Delhi High Court
Mrs.Shobha Shrestha vs Mr.Jay Randolph Vass & Another on 31 March, 2009
Author: Reva Khetrapal
REPORTED
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% DATE OF DECISION: March 31, 2009
+ CCP(O) 86/2004 in CS(OS) 471/1996
MRS. SHOBHA SHRESTHA ..... Petitioner
Through: Mr. Atishi Dipankar, Advocate
versus
MR. JAY RANDOLPH VASS & ANR. ..... Respondents
Through: Ms. Geeta Luthra, Advocate for R-1
Mr. A.K. Singla, Sr. Advocate with
Mr. Rajesh Baweja, Advocate for R-2
CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
1. Whether reporters of local papers may be allowed
to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?
: REVA KHETRAPAL, J.
1. By way of this application under Order XXXIX Rule 2A read with
Article 215 of the Constitution and Section 151 of the Code of Civil Procedure,
the petitioner seeks initiation of Contempt of Court proceedings against the
respondents No.1 and 2 for intentionally and willfully disregarding and
disobeying the order dated 23rd February, 1996 passed by this Court in IA
No.1856/1996 in CS(OS) 471/1996.
2. The backdrop in which the present contempt petition came to be filed is
a long drawn out legal battle between the parties on various fronts. The
petitioner had filed Suit No.471/1996 against Mrs. Melanie Vass Simon, Mrs.
CCP(O) 86/2004 in CS(OS) 471/1996 Page No. 1 of 36
Dorie Vass Guidon, Mrs. Alexandra Vass Slusher and Mr. Jay Randolph Vass,
etc. for specific performance and other relief in respect of the Agreement of
Sale dated 24.02.1990. The said Agreement of Sale pertained to Plot No.34,
Vasant Marg, Vasant Vihar, New Delhi, admeasuring 1960 sq. yards
approximately, with a residential house and an outhouse constructed thereon.
The share of the co-owners of the aforesaid property was stated to be as
under:-
(a) Mrs. Sanjivani Prabhakar Kelavkar - 25%
(b) Ms. Lilla M Shrinagesh - 25%
(c) Mrs. Melanie Vass Simon - 31.25%
(d) Mrs. Alexandra Vass Slusher - 6.25%
(e) Mrs. Dorie Vass Guidon - 6.25%
(f) Mr. Jay Randolph Vass - 6.25%
3. The petitioner had entered into different agreements with the co-owners
for the purchase of the property in question, viz., Agreement for Sale dated
13.08.1988 with Mr. Prabhakar Kelavkar, Agreement for Sale dated
22.08.1988 with Mrs. Leela M. Shrinagesh and Agreement for Sale dated
24.02.1990 with Mrs. Melanie Vass Simon, Mrs. Dorie Vass Guidon, Mrs.
Alexandra Vass Slusher and Mr. Jay Randolph Vass. The last agreement dated
24.02.1990 was entered into and executed on behalf of the sellers by the
CCP(O) 86/2004 in CS(OS) 471/1996 Page No. 2 of 36
General Power of Attorney holder Mr. A.P. Venugopalan.
4. The plaintiff's case in Suit No.471/1996 was that the defendants had not
taken steps to complete the conveyance of the said property in favour of the
plaintiff (the petitioner herein), compelling her to file Suit No.471/1996 and
two other suits, i.e., Suit No.472/1996 and 473/1996 for specific performance
of the Agreements for Sale dated 13.08.1988, 22.08.1988 and 24.02.1990.
5. On filing of the aforesaid suits, this Court vide its order dated
23.02.1996 in IA No.1856/1996 in Suit No.471/1996 granted injunction
against the defendants No.1 to 4 from alienating or entering into any
Agreement for Sale of property in Suit with any third party. The order dated
23.02.1996, being the genesis of the present contempt petition, is extracted
hereinbelow:-
"23.2.1996
Present: Mr. A.M. Khanwilkar with Ms. Poonam
Kumari for the plaintiff.
S.471/96
Counsel for the plaintiff submits that summons in this
case be issued to defendant No.1 to 4 only against whom
specific performance of agreement to sell is sought. The
other defendants have been impleaded as proforma
defendants because they also have undivided share. A
separate suit has also been instituted against them for
specific performance.
Issue summons to defendant Nos.1 to 4 both by
ordinary process as well as registered A.D. cover and
through attorney for 22.07.1996.
CCP(O) 86/2004 in CS(OS) 471/1996 Page No. 3 of 36
IA No.1856/96
Notice for 22.7.1996.
Having regard to the fact that agreement to sell has
been executed in favour of the plaintiff and substantial part
of the consideration has been paid and the conduct of the
defendants in not executing the sale deed, the plaintiff's
apprehension regarding possible alienation of property
appears to be justified.
In this view of the matter, let the defendants 1 to 4 be
restrained from alienating or entering into any agreement
for the sale of the property in Suit with any third party.
Provisions of Order XXXIX Rule 3 CPC be complied
with.
Dasti.
FEBRUARY 23, 1996 Sd/-
JUDGE"
6. The petitioner in the first week of June, 2004 came to know that during
the operation of the aforesaid interim injunction granted by this Court by its
order dated 23.02.1996, the respondents herein had entered into an agreement
dated 30.10.2000 with Mr. Kanwarjeet Singh Sandhu for the sale of 1/6th share
of the suit property, (even though the respondent No.1 always held only 1/16th
share of the suit property), and filed the present petition alleging that the
respondents had knowingly, intentionally and willfully disregarded and
disobeyed the order dated 23rd February, 1996 by entering into the said
agreement and are liable to be punished for the same.
7. Notice of the petition was issued to the respondents No.1 and 2.
Thereafter, the matter was adjourned from time to time on the statement of the
counsel for the petitioner that the parties were making efforts to arrive at an
CCP(O) 86/2004 in CS(OS) 471/1996 Page No. 4 of 36
amicable settlement. On 2nd April, 2007, the petitioner having compromised
the matter with the respondent No.1, the learned counsel for the petitioner
stated that the contempt petition was being pressed against the respondent No.2
only. Notice was accordingly issued to the respondent No.2 to remain
personally present in Court on the next date, i.e., 17th May, 2007. On 17th May,
2007, the counsel for the respondent No.2 entered appearance and sought time
to file affidavit. On 4th February, 2008, the counsel for the contemnor stated
before the Court that the contemnor had filed an unconditional apology, which
was on the record. The contemnor was then directed by the Court to be
personally present on 13th March,2008. On 13th March, 2008, the Court again
directed the contemnor and her daughter to appear in the Court on the next
date. An appeal was filed against the said order, being FAO(OS) 166/2008,
which was disposed of by a Division Bench of this Court on April 07, 2008.
The relevant portion of the order dated April 07, 2008 is as follows:-
"...........................................We have considered the said
submissions. As it appears from the order, the learned
Single Judge has called for the records of the Suit
No.233/2007 only for the purpose of perusal and not for
disposal. In any case, the learned Single Judge would not
be able to dispose of the said case as it is pending in some
other Court.
So far the issue with regard to settlement being
arrived at between the parties in the suit is concerned,
the said aspect may be brought to the notice of the learned
Single Judge, who shall consider the aforesaid position
on the next date when the contempt petition is listed for
CCP(O) 86/2004 in CS(OS) 471/1996 Page No. 5 of 36
consideration.
If in case any of the parties is unable to attend the
Court personally for medical reasons, the said aspect shall
also be brought to the notice of the learned Single Judge,
who shall consider the same in accordance with law.
All the contentions that are being raised by the
appellant would also be effectively raised by the counsel for
the appellant before the learned Single Judge, which, when
raised, shall be appreciated and orders as deemed fit and
proper and in accordance with law shall be passed.
The appeal stands disposed of in terms of the
aforesaid order.
Copy of the order be given dasti to the counsel
appearing for the appellant."
8. On the next date, i.e., on 11th April, 2008, exemption from personal
appearance was sought on behalf of the respondent No.2 on medical grounds.
The respondent No.2 eventually appeared on July 17, 2008 and considering the
fact that she appeared before this Court in a wheel-chair and her state of health
seemed to be frail, and the further fact that she verbally re-affirmed the earlier
unconditional apology tendered by her, her future presence in Court was not
insisted upon.
9. Arguments were addressed by the learned counsel for the petitioner,
Mr. Atishi Dipankar and the learned senior counsel for the respondent
respondent No.2, Mr. A.K. Singla at great length. The learned counsel for the
petitioner vociferously contended that the respondent No.2 had been persistent
in her efforts to somehow either grab the share of the respondent No.1 or to
CCP(O) 86/2004 in CS(OS) 471/1996 Page No. 6 of 36
sell his share to a third party. He submitted that on 20 th March, 1989, a suit for
ejectment had been filed by all the six co-owners of Plot No.34, Vasant Marg
against the tenant, who was the husband of the respondent No.2, namely, Mr.
Bhag Israni. On the demise of the original tenant Mr. Bhag Israni, the
respondent No.2 filed application for substitution in the suit for eviction
pending in the Tis Hazari Courts on the basis that she was the second wife of
the late tenant under Islamic law. Forged and fabricated documents were filed
in support thereof. Thus, while the passport of the respondent No.2 dated 20 th
May, 1996 reflects that she is a Hindu and the death certificate dated
30.03.1998 of Mr. Bhag Israni also establishes that he was a Hindu and even in
the reply to the legal notice dated 16.01.1989 for termination of the tenancy, no
claim or assertion was made that the respondent No.2 was the second wife
under Islamic law of the tenant (despite the fact that there was specific
demand in this notice that she should also vacate the tenanted premises), the
respondent No.2 in her application for substitution for the first time claimed
that she was the second wife of the late tenant under Islamic law.
10. The learned counsel further contended that in the meanwhile in the year
1996 itself, Suit Nos.471, 472 and 473/1996 had been filed for specific
performance of the Agreement for Sale dated 13th August, 1988 with Mr.
Prabhakar Kelavkar (25% share), Agreement for Sale dated 22nd August, 1988
CCP(O) 86/2004 in CS(OS) 471/1996 Page No. 7 of 36
with Mrs. Leela M. Shrinagesh (25% share) and Agreement for Sale dated 24 th
February, 1990 with Mrs. Melanie Vass Simon, Mrs. Dorie Vass Guidon, Mrs.
Alexandra Vass Slusher and Mr. Jay Randolph Vass (the respondent No.1
herein), and on 23rd February, 1996, an interim injunction order was passed by
this Court in Suit No.471/1996 restraining the defendants No.1 to 4 from
alienating or entering into any Agreement for Sale of the property in suit with
any third party. Similar interim injunction orders were passed in the other two
suits, i.e., Suit No.472/1996 and Suit No.473/1996. The respondent No.1,
Mr. Jay Randolph Vass vehemently contested the said suits from 1996 till
December, 2006 and submitted that Mr. A.P. Venugopalan had never been
authorised to sell his share in the suit property and that the petitioner in order
to obtain ex parte order dated 23rd February, 1996 had concealed the material
facts. The respondent No.1 on 15th August, 1996 executed Power of Attorney
in favour of the respondent No.2, Lina Kilachand. The said Power of Attorney
authorised the respondent No.2 to contest the aforesaid suit on his behalf and
accordingly the respondent No.2 contested the said suit only as the Power of
Attorney of the respondent No.1, who was defendant No.4 in the suit. In the
years 1996-1997, compromise applications were filed by all the defendants
except the respondent No.1. In the following year, i.e., in the year 1998, the
respondent No.1 through the respondent No.2 filed Suit No.2021/1998 against
CCP(O) 86/2004 in CS(OS) 471/1996 Page No. 8 of 36
all the co-owners, the purchaser and Mr. A.P. Venugopalan inter alia for
damages against Mr. A.P. Venugopalan, whose Power of Attorney had been
revoked by the respondent No.1.
11. The learned counsel for the petitioner urged that the respondent No.2
now started making persistent efforts to somehow or the other sell the share of
the respondent No.1 to a third party. The aforementioned Agreement to Sell
dated 30th October, 2000 was entered into by the respondent No.2 with Shri
Kanwarjeet Singh Sandhu wherein Jay Randolph Vass's share of 1/16th was
wrongly stated by her to be 1/6th and was sought to be sold for Rs.2,80,00,000/-
(Rupees Two Crores Eighty Lakhs Only). The learned counsel pointed out that
as per Clause 1 of this agreement, the respondent No.2 took Rs.20,50,000/- in
cash on the execution of this agreement which was expressly admitted and
acknowledged by her. As per Clause 2 of this agreement, the complete
documents were to be executed in favour of the purchaser by the respondent
No.1 for transfer of the title in favour of the purchaser of the property by 15 th
December, 2000. As per Clause 3 of this agreement, on receipt of the balance
sum of Rs.2,59,50,000/- on execution of the documents, the respondent No.2
was to hand over possession of the said property to the purchaser on or before
30th December, 2000. Ms. Uma Singh, daughter of the respondent No.2 was a
witness to this transaction and was held to be personally liable for the money
CCP(O) 86/2004 in CS(OS) 471/1996 Page No. 9 of 36
paid to the respondent No.2 for the due performance of the agreement. Both
pages of this agreement were signed by the respondent No.2 and by the
purchaser Shri Kanwarjeet Singh Sandhu. Ms. Uma Singh signed the second
page of the agreement as a witness. Thus, the learned counsel submitted that
in the year 2000, the respondent No.2 sought to sell the share of the respondent
No.1 and even agreed to transfer possession of half of the suit property even
though she had no right whatsoever to transfer possession of half of the suit
property, which she was illegally occupying as an unauthorised person. All
this was done during the subsistence of the injunction order passed by this
Court which was vacated subsequently on 26th May, 2004 only to be restored
by the Division Bench in FAO(OS) 119/2005 filed by the petitioner against the
said order. This resulted in the filing of the present petition, which, however,
was filed on 7th June, 2004 on the petitioner gaining knowledge of the
agreement dated 30th October, 2000 entered into by the respondent No.2.
12. During the pendency of the present petition, on 19.12.2006, the
respondent No.1, Jay Randolph Vass (defendant No.4 in Suit No.471/1996)
and the petitioner (plaintiff in Suit No.471/1996) entered into a compromise.
On the same date, i.e., on 19.12.2006, the respondent No.1 revoked the Power
of Attorney dated 15.08.1996 granted by him to the respondent No.2,
Mrs. Lina Kilachand. On 19.12.2006, an irrevocable Power of Attorney was
CCP(O) 86/2004 in CS(OS) 471/1996 Page No. 10 of 36
issued by the respondent No.1 in favour of Mr. O.P. Tyagi and the petitioner
herein, Mrs. Shobha Shrestha, both Directors of M/s. Team Design Pvt. Ltd.
13. The learned counsel for the petitioner next invited the attention of this
Court to the order dated 19.01.2007 passed in IA No.690/2007 in CS(OS)
471/1996 whereby and whereunder the respondent No.1 entered into a
compromise with the petitioner Mrs. Shobha Shrestha, and the respondent
No.2 through counsel for the first time asserted that her Power of Attorney was
irrevocable. The said order, being apposite, is being reproduced hereunder:-
"19.01.2007
Present: Mr. Atishi Depanker, Advocate for plaintiff.
Mr. Rajiv Nayar, Sr. Advocate with Ms. Shiraz
Patodia, Adv. Ms. Priyanka Sharma, Adv. and
Ms. Anusuya S. Sinha, Adv. for non applicant.
Ms. Geeta Luthra, Advocate, Mr. Sanjay
Sahay for defendant No.4.
Mr. Santosh Paul with Mr. Abhishek K. Rao
for defendants No.1 to 3.
+ IA No.690 of 2007 in CS(OS) No.471/96
* This application has been made under Order 23 Rule
3 read with Section 151 of CPC and under Order 15 Rule 2
read with Section 151 of CPC on behalf of Mrs. Shobha
Shrestha, plaintiff and Mr. Jay Randolph Vass, defendant
No.1 stating therein that the parties are compromising the
matter intestate and requested this Court to take the
compromise on record. Mr. Rajiv Nayar, Sr. Advocate
appears on behalf of earlier power of attorney holder of
defendant No.4. The power of attorney holder Mrs. Lina R.
Kilachand was the attorney holder of defendant No.4 and
she had engaged counsel on behalf of defendant No.4. The
defendant No.4 revoked the power of attorney in favour of
Mrs. Lina R. Kilachand and appointed another counsel to
CCP(O) 86/2004 in CS(OS) 471/1996 Page No. 11 of 36
help him in entering into a compromise. Mr. Rajiv Nayar
submits that Mrs. Lina R. Kilachand has a right in the
property independent of defendant No.4. She has 1/16th
Share in the property and on the basis of an Agreement to
Sell and irrevocable power of attorney. It is submitted that
all these documents were executed in 2001 and 2004. This
suit is going on since 1996. Despite claiming in a part of
property in her own right since 2001, she did not make any
application in the suit to be made a necessary party. When
the parties have entered into compromise, suddenly she
submits that she had a right in the property.
I have perused the documents viz. the agreement to
sell, power of attorney, irrevocable Power of Attorney etc.
on the basis of which Mr. Nayar wants this Court to stay in
recording compromise. Prima facie, it is apparent from
these documents that defendant No.4 could have revoked the
power of attorney executed by him since only a power of
attorney to manage and look after the property was given by
him. The alleged irrevocable Power of Attorney is not a
registered power of attorney. Even the stamp duty is not
there on agreement to sell nor the agreement to sell is
registered. Mr. Nayar submits that he will be either filing
an application to be impleaded as a party in the suit or
filing an independent suit and, therefore, requests for
holding up the compromise between parties.
Post this matter on 22nd January, 2007.
Sd/-
January 19, 2007"
14. Similar orders were passed in IA No.688/2007 and IA No.686/2007 in
CS(OS) No.472/1996 and CS(OS) No.473/1996. On the same date, i.e., on
19.01.2007, an application filed by the defendant No.2, being IA No.683/2007
was disposed of by the learned predecessor of this court vide order dated
19.01.2007. On 22/01/2007, on a joint application filed under Order 23, being
CCP(O) 86/2004 in CS(OS) 471/1996 Page No. 12 of 36
IA No.690/2007 in CS(OS) No.471/1996, the following order was passed by
the Court:-
"22.01.2007
Present: Mr. Atishi Depanker for the plaintiff.
Ms. Geeta Luthra for defendant No.4.
Counsel for the non-applicant.
IA No.690 of 2007 in CS(OS) No.471/1996
This is a joint application under Order 23 Rule 3
CPC, filed by plaintiff and defendant No.4 whereby the
parties have settled their disputes.
This suit was filed by the plaintiff against six
defendants. The contesting defendants in this case were
defendant No.1 to 4, Defendant No.4 was initially
represented through attorney Mr. A.P. Venugopalan,
thereafter through attorney Mrs. Lina R. Kilachand and
appointed another attorney namely Mr. Tyagi and Mrs.
Shobha Shrestha. However, defendant No.4 personally
signed application under Order 23 Rule 3 CPC, which is the
subject matter of the disposal, for a compromise. Counsel
on behalf of Mrs. Lina R. Kilachand submits that Mrs. Lina
R. Kilachand was given irrevocable power of attorney and
this could not be revoked by defendant No.4. Counsel also
submits that Mrs. Lina R. Kilachand had become owner of
1/16th of the share in the property by virtue of irrevocable
power of attorney for consideration. This fact is denied by
the plaintiff. Mrs. Lina R. Kilachand at no stage had
claimed herself to be the owner of any part of the property
in the suit, neither she is defendant in the suit. If she had
any right in the property, she may lay her claim by way of
an independent suit. This suit was between plaintiff and the
defendants No.1 to 6 and plaintiff and contesting defendants
have entered into an Agreement and pray for passing a
decree in terms of the Agreement. I consider that there is no
impediment in passing a decree in respect of subject matter
of the suit, if effective and affected parties are agreeable.
There are two applications, under Order 23 Rule 3
CPC. One is jointly of the plaintiff is decreed in terms of the
CCP(O) 86/2004 in CS(OS) 471/1996 Page No. 13 of 36
compromise between plaintiff and defendant No.4. The
compromise application shall form part of the decree which
is marked at Exhibit C-1. Parties shall be bound by the
compromise.
The compromise only decided inter se rights of the
parties and shall not absolve them of other legal
obligations. Decree sheet be prepared.
Defendant No.4 submits that defendant No.4 at no
time had sold any of the part of his property to Mrs. Lina R.
Kilachand or any one else. However, if Mrs. Lina R.
Kilachand file any suit, defendant No.4 shall contest the
same. Suit 471/96 stand disposed of in terms of the
compromise.
Parties are left to bear their own costs.
File be consigned to the record room.
Sd/-
January 22, 2007"
15. The learned counsel for the petitioner has next drawn my attention to
the fact that in February, 2007, Suit No.233/2007 was filed by the daughters of
Mrs. Lina R. Kilachand, viz., Ms. Uma Singh and Ms. Bina Kilachand against
the respondent No.1 Jay Randolph Vass, their mother and other co-owners for
specific performance of the agreement dated 1st June, 2004 allegedly executed
by the respondent No.1 in favour of the daughters on the basis of the Power of
Attorney dated 15.08.1996. Power of Attorney dated 02.06.2004 and letter of
handing over and taking over of 50% of the property were also filed for the
first time in February, 2007. The learned counsel for the petitioner submits
that this clearly reflects the intention of the respondent No.2 and brings to the
fore the fact that the respondent No.2 had no compunction in violating orders
CCP(O) 86/2004 in CS(OS) 471/1996 Page No. 14 of 36
passed by this Court if it led to monetary benefit to her. A glance at the
Agreement to Sell dated 1st June, 2004, the counsel submitted, shows that the
entire share of the respondent No.1, Jay Randolph Vass was sought to be sold
by the respondent No.2 to her daughters for a total sale consideration of Rs.10
lakhs only. The respondent No.2 entered into this agreement being fully aware
of the interim orders passed by this Court, and also having filed Suit
No.2021/1998 on behalf of the respondent No.1 in this Court, and having
throughout participated in all the legal proceedings.
16. Per contra, the stand of the learned senior counsel for the respondent
No.2, Mr. A.K. Singla is that the respondent No.2, as the duly appointed lawful
Power of Attorney holder of the respondent No.1, was contesting Suit
No.471/1996 till almost the end, when all of a sudden fresh Power of Attorney
was filed by the respondent No.1 and the respondent No.1 in the said suit
entered into a compromise with the petitioner, resulting in the suit being
disposed of on 22.01.2007. According to him, the respondent No.2, being the
spouse of the tenant of the said premises, Shri Bhag Israni, had been residing
in the premises, more particularly described as 34/1, Vasant Marg (around 50%
of the entire suit property, i.e., 34, Vasant Marg) with her late husband and her
daughters since her marriage. From 29th March, 1998 (i.e., the date on which
Shri Bhag Israni expired), the respondent No.2 became the tenant of the said
CCP(O) 86/2004 in CS(OS) 471/1996 Page No. 15 of 36
premises under her possession being the dependant surviving spouse and
having resided with the tenant Shri Bhag Israni for the past about 27 years in
the said tenanted premises. The defendants No.1 to 4 in the Suit, i.e., CS(OS)
No.471/1996, had repeatedly assured the respondent No.2 that they were only
interested in selling their respective shares in the said premises to the
respondent No.2 and her family. The petitioner, who was residing in the other
half of the suit property, more particularly described as 34/2 Vasant Marg, as
tenant, got to know about the disputes and differences between the brothers
and sisters and other shareholders and the fact that most of them were not
residing in India and taking undue advantage thereof, she managed to create
false Agreements to Sell in the years 1988 and 1990. In the meanwhile, the
respondent No.1 executed many documents, including an Agreement to Sell
dated January 06, 1990 in favour of the respondent No.2 and yet another
Agreement to Sell dated 27.07.1995 in favour of the respondent No.2 for his
share of the suit property. On 15th August, 1996, the respondent No.1 executed
Power of Attorney in favour of the respondent No.2 specifically authorising
her to sell/negotiate to sell the share of the respondent No.1 in the suit
property. The respondent No.1 also authorised the respondent No.2 to contest
the said suit on his behalf. In or about 1998, the respondent No.1 through the
respondent No.2 also filed Suit No.2021/1998 for damages against his
CCP(O) 86/2004 in CS(OS) 471/1996 Page No. 16 of 36
erstwhile Power of Attorney holder Mr. A.P. Venugopalan. The respondent
No.2 and the respondent No.1 always remained in touch during the pendency
of the entire litigation. Not only this, the respondent No.2 had incurred
considerable amount on the maintenance and upkeep of the premises in her
possession due to the Power of Attorney and Agreements to Sell in her favour,
which, as a tenant, she was not required to incur. She always acted bonafidely
and under the instructions of the respondent No.1 and with his express prior
consent.
17. As regards the alleged agreement dated 30.10.2000 entered into on
behalf of the respondent No.1 by the respondent No.2, Mr. Singla, the learned
senior counsel for the respondent No.2 submitted that the said agreement was
entered on behalf of the respondent No.2 and her signatures thereon were
obtained by fraud by Shri Kanwarjeet Singh Sandhu in collusion with the
petitioner herein to grab the suit property, since it was the respondent No.1
only who was contesting the suit. It is further submitted by Mr. Singla that no
action was ever taken in execution of the said agreement nor there was any
alienation of the suit property till the injunction order was vacated by this
Court on 26th May, 2004. It is submitted that no amount whatsoever was
received and that Shri Kanwarjeet Singh Sandhu never demanded or claimed
any performance of the alleged agreement dated 30.10.2000.
CCP(O) 86/2004 in CS(OS) 471/1996 Page No. 17 of 36
18. Mr. Singla, the learned senior counsel earnestly submitted that if there
was any violation of the order dated 23.02.1996 on the part of the respondent
No.2, the said violation was neither willful nor intentional as the respondent
No.2 has never acted upon the said agreement and never actually created any
third party interest or alienation of the suit property. In any event, the
respondent No.2 on 17th May, 2007 had instructed her counsel to give an
undertaking to this Court of her wish to file an affidavit of tendering
unconditional and unqualified apology, and accordingly the affidavit dated
07.07.2007 tendering unconditional and unqualified apology was filed by her.
19. As far as Agreement to Sell dated 01.06.2004 is concerned, the learned
senior counsel for the respondent No.2 submits that the same was entered into
by the respondent No.2 as Power of Attorney holder of the respondent No.1
herein and upon his clear instructions, subsequent to the vacation of the order
dated 23.02.1996 vide order dated 26.05.2004, with Ms. Beena Kilachand and
Ms. Uma Singh, daughters of the respondent No.2, and that this was merely
the culmination of a long standing understanding/agreement between the
respondent No.1 on the one hand and the respondent No.2 and her family on
the other hand. The respondent No.2 was duly authorised by the respondent
No.1 for the same and it was within his specific knowledge.
20. The learned senior counsel further submits that thereafter the
CCP(O) 86/2004 in CS(OS) 471/1996 Page No. 18 of 36
respondent No.2 filed an affidavit dated 21.02.2005 in the said suit wherein it
was specifically stated:-
"1. That I am the Power of Attorney on behalf of Mr. Jay
Randolph Vass, defendant No.4 with respect to the
6.25% share of the property.
2. That the Hon'ble Court vide order dated 26th May
2004 was pleased to vacate the earlier ex parte
injunction granted by the Hon'ble Court on 23rd
February 1996 in I.A. No.1856/96 in the above Suit.
3. That pursuant to dismissal of the aforesaid I.A.
No.1856 of 96, I have sold/transferred the said
Property vide an Agreement to Sell dated 1st June
2004 to Uma Singh resident of 120 Anupam Garden,
Country Club road, Sainik Farms, New Delhi 110062
and Miss Bina Kilachand D/o late Shri Ramesh
Kilachand resident of 34 Vasant Marg, Vasant Vihar,
New Delhi 110057.
4. That I have executed a General Power of Attorney
which was duly registered on 2nd June 2004 in favour
of Ms. Uma Singh and Ms. Bina Kilachand, the
above purchasers to deal with the said property."
21. Mr. Singla contends that the said affidavit forms part of the record of
this Court and neither the petitioner nor the respondent No.1 has ever
challenged the contents of the said affidavit despite being aware of the same.
They, not having raised any objection, should now be estopped from
challenging the said Agreement to Sell. As a bolt from the blue, the
respondent No.2 was informed that the respondent No.1 had arbitrarily and
abruptly revoked the Power of Attorney dated 15.08.1996 in favour of the
respondent No.2 by way of the alleged Deed of Revocation dated 19.12.2006
CCP(O) 86/2004 in CS(OS) 471/1996 Page No. 19 of 36
and had executed a fresh Power of Attorney in favour of M/s. Team Design
Pvt. Ltd., which is a concern of the husband of the petitioner herein. The
respondent No.2 further compromised with the petitioner all suits, including
CS(OS) No.471/1996, though the order dated 22.01.2007 passed by this Court
in the aforesaid suit had clarified that the compromise only decided the inter se
rights of the parties and shall not absolve them of other legal obligations. The
respondent No.2 had filed an application for impleadment in the said suit. Her
said application having been rejected, the daughters of the respondent No.2,
namely, Ms. Uma Singh and Ms. Bina Kilachand had no option left except to
file Suit bearing No.233/2007, which is pending adjudication before this Court.
The respondent No.2 is now being made a scapegoat with a view to pressurize
her to vacate the premises, wherein she is also a tenant. The respondent No.1,
on the other hand, is absolved of all sins just because he has compromised the
matter.
22. The learned counsel for the respondent No.2 also submitted that the
respondent No.2 is a widow of around 79 years of age having the highest
regard for the judiciary, who has never tried to give any explanation or contest
technically the contempt proceedings, and has asked for forgiveness of any
intentional violation and that she, on her own, has tendered unconditional and
unqualified apology for the same. In any case, the order dated 23.02.1996 was
CCP(O) 86/2004 in CS(OS) 471/1996 Page No. 20 of 36
allegedly violated on 30th October, 2000, whereas the present contempt petition
is filed in the year 2004 and, therefore, the present petition is clearly barred by
time, apart from the fact that it has been filed with the malafide intention to
coerce the respondent No.2 to agree to the illegal demands of the petitioner.
23. Six-fold submissions on the relevant law were made by the learned
senior counsel for the respondent No.2, which are set out below:-
(i) The proceedings were not liable to be continued in view of the fact that
the injunction order had ceased to be operative on the compromise of litigation
in which the same was issued. In this context, the learned senior counsel relied
upon the five-Judge Bench decision of the Hon'ble Supreme Court in The
State of Bihar vs. Rani Sonabati Kumari AIR 1961 SC 221, apart from the
decisions in Rachhpal Singh vs. Gurdarshan Singh AIR 1985 Punjab and
Haryana 299 and Sheo Kumar Saxena vs. Zila Sahkari Vikas Sangh, Gonda
and others AIR 1983 Allahabad 180.
(ii) Recourse to the provisions of the Contempt of Courts Act was
impermissible in cases of violation of interim injunction passed under Order
XXXIX Rules 1 and 2 CPC. For this proposition, reliance was placed on the
judgments of the Karnataka, Allahabad and Delhi High Courts, viz., Rudraiah
Vs. State of Karnataka AIR 1982 Karnataka 182, Smt. Indu Tewari vs. Ram
Bahadur Chaudhari and others AIR 1981 Allahabad 309, Shri J.R. Jindal
CCP(O) 86/2004 in CS(OS) 471/1996 Page No. 21 of 36
vs. Family Planning Association of India & Ors. 80(1999) DLT 464, Govind
Sarda vs. Sartaj Hotels Apartments & Villas Pvt. Ltd. & Ors. 130 (2006)
DLT 460 and Anand Kumar Depak Kumar vs. Haldiram Bhujiawala & Ors.
146 (2008) DLT 100.
(iii) There being no evidence to allege willful disobedience, the continuance
of the present proceeding was not warranted (JCB India Limited vs. Action
Construction Equipment Ltd. & Anr. 2006 VI AD Delhi 826).
(iv) In view of the fact that the accusations made in the petition against the
respondent No.1 had been withdrawn and the respondent No.2 is only the
Power of Attorney holder of the respondent No.1, no further proceedings were
merited against the respondent No.2.
(v) Reference to the conduct of the respondent No.2 in the present
proceedings is not relevant without affording opportunity to the respondent
No.2 to controvert the same.
(vi) The present petition was barred by the law of limitation having been
filed four years after the alleged Agreement to Sell dated 30th October, 2000
had been entered into by the respondent No.2 on behalf of the respondent
No.1. This proposition, however, was not seriously pressed at the time of
hearing in view of the reliance placed by the counsel for the petitioner on the
judgment of the Hon'ble Supreme Court in Pallav Sheth vs. Custodian and
CCP(O) 86/2004 in CS(OS) 471/1996 Page No. 22 of 36
Others (2001) 7 SCC 549 wherein it has been held that "the period of
limitation shall not begin to run until the plaintiff or the applicant has
discovered the fraud or the mistake or could, with reasonable diligence, have
discovered it." In the instant case, the petitioner allegedly became aware of the
Agreement to Sell dated 30th October, 2000 executed by the respondent No.2
in favour of Shri Kanwarjeet Singh Sandhu only in the first week of June,
2004, and the present contempt petition was immediately filed on 07.07.2004.
24. Stress was laid by the learned senior counsel for the respondent No.2 in
the course of arguments upon the first two propositions of law set out
hereinabove.
25. In order to rebut the first proposition that the present proceedings were
not liable to be continued in view of the injunction order having ceased to
operate on the compromise of the litigation, the learned counsel for the
petitioner placed strong reliance on the judgment of the Hon'ble Supreme
Court in Tayabbhai M. Bagasarwalla vs. Hind Rubber Industries Pvt. Ltd.
(1997) 3 SCC 443 holding that an order passed by a competent court has to be
obeyed even if subsequently the said order is vacated/modified, and any third
party violating the order can be punished provided the violation is committed
before the vacation/modification of the said order. The relevant paragraphs of
the said judgment read as follows: (SCC, p.453-454, paras 16, 28 and 32)
CCP(O) 86/2004 in CS(OS) 471/1996 Page No. 23 of 36
"................. Take this very case. The plaintiff asked for
temporary injunction. An ad interim injunction was
granted. Then the defendants came forward objecting to the
grant of the injunction and also raising an objection to the
jurisdiction of the Court. The court overruled the objection
as to jurisdiction and made the interim injunction absolute.
The defendants filed an appeal against the decision on the
question of jurisdiction. While that appeal was pending,
several other interim orders were passed both by the Civil
Court as well as by the High Court. Ultimately, no doubt,
the High Court has found that the Civil Court had no
jurisdiction to entertain the suit but all this took about six
years. Can it be said that orders passed by the Civil Court
and the High Court during this period of six years were all
non est and that it is open to the defendants to flout them
merrily, without fear of any consequence. Admittedly, this
could not be done until the High Court's decision on the
question of jurisdiction. The question is whether the said
decision of the High Court means that no person can be
punished for flouting or disobeying the interim/interlocutory
orders while they were in force, i.e., for violation and
disobedience committed prior to the decision of the High
Court on the question of jurisdiction. Holding that by virtue
of the said decision of the High Court (on the question of
jurisdiction), no one can be punished thereafter for
disobedience or violation of the interim orders committed
prior to the said decision of the High Court, would indeed
be subversive of the Rule of Law and would seriously erode
the dignity and the authority of the courts. ............ We are
of the opinion that in such a case the defendants cannot
escape the consequences of their disobedience and violation
of the interim injunction committed by them prior to the
High Court's decision on the question of
jurisdiction."
"................. The interim order so passed are orders within
jurisdiction when passed and effective till the Court decides
that it has not jurisdiction to entertain the suit. These
interim orders undoubtedly come to an end with the
decision that this Court had not jurisdiction. It is open to
CCP(O) 86/2004 in CS(OS) 471/1996 Page No. 24 of 36
the court to modify these orders while holding that it has no
jurisdiction to try the suit. .......... But this power or
obligation has nothing to do with the proposition that while
in force, these orders have to be obeyed and their violation
can be punished even after the question of jurisdiction is
decided against the plaintiff provided the violation is
committed before the decision of the court on the question
of jurisdiction."
"In so far as defendant No.2 (Shri K.S. Jhunjhunawala) is
concerned, the order of the civil court holding him guilty of
contempt and sentencing him to one month's imprisonment
is affirmed."
26. Distinguishing the judgment of the Hon'ble Supreme Court in Rani
Sonabati Kumari (supra), the learned counsel for the petitioner Mr. Dipankar
submitted that all that was laid down in the said judgment is that Order
XXXIX Rule 2(3) is in essence only the mode for the enforcement or
effectuation of an order of injunction. Where a party against whom an order of
injunction has been passed has willfully failed to obey the order, the same may
be enforced by resorting to the provisions of Order XXXIX Rule 2(3) of the
Code of Civil Procedure. The judgments rendered in Rachhpal Singh and
Sheo Kumar Saxena (supra) are to the same effect. I find merit in the
contention of Mr. Dipankar. Additionally, I find that in Rani Sonabati
Kumari's case, what was being considered by the Hon'ble Supreme Court was
the point of law raised as to whether the State is liable to be proceeded against
under Order XXXIX Rule 2(3) of the Code of Civil Procedure, when it
CCP(O) 86/2004 in CS(OS) 471/1996 Page No. 25 of 36
willfully disobeys an order of temporary injunction passed eo nomine against
it. The decision rendered in the said case, therefore, in my view, has no
bearing on the facts of the present case. In any case, in my considered opinion,
it is a well settled proposition of the law that flouting of the
interim/interlocutory orders of the Court while they are in force is not
permissible even though subsequently the said orders are vacated as unjustified
and unmerited in the facts and circumstances of a particular case.
27. Adverting next to the second proposition of law urged by Mr. Singla on
behalf of the respondent No.2 that recourse to the provisions of the Contempt
of Courts Act is impermissible in cases where violation of interim injunction
passed under Order XXXIX Rules 1 and 2 is complained, the instant
proceedings having been filed both under Order XXXIX Rule 2A and under
Article 215 of the Constitution of India, the said question is only academic in
nature. The question whether it would not be a proper exercise of discretion on
the part of this Court to exercise its discretion under Article 215 of the
Constitution when the petitioner has also invoked the provisions of Order
XXXIX Rule 2A has been dwelt upon by various High Courts, including the
High Courts of Allahabad, Karnataka and Delhi. The reliance placed by the
learned counsel for the respondent No.2 on the decisions rendered by the said
High Courts in the case of Rudraiah (supra) decided by the Karnataka High
CCP(O) 86/2004 in CS(OS) 471/1996 Page No. 26 of 36
Court, Smt. Indu Tewari (supra) decided by the Allahabad High Court and
J.R. Jindal, Govind Sarda and Anand Kumar Deepak Kumar (supra) in
which cases the judgments have been rendered by the Delhi High Court, to
urge that for violation of an interim injunction order, the proper remedy is an
application under Order XXXIX Rule 2A and that ordinarily a person
complaining about disobedience or breach of an injunction order should resort
to the remedy under Order XXXIX Rule 2A CPC, rather than filing a petition
in the High Court under the Contempt of Courts Act, 1971 or invoking Article
215 of the Constitution of India is misplaced in the instant case in view of the
fact that the present petition has been filed under Order XXXIX Rule 2A and
Article 215 of the Constitution of India. It cannot also be disputed that a High
Court, being a Court of record, has inherent power in respect of contempt of
itself as well as of its subordinate Courts and though ordinarily it may not be a
proper exercise of discretion on the part of the Court to exercise its jurisdiction
under the provisions of the Contempt of Court Act or Article 215 of the
Constitution when the petitioner can avail of the alternative remedy of filing an
application under Order XXXIX Rule 2A CPC before the Court which passed
the injunction order, in my considered opinion, the existence of an effective
and alternative remedy cannot altogether efface or wipe out the powers of this
Court as a Court of record under the general law of contempt or under Article
CCP(O) 86/2004 in CS(OS) 471/1996 Page No. 27 of 36
215 of the Constitution of India. However, as stated above, the question in the
instant case is only an academic one in view of the fact that the present petition
purports to be both under Order XXXIX Rule 2A and Article 215 of the
Constitution of India and need not detain us any further.
28. Coming to the merits of the cases and the question whether there has
been any willful breach or violation of the interim orders of this Court, there
can be no manner of doubt that an attempt was made by the respondent No.2 to
effect the sale of the property in question by entering into the Agreement to
Sell dated 30th October, 2000 during the subsistence of the interim injunction
order dated 23rd February, 1996 passed by this Court restraining the parties
from alienating or entering into any agreement for sale of the property in suit
with any third party. Indubitably also, the respondent No.2 was not a party to
the said suit and it was the respondent No.1 who was the defendant No.4 in
the aforesaid suit [CS(OS) No.471/1996]. The defence of the respondent No.2
that the proceedings against the respondent No.1 having been dropped by this
Court and she (the respondent No.2) having acted as the Power of Attorney
holder of the respondent No.1 with the full consent and concurrence of the
respondent No.1, cannot be proceeded against, is also, in my view not tenable.
The petitioner contends that this was not so and that the Deed of Revocation
dated 19.12.2006, wherein the respondent No.1 specifically stated that the
CCP(O) 86/2004 in CS(OS) 471/1996 Page No. 28 of 36
violation of the injunction order dated 23.02.1996 by the respondent No.2 was
the ground for revocation of the Power of Attorney dated 15.08.1996 executed
by him in favour of the respondent No.2, shows that the respondent No.2 did
not violate the order with the consent of the respondent No.1. In any case, the
fact remains that the respondent No.2 has not denied knowledge of the interim
orders passed by this Court on 23rd February, 1996 and, therefore, in my view,
is answerable for the violation of the said order.
29. The defence adopted by the respondent No.2 that the execution of the
Agreement to Sell dated 30th October, 2000 was the result of a fraud played
upon her by Shri Kanwarjeet Singh Sandhu in collusion with the petitioner
herein also does not appear to be a probable one. Not only is the said defence
altogether lacking in material particulars, inasmuch as it has not been
explained how the said fraud was perpetrated upon the respondent No.2, who
had full knowledge of the proceedings, but no attempt has been made by the
respondent No.2 to adduce any evidence to prove the same. The respondent
No.2 has not denied the execution of the Agreement to Sell during the
subsistence of the interim injunction order of this Court and cannot be allowed
to shrug of the same by pleading fraud or crying foul upon being faced with the
consequences.
30. This Court, therefore, has no hesitation in holding that the disobedience
CCP(O) 86/2004 in CS(OS) 471/1996 Page No. 29 of 36
of the injunction order by the respondent No.2 is willful and contumacious
and there can be no justification for the same. The contention of the
respondent No.2 that there was no subsequent action taken in execution of the
said agreement and that Mr. Kanwarjeet Singh Sandhu never demanded or
claimed any performance of the agreement nor any money exchanged hands
casts a further cloud of doubt over the nature of the entire transaction and
belies the defence adopted by the respondent No.2 that the transaction was an
effort on the part of Kanwarjeet Singh Sandhu in collusion with the petitioner
to play fraud upon her. Why would Kanwarjeet Singh Sandhu discretely
choose to recede into the background without even whimpering about the
Agreement to Sell if he was indeed hand in glove with the petitioner is
altogether baffling. Had he played a fraud upon the respondent No.2 in
collusion with the petitioner, certainly he would have subsequently asserted his
right to have the agreement executed in its entirety. His disappearance behind
the scene, in my view, speaks of the abortive attempt made by the respondent
No.2 to grab the property though subsequently better sense seems to have
prevailed.
31. In view of the findings rendered by this Court hereinabove that the
disobedience of the order by the respondent No.2 was willful, intentional and
deliberate, the next question which arises is whether the case calls for
CCP(O) 86/2004 in CS(OS) 471/1996 Page No. 30 of 36
imposition of punishment on the respondent No.2.
32. The learned counsel for the petitioner heavily relied upon the decision
of the Hon'ble Supreme Court in Patel Rajnikant Dhulabhai & Anr. vs. Patel
Chandrakant Dhulabhai & Ors. 2008 (10) Scale 349 to urge that a strict view
be taken. In the said case, after discussing the provisions of law relating to
contempt of Court and the precedents thereon, including its earlier decisions in
Ashok Paper Kamgar Union vs. Dharam Godha & Ors. (2003) 11 SCC 1,
Kapildeo Prasad Sah & Ors. vs. State of Bihar & Ors. (1999) 7 SCC 569,
Attorney General vs. Times Newspaper Ltd. 1974 AC 273, Anil Ratan Sarkar
& Ors. vs. Hirak Ghosh & Ors. (2002) 4 SCC 21, Commissioner, Karnataka
Housing Board vs. C. Muddaiah (2007) 7 SCC 689, All Bengal Excise
Licensees Association vs. Raghabendra Singh & Ors. (2007) 11 SCC 374 and
Tayabbhai M. Bagasarwalla vs. Hind Rubber Industries (P) Ltd. (1997) 3
SCC 443, the Supreme Court held as follows:-
"59. From the above decisions, it is clear that punishing a
person for contempt of Court is indeed a drastic step and
normally such action should not be taken. At the same time,
however, it is not only the power but the duty of the Court to
uphold and maintain the dignity of Courts and majesty of
law which may call for such extreme step. If for proper
administration of justice and to ensure due compliance with
the orders passed by a Court, it is required to take strict
view under the Act, it should not hesitate in wielding the
potent weapon of contempt."
33. The learned counsel for the petitioner in the context of the apology
CCP(O) 86/2004 in CS(OS) 471/1996 Page No. 31 of 36
tendered by the respondent No.2 further submitted that the respondent No.2 not
having tendered unconditional apology at the threshold but having done so
after a lapse of almost three years, when faced with the likelihood of an
adverse order being passed against her, the said apology cannot be accepted as
it is bereft of any self-reproach, remorse or repentance. Further, in view of the
fact that she has not allowed quietus to be given to the legal proceedings in
respect of the same suit property, her apology, he urged, deserves to be
rejected as a paper apology. Referring to the judgments of the Hon'ble
Supreme Court in M.C. Mehta vs. Union of India (2003) 5 SCC 376 and
Delhi Development Authority vs. Skipper Construction (1995) 3 SCC 507, the
learned counsel urged that the apology should have been tendered by the
respondent No.2 at the earliest opportunity and is of no avail to her at a belated
stage to escape punishment of the Court.
34. My attention was also drawn by Mr. Dipankar to a three-Judge Bench
decision of the Supreme Court in T.N. Godavarman Thirumulpad through
the Amicus Curiae vs. Ashok Khot & Anr. 2006 (5) SCC 1, wherein the
Supreme Court had the occasion to consider the question in the light of an
'apology' tendered as a weapon of defence by the contemnor with a prayer to
drop the proceedings. Rejecting the prayer for apology, the Court stated:-
"Apology is an act of contrition. Unless apology is offered
at the earliest opportunity and in good grace, the apology is
CCP(O) 86/2004 in CS(OS) 471/1996 Page No. 32 of 36
shorn of penitence and hence it is liable to be rejected. If the
apology is offered at the time when the contemnor finds that
the court is going to impose punishment it ceases to be an
apology and becomes an act of a cringing coward."
35. Reliance was also placed upon the following observation made by the
Hon'ble Supreme Court in Patel Rajnikant Dhulabhai's case (supra):-
"64. It is well-settled that an apology is neither a weapon
of defence to purge the guilty of their offence; nor is it
intended to operate as a universal panacea, it is intended to
be evidence of real contriteness [Vide M.Y. Shareaf v.
Hon'ble Judges of the High Court of Nagpur; (1955) 1 SCR
757 : M.B. Sanghi v. High Court of Punjab & Haryana,
(1991) 3 SCR 312]."
36. Reference at this juncture deserves to be made to the affidavit filed on
behalf of the respondent No.2 tendering unconditional and unqualified apology
in relation to the present contempt proceedings. The relevant portion of the
said affidavit is as follows:-
"2. That on 17th May 2007 when the above mentioned
Contempt Petition was listed before the Hon'ble
Court, my Counsel, upon clear instructions given by
me pursuant to discussions held with me, gave an
undertaking to the Hon'ble Court that I wish to file
this Affidavit tendering my unconditional and
unqualified apology in relation to the above contempt
proceedings. Accordingly, I am swearing and
affirming this Affidavit to be placed before the Hon'ble
Court.
3. At the outset I tender my unconditional and
unqualified apology to this Hon'ble Court and state
that if there was any contempt on my part, the same
was wholly unintentional and a bonafide mistake. I
never had any intention to flout the orders of this
CCP(O) 86/2004 in CS(OS) 471/1996 Page No. 33 of 36
Hon'ble Court and have always acted in deference to
the same. Hence, I humbly pray to this Hon'ble Court
that the contempt proceedings initiated against me
may be dropped.
4. The purpose of my instant Affidavit is to tender my
unconditional apology before this Hon'ble Court
hence I do not wish to present any detailed reasons
and/or explanation in relation to the alleged act of
contempt. However, for purposes of record, I say that
a quietus has been given to the above stated Suit (and
related suits pending between the Petitioner and
Respondent No.1) as the same have been compromised
and decreed by this Hon'ble Court.
5. I say that I have suffered tremendously on account of
being the Power of Attorney holder of Respondent
No.1. Partaking in the above and other suits pending
between the Petitioner and Respondent No.1 has
caused grave hardship to me. I state that I am no
longer the Attorney holder on behalf of Respondent
No.1. I repeat and reiterate that I am profusely
apologetic for having caused any inconvenience to any
party and to this Hon'ble Court and it was never my
intention to flout any order passed by this Hon'ble
Court. I therefore humbly pray that the above stated
contempt proceedings against me may be dropped by
this Hon'ble Court."
37. There can be no manner of doubt that an apology must be weighed on
the scales of contrition, repentance and penitence. A timely expression of real
contriteness at the earliest opportunity must be regarded as an act of penitence
and self-reproach. A Court of justice must, in the fitness of things, in the face
of such an apology and upon confession of a wrong done, which was not
intended to be done, in all grace and magnanimity accept such an
unconditional and unqualified apology to discharge notice of contempt. An
CCP(O) 86/2004 in CS(OS) 471/1996 Page No. 34 of 36
apology gracefully tendered deserves to be gracefully received and such
acceptance by no stretch of imagination can cause a dent in the majesty or
authority of law. In the instant case, undoubtedly, there is a delay in tendering
the unconditional apology, but the same is explained by the fact that talks of
settlement were going on between the parties (as evidenced by the orders of
this Court) till as late as 2nd April, 2007. It was by order dated 2nd April, 2007,
that notice was issued to the respondent No.2 to remain personally present in
Court on the learned counsel for the petitioner stating that the contempt
petition was being pressed only against the respondent No.2, returnable for
17th May, 2007. Immediately, on the said date, i.e., on 17th May, 2007, the
learned counsel for the respondent No.2 entered appearance for the
respondent No.2 and sought time to file affidavit and the case was adjourned to
31st July, 2007. The affidavit was filed in the interregnum on 10 th July, 2007
and it cannot, therefore, be said that there was such delay in filing of the same
as to render it non efficacious and unworthy of being considered. The affidavit
on perusal of the same appears to be full of remorse and there is no real reason
why this Court should reject the same as being otherwise, more so, as no
wrong has in fact been done or injury inflicted by the respondent No.2 having
entered into the Agreement to Sell dated 30th October, 2000, which proved
abortive. In my considered opinion, even if wisdom to tender an apology
CCP(O) 86/2004 in CS(OS) 471/1996 Page No. 35 of 36
dawns upon the wrong-doer only at a later stage and the apology is tendered
unreservedly and unconditionally before the Court has indicated the trend of its
mind to punish the contemnor, it must be taken to be a bonafide apology and
ought to be accepted as such. The respondent No.2 is a woman, who is now
80 years of age, of frail and indifferent health, confined to a wheel-chair and
being widowed is entirely dependent upon her daughters. In such
circumstances, for this Court to kick aside her unqualified and unconditional
apology and insist upon a prison term for her to uphold the majesty of law
would be wholly unjustified, for the majesty of law is not above the life of a
senior citizen of the country, which would certainly be lost under the physical
trauma and ignominy of imprisonment. This Court, therefore, deems it
expedient to accept the apology as admission of a wrong done by the
respondent No.2 and unreserved conveyance of real contrition for the said
wrong.
38. Keeping in view the entirety of the facts and circumstances of the case,
the apology tendered by the respondent No.2 is accordingly accepted by this
Court and the notice of contempt issued to her is ordered to be discharged.
CCP(O) 86/2004 stands disposed of accordingly.
REVA KHETRAPAL, J.
MARCH 31, 2009
km
CCP(O) 86/2004 in CS(OS) 471/1996 Page No. 36 of 36
