Delhi High Court

Smt. Kanta Jain & Anr. vs Sh. Pramod Jain & Ors. on 19 December, 2008

Author: V.K.Shali

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+ FAO 390-391/2005

                                        Reserved on : 05.12.2008
                                        Date of Decision : 19.12.2008

SMT. KANTA JAIN & ANR.                            ...... Appellants
                                 Through : Ms.Chitra Gera, Advocate.


                                 Versus

SH. PRAMOD JAIN & ORS.                        ......            Respondents
                                 Through : Nemo


CORAM :
HON'BLE MR. JUSTICE V.K.SHALI, J

     1. Whether reporters of local papers may be
        allowed to see the judgment?             YES
     2. To be referred to the Reporter or not?   NO
     3. Whether the judgment should be reported in the Digest? NO

                          JUDGMENT

V.K.SHALI, J:

1. This is an appeal filed by the appellants against the order dated

28th March, 2005 passed by Sh.Praveen Kumar, learned Additional

District Judge, Delhi dismissing the contempt application under Order

39 Rule 2A of the CPC of the appellant against the respondent Nos.2 & 3.

2. Briefly stated the facts leading to the filing of the present appeal are

that the appellant no.1 herein is the wife of respondent no.1 Sh.Pramod

Jain and the appellant no.2 is stated to be the son of the appellant and

respondent no.1, from the said wedlock. On account of the matrimonial

dispute between appellant No.1 and respondent No. 1, the former is

purported to have filed a suit for Injunction against her husband

Sh.Pramod Jain praying for an injunction that she may not be

dispossessed except in accordance and due process of law from the

premises namely D-30, Kamla Nagar, Delhi under her occupation as well

as property bearing No.A-91, Kamla Nagar, Delhi (as per order of the

learned Additional District Judge, shop number was mentioned as A-9,

Kamla Nagar, Delhi). It is alleged by learned counsel for the appellant

that on 4th September, 2002, the High Court (where the suit was

originally filed but latter on was transferred to the District Courts on

account of enhancement of pecuniary jurisdiction of the District Courts)

had passed the following order:-

"IA 7845/02

Learned counsel for the plaintiff submits that Court fee shall be paid within three days. Let the needful be done within three days, as prayed.

The application stands disposed of.

S.1370/02 Let the plaint be registered as a suit.

Issue summons to defendant No.1 only for 01.10.02.

A perusal of the plaint shows that there is no cause of action against defendant No.2. The suit against defendant No.2 stands rejected. Amended memo of parties be filed within one week.

IA 7844/02

Notice to defendant No.1 for 01.10.02.

Till then defendant No.1 is restrained from dispossessing the plaintiff from third floor portion

(shown in dark blue in Annexure P3) of property No.D-30, Kamla Nagar, Delhi and also from selling, alienating, parting with possession or creating any third party interest in property No.D-30, Kamla Nagar, Delhi and shop No.A-9, Kamla Nagar, Delhi.

Provision of Order 39 Rule 3 CPC be complied with within three days.

Dasti.

IA 7846/02

Notice to defendant No.1 for 01.10.02."

s/d

September 4, 2002 R.C.CHOPRA, J."

3. It is alleged by the appellants that in gross violation of this order,

the appellant No. 1 was dispossessed from the property bearing No.A-9,

Kamla Nagar, Delhi on 16th August, 2002. It is alleged that the said

order dated 4th September, 2002 was served on 6th September, 2002 on

the respondent no.1 but respondent no.1 despite having the knowledge of

the aforesaid order has willfully and contumaciously disobeyed the order

of the learned Additional District Judge by dispossessing the appellant

from the shop No.D-9, Kamla Nagar, Delhi by surrendering the

possession of the said shop to the landlord Sh.Yogesh Chandra

Gupta-respondent no.2 herein. It is further alleged that this was done

in active connivance of SHO of the area police station who has been made

as respondent no.3.

4. This necessitated filing an application for initiation of contempt

proceedings under Order 39R 2A of CPC read with Section 10 to 12 of

Contempt of Courts Act by the appellant against respondent no.1

Sh.Pramod Jain and respondent no.2, landlord of the shop and the SHO.

During the pendency of the aforesaid Contempt Petition, the learned

counsel for the appellant is purported to have made a statement giving up

the application having been filed under Sections 10,11,12 of the

Contempt of Courts Act, 1971 and urged that the said application be

delivered as an application only under Section 39 Rule 2A CPC.

5. Accordingly, notices were issued to all the three respondents who

chose to file their reply and the learned ADJ after hearing the learned

counsel for the parties dismissed the Contempt Petition against

respondent Nos.2 and 3 on the ground that respondent Nos.2 and 3 were

not the parties to the original suit and further the respondent no.2 has

been able to place on record documents dated 16th September, 2001

which is much prior to the date of the restraint order having been passed

by the learned Additional District Judge to indicate that the respondent

no.1 who was the tenant in respect of the property bearing No.A-9, Kamla

Nagar, Delhi had voluntarily surrendered the possession of the said shop

to the respondent no.1. The Surrender Deed dated 3rd September, 2002

was also placed on record. So far as the respondent no.1 Sh.Pramod

Jain is concerned, it was observed that his guilt would be decided only

after the parties are given an opportunity to adduce their respective

evidence.

6. Feeling aggrieved by the aforesaid order dated 28th March, 2005

passed by the learned ADJ discharging the respondent Nos.2 and 3, the

appellant has preferred the present appeal.

7. I have heard the learned counsel Ms.Chitra Gera for the appellant.

None had appeared on behalf of respondent Nos.2 and 3. I have also

gone through the record.

8. First of all it is made clear that the appellant was not in possession

of the shop at any point of time, it was the respondent no.1. No doubt,

the entire order which was passed by the learned Additional District

Judge on 28th March, 2005 was only against respondent no.1 that he

shall not dispossess the appellant either from premises bearing No.30-D,

Third Floor, Kamla Nagar, Delhi or shop bearing No.A-9, Kamla Nagar,

Delhi or create third party interest in respect of shop no. A-9, Kamla

Nagar, Delhi. However, a perusal of the order would clearly show that

the restraint order was passed only against respondent no.1 and not his

agents/representatives or the third party who may be acting on behalf of

respondent no.1 nor respondent Nos.2 and 3 who were the parties to the

suit. Even if for the sake of argument, it is assumed that the restraint

order covers representatives agents etc. also even in that situation the

learned counsel at best has cited the judgments that agents or

representatives ought not to instigate or abet the crime. In the present

case, by stretch of imagination it can be said that respondent No.2 or

even 3 has instigated or abetted the violation of the order. The

respondent no.2 has only received the possession of the tenanted

premises from respondent no.1. The judgments which have been cited

by the learned counsel are not applicable to the facts of the present case.

The ratio of the said judgments cannot be applied to the present case with

mathematical precisions as the facts are different. Therefore, it was

totally untenable to hold a person guilty of having willfully disobeyed the

orders of the Court in respect of which he is neither a party nor aware of

the fact nor instigated or abetted the violation. It was contended by the

learned counsel that although respondent no.2 was not a party to the

contempt application but he had been made aware of the restraint order

having been passed by the learned Court vide letter dated 5th September,

2002 which was received by him on 6th September, 2002. Similar letter

was served on the SHO of the area also but both of them in utter violation

of the order of the Court dated 4th September, 2002 dispossessed the

appellant from the shop.

The learned counsel for the appellant has also placed reliance on

case titled Jathedar Rachpal Singh Vs. Delhi Sikh Gurdwara

Management Committee 1989 (3) Delhi Lawyer 1, wherein it has been

observed as under:-

"......... that if a person complies with a direction by another, he knows or has reason to know, is unlawful, then he, is acting unlawfully himself. He is aiding and abetting the unlawful act. He participates in it. He cannot excuse himself by saying that he was under contract to obey the direction, because no person is bound to obey a direction which is unlawful."

"In my view, Court shall not be a silent spectator to a breach of an order of injunction passed by a Court of competent jurisdiction against the persons who are subject to its jurisdiction. Neither should a Court be asilent spectator while a person not party to the suit, aids, assists, abets in the breach of an injunction order passed against a party to the suit. Indeed it has been said by Judge Curtis - Raliegh in the case Jannison V Baker (1972) 1 All E.R as follows :-

The law should not be seen to sit by limply, while those who defy it go free, and those who seek its protection lose hope."

9. The learned counsel had also cited a judgment titled as State of

Bihar Vs. Sonabati Kumari AIR 1961 SC 221, in which in Para 34 it has

been held as under:-

"........... under the law when an order of injunction is passed, that order is binding on and enforceable not merely against the person, nominee impleaded as a party to the suit and against whom the order is passed but against the agents and servants etc. of such party. If such were not the law orders of the injunctions would be rendered nugatory, by their being contravened by the agents and servants of parties. If such agents or servants etc. are proved to have formal notice of the order and they disobey the injunction they are liable to proceeded against for contempt without any need for a further order."

10. The learned counsel has also submitted that the judgment of the

Hon'ble Supreme Court in Sonabati Kumari's case (supra) was violated by

the two High Courts in the matter of Ram Prasad Singh Vs. Subodh

Prasad Singh AIR 1983 Patna 278 and K.L. Virmani Vs. ADJ & Ors.

AIR 1992 All. 326. It was also contended that the learned counsel for the

appellant also referred to a judgment of the Division Bench in Andhra

Pradesh High Court reported in AIR 1967 AP 219 wherein para 33, it has

been held as under:-

"............... it is now well settled that the courts have undoubted jurisdiction to commit for contempt a person not included in an injunction order and/or a party to the action, who knowing of the injunction aids and abets the defendant in committing a breach of it."

11. I have gone through the authorities cited by the learned counsel

and thoughtfully considered the submissions. No doubt the authorities

which are cited by the learned counsel for the appellant show that in case

a party is aware of the restraint order having been passed by a Court but

still abates or instigate the violation of the said order in the capacity of a

representative, servant or attorney of the principle party then he shall be

responsible for the contempt under Order 39 Rule 2A of the CPC. But in

the instant case it is very clear that respondent Nos.2 and 3 have not

abated or instigated the violation of the order dated 4th September, 2002

which was passed by the Court. The violation which is alleged by the

appellant is that she has been dispossessed or that respondent no.1 in

collusion with respondents No.2 and 3 has violated the order by getting