipal Corporation of Delhi cannot turn a blind eye to; the violation of the sanctioned plan and the building bye-laws.

(7) The learned Court below after giving its anxious consideration to the submissions made by the learned Counsel for the parties and on perusal of the records came to a conclusion that in view of the assertions of the applicant regarding violations made by the revisionist, and in view of the fact that the primary function of the Municipal Corporation of Delhi is to take action against unauthorised construction/violation of building bye-laws done by an occupier, the presence of the Municipal Corporation of Delhi would advance the total and satisfactory adjudication of the list of the subject-matter, the Court below also observed that the contempt proceedings before lit were in fact not independent one but were as corelation nexus as well as in continuation of the proceedings in the main built bearing No. 1861/94. It accordingly, allowed the application and directed that M.C.D. be imp leaded as defendant/respondent No. 2 in the contempt proceeding.

(8) Feeling aggrieved with the aforesaid interlocutory order, this revision has been filed.

(9) I have heard the learned Counsel for the parties and have perused the entire impugned order.

(10) The record of the proceedings in the Court below was also summoned and has perused by me. At the very outset the contempt application itself moved before the Court below needs to be discussed the title of this application reads as follows: "Petition under section 2(b) of the Contempt of Court Act, 1971 read with No. 39 Rule2-AofCPC."

(11) Section 2(b) of the Contempt of Courts Act, 1971 only gives definition of the term "Civil Contempt" saying that "Civil Contempt" means wilful disobedience to any judgment, decree, direction, order, writ or other process of a Court or wilful breach of an undertaking given to a Court. Section 2 of the said Act is only a definition Section. It does not lay down any substantive provision. The substantive provisions are elsewhere. Section 10 of the Act provides that "Every High Court shall have and exercise the same jurisdiction, powers and authority, in accordance with the same procedure and practice, in respect of Contempt of Courts; subordinate to it as it has and exercises in respect of contempts of itself". Thus it is the High Court which, under the Act, may exercise jurisdiction in respect of Contempt of the Courts subordinate to it. It is, therefore, material to examine whether the Court below has jurisdiction to deal with the aforesaid contempt case under the Contempt of Courts Act, 1971. Before, exercising any power it is the incumbent duty of the Presiding Officer of any Court to first examine whether it has jurisdiction to; entertain any petition. It is for the Court below to consider first whether it can exercise jurisdiction under the Contempt of Courts Act, 1971.

(12) The contempt petition says that the petition is to be read with Order 39 Rule 2-A of the CPC. Here again the Court below has to consider whether any proceeding under Order 39 Rule 2-A will lie in the matter. Order 39 Rule 2-A Civil Procedure Code reads as follows : "Rule 2-A. Consequence of disobedience or beach of induction.-(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 induction was granted or the order made, the Court granting the inaction 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 breach to be attached, and also order such person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the Court directs his release. (2) No attachment made under this rule shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues, the property attached by or sold and out of the proceeds, the Court may award such compensation as it thinks fit to the injured party and shall pay the balance, if any, to the party entitled thereto. "

(13) In the instant case, the Court below does not appear to have passed any order of temporary injunction under Rule 1 or Rule 2 of Order 39. As such it has to be examined whether any action under consideration. The Court below has to consider the contempt application as it is, it may not to be deemed as an application under any other statute.

(14) In this view of the matter, the Court below has first to examine whether it has jurisdiction to entertain the contempt petition itself pending before it and only thereafter any interlocutory application moved in the contempt case before it should be disposed of.

(15) Since there is no challenge here to the jurisdiction the Court below to entertain the contempt petition I am not inclined to pass any order thereto. At this stage only this much would be appropriate the impugned order be set aside and the Court below be directed to decide the application afresh after considering whether it has jurisdiction to entertain the contempt petition itself.

(16) The revision is allowed. However, it is made clear that there is no observation of this Court on the merits of the matters in dispute and the Court below shall be at liberty to form his own view and to decide the issues according to law.

(17) The impugned order dated 25.8.1995 is set aside.

(18) The matter is remanded to the Court below for decision afresh in the light of the observations made above.

(19) The C.Ms. also stand disposed of.

(20) There shall be no order as to costs.