Vijay Pandit vs Nutan Pandit
2011 Latest Caselaw 1960 Del

10
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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CONT.CAS(C) 450/2010

%                                 Judgment Delivered on: 05.04.2011
VIJAY PANDIT                                     ..... Petitioner
                       Through:   Mr.Sandeep Sharma, Advocate

                       versus

NUTAN PANDIT                                       ..... Respondent
                       Through:   Mr.Hardik Luthra, Mr.Naveen Kumar and
                                  Mr.H.S. Jaggi, Advocates

       CORAM:
       HON'BLE MR. JUSTICE G.S.SISTANI

           1. Whether the Reporters of local papers may be allowed to see
              the judgment?
           2. To be referred to Reporter or not?
           3. Whether the judgment should be reported in the Digest?

G.S.SISTANI, J. (ORAL)

1. Contempt is averred for willful disobedience of the order dated

08.08.2005 passed in the CS(OS)No.214/2002 on the basis of a

settlement arrived at between the parties on 16.07.2005 and

statements made by the parties in court on 08.08.2005. The

parties are husband and wife. On account of marital discord,

various litigations had arisen between them, however, with the

intervention of friends and relations, a settlement was arrived at

and was filed in CS(OS)No.214/2002.

2. Counsel for the petitioner submits that respondent has willfully

disobeyed the settlement whereby it was agreed that the divorce

petition which was pending between the parties would be amended

into a petition for judicial separation. Counsel also submits that

after the settlement, both the parties had approached the

concerned court and the divorce petition was amended to a

petition for judicial separation. Mr.Sharma, next submits that in the

year 2007 in utter disregard to the settlement and the statements

made in court whereby the respondent had admitted that she has

signed the statement after reading and understanding the same,

she has violated the terms of the settlement and a petition for

grant of divorce has been filed.

3. A preliminary objection has been raised by counsel for the

respondent with regard to maintainability of the present contempt

petition. Mr.Luthra, submits that the petitioner had filed a

contempt petition in the year 2008 which was dismissed by a

speaking order on 06.04.2009 and appeal filed against the

aforesaid order was withdraw on 18.08.2009 and thus a second

contempt petition would not be maintainable.

4. Counsel for the petitioner submits that earlier contempt petition

was filed in the CS(OS)No.214/2002 and on a different cause of

action. Counsel for the petitioner clarifies that respondent had filed

a suit for declaration alleging that consent of the respondent for

signing the compromise deed, was obtained by coercion, undue

influence, fraud and misrepresentation. Since the filing of the suit

was against the terms of the settlement, the earlier contempt

petition was filed. It is also submitted that the appeal was

withdrawn only on the ground that the Division Bench had

observed that on account of pendency of the suit no contempt

would be maintainable and in these circumstances the petitioner

withdrew the appeal, to pursue appropriate remedy including filing

of contempt after decision in the suit.

5. Counsel for the petitioner submits that the suit for declaration was

withdrawn by the respondent on 01.05.2010 and thereafter the

present contempt petition has been filed. Counsel for the

petitioner submits that the order passed in the earlier contempt

petition pertained only to filing of the suit for declaration by the

respondent and not for the reasons that a divorce petition had

been filed by her.

6. I have heard counsel for the parties and perused the order dated

06.04.2009 whereby the contempt petition No.132/2008 was

dismissed as also the order of the Division Bench passed in appeal.

The contempt petition was dismissed primarily on the ground that

the court recorded a finding that no undertaking had been given

nor any undertaking had been accepted by the court to the effect

that respondent would not be entitled to challenge the settlement

dated 16.07.2005 on any ground. In the concluding portion of the

order dated 06.04.2009, learned Single Judge had observed that no

undertaking was given to or accepted by the court. While the order

of the Division Bench did not grant express liberty to the petitioner,

it would be useful to reproduce the order dated 18.08.2009 of the

Division Bench, which reads as under:

"After some arguments, learned counsel for the Appellant, states that he will pursue the appropriate remedy including contempt after the suit filed by the Respondent is decided.

He states that in these circumstances, he wishes to withdraw the Contempt Appeal.

The Contempt Appeal is dismissed as withdrawn accordingly."

7. While there is nothing on record to suggest that liberty was granted

to the petitioner to file a subsequent contempt petition after

disposal of the suit, but the petitioner has made a statement that

he would pursue appropriate remedy including contempt after the

suit filed by respondent is decided. The Single Judge in the earlier

contempt petition has come to a categorical finding that no

contempt would be maintainable, as no undertaking was given to

or accepted by the court. This observation of the Single Judge in

the order dated 06.04.2009 has not been set aside by the Division

Bench. To entertain present contempt petition would directly be in

conflict with a view expressed by another Single Judge of this court,

who has come to a categorical finding that no contempt is made

out and which order has attained finality.

8. To canvass his argument that the undertaking given to court may

not be an express undertaking, but since the terms of the

settlement were filed in court and statement was made in court, it

would amount to an express undertaking. Counsel for the

petitioner has relied upon Rama Narang Vs. Ramesh Narang

AIR 2006 SC, 1883 and more particularly paragraphs 24, 25 and 26,

which read as under:

"24. The question which was before the Court in Babu Ram Gupta case1 was limited to the issue whether the appellant had given any undertaking to the Court, either expressly or impliedly, which he had violated. In other words it was limited to the second category of cases mentioned under Section 2(b) of the Act. The Court was not called upon to decide whether there was any contumacious conduct as envisaged by the first category of cases under that section. The observations made in that regard, are strictly speaking, obiter. The Court was not called upon to consider nor did it construe the language of Section 2(b) of the Act. If we were to accept the observations of the Court as an enunciation of the law, it would run contrary to the express language of the statute. As we have earlier noted, the section itself provides that wilful violation of any order or decree, etc. would tantamount to contempt. A compromise decree is as much a decree as a decree passed on adjudication. It is not as has been wrongly held by the Calcutta High Court in Nisha Kanto Roy Chowdhury merely an agreement between the parties. In passing the decree by consent, the court adds its mandate to the consent. A consent decree is composed of both a command and a contract. The Bombay High Court's view in Bajranglal Gangadhar Khemka6 correctly represents the law that a consent decree is a contract with the imprimatur of the court. "Imprimatur" means "authorised" or "approved". In other words by passing a decree in terms of a consent order the court authorises and approves the course of action consented to. Moreover, the provisions of Order 23 Rule 3 of the Code of Civil Procedure require the court to pass a decree in accordance with the consent terms only when it is proved to the satisfaction of the court that a suit has been adjusted wholly or in part by any lawful agreement.

25. All decrees and orders are executable under the Code of Civil Procedure. Consent decrees or orders are of course also executable. But merely because an order or decree is executable, would not take away the court's jurisdiction to deal with a matter under the Act provided the court is satisfied that the violation of the order or decree is such, that if proved, it would warrant punishment under Section 13 of the Act on the ground that the contempt substantially interferes or tends substantially to interfere with the due course of justice. The decisions relied upon by the respondents themselves hold so as we shall subsequently see.

26. In such circumstances it would neither be in consonance with the statute, judicial authority, principle or logic to draw any

distinction between the wilful violation of the terms of a consent decree and wilful violation of a decree which is passed on adjudication. The decision in Babu Ram Gupta case1 must, therefore, be limited to its own peculiar facts.

9. I am afraid that the decision relied upon by counsel for the

petitioner cannot be looked into at this stage, as the order of the

Single Judge in Contempt Case No.132/2008 has attained finality

and the appeal filed by the petitioner herein was dismissed as

withdrawn. Since another Single Judge has already held that a

contempt is not maintainable, in view thereof, without expressing

any opinion on the merits of the case, no grounds made out to

initiate contempt proceedings. Dismissed.

G.S. SISTANI, J.

April 05, 2011 'ssn'