Smt. Komal Nagpal & Others vs Mr. Kamal Nagpal & Others
2014 Latest Caselaw 59 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                  Judgment reserved on:          24.10.2013

%                 Judgment delivered on:         03.01.2014

+      CCP No.143/2012 in CS(OS) No. 2388/2006

       SMT. KOMAL NAGPAL & OTHERS
                                                             ..... Petitioners
                               Through:    Mr. Suman Kapoor and Ms. Ishah
                                           Shah, Advocates

                      versus

       MR. KAMAL NAGPAL & OTHERS
                                                               ..... Respondents
                               Through:    Mr. R.S.Suri, Sr. Advocate with Mr.
                                           Rohit K. Agarwal and Ms. Urvika
                                           Suri for R1.
                                           Mr. Ramesh Kumar, for R-4.

       CORAM:
       HON'BLE MR. JUSTICE VIPIN SANGHI

                                 JUDGMENT

VIPIN SANGHI, J.

1. The petitioners had instituted CS(OS) 2388/06 against three defendants, defendant no.1 being respondent no.1 herein, seeking permanent injunction to restrain the defendants from disposing of the premises known as Carlton cafe,1282-1286, Bada Bazar, Kashmere Gate, New Delhi, without the consent, knowledge & participation of the petitioners. The said suit is still pending adjudication before this Court.

2. The case of the petitioners is that premises known as Carlton cafe is a tenanted premise wherefrom the business under the name and style of M/s Carlton cafe was run by the father of respondent no.1 and his brother. Respondent no.1 had inherited from his father, 25% interest in the tenancy rights of the said premises. It was agreed between petitioner no. 1 & respondent no.1, by way of a family settlement dated 18.11.94, that out of respondent no.1's interest in the said premises, 10% would belong to petitioner no.2, 40% to petitioner no.3 and the remaining 50% to respondent no.1, and that in case of „sale‟ of the said interest, the sale proceeds would be shared among petitioner no.2, petitioner no.3 and respondent no.1 in the aforementioned proportion. In order to restrain defendants from resiling from the terms of the said settlement, CS (OS) 2388/06 was brought by the petitioners.

3. In I.A. no. 14402/06, filed by the petitioners under order 39 rule 1, & 2 r/w section 151 C.P.C., an exparte injunction was granted in favour of the petitioners and against the defendants, vide order dated 08.01.2007, whereby defendants were restrained from dealing with the property in any manner without effectively associating petitioners in negotiation and disposal of the property. The operative part of the said order reads as follows:

"The interest of justice would be met at this stage, by directing the defendants not to deal with the aforesaid property in any manner without effectively associating the plaintiffs in the negotiations and disposal of the property. Ordered accordingly."

4. Defendant no. 3 filed I.A. no. 3406/08 seeking vacation of the aforesaid injunction order. Since each defendant was in exclusive possession of clearly demarcated portions of the said premises in accordance with their respective shares in the tenancy rights and the claim of the petitioners, qua the settlement dated 18.11.94, was only against the 25% interest of defendant no.1/respondent no.1 in the said premises, the stay against defendant no.2 & 3 was vacated but was confirmed against defendant no.1/respondent no.1 till final disposal of the suit, vide order dated 26.03.10. The relevant extract from the said order reads as follows:

"....... However, as regards the second and third defendants, there is no denial that they have exclusive interests in respect of 25% & 50% clearly demarcated portions of the property. Therefore, the injunction in respect of the suit property as far as they are concerned requires to be and is accordingly vacated.

In view of the above, the temporary injunction in respect of the first defendant's 25% share concerning the demarcated portion in his possession shall continue and bind the parties- the plaintiff and defendant no.1 till disposal of the suit."

5. FAO 393/10 filed by respondent no.1, assailing the said Order dated 26.03.2010, was dismissed and the order dated 26.03.10 was upheld by the Division Bench. The breach of this aforesaid order by the respondents/contemnors has made the petitioners to invoke the Contempt Jurisdiction of this court by way of the present Contempt Petition.

6. Petitioners submit that, sometime in May 2012, the petitioners came to know about the registered sale deed dated 08.03.11, executed by respondent no.3 on behalf of respondent no.2 in favour of respondent no.4, with respect to property bearing no. 1282 (forming part of property no. 1282-1286), Bada Bazar, Kashmere Gate. Petitioners were not certain whether respondent no. 1, against whom the injunction order was continuing, was still a tenant in possession or had surrendered the tenancy rights to the new owner i.e. respondent no.4. Notice dated 24.05.12 was sent by the petitioners to respondent nos. 2 to 4, informing them about the injunction order in operation and inquiring about the status of respondent no.1's tenancy. Although the said notice was duly served on all the said addressees, as claimed by the petitioners, none of them replied. In the last week of November 2012, it came to the knowledge of the petitioners that Respondent no.1 along with his sister- in-law, Mrs Madhu Nagpal who is defendant no. 3 in the suit, had parted with the possession of their respective portions of the premises in question in favour of respondent no.4, the new owner, in lieu of Rs. ten crores. A personal visit to the premises by petitioner no. 1 & 2 on 27.11.12, confirmed the fact of surrender of possession. It was found that the whole shop of respondent no.1 & his sister-in-law (i.e. Carlton cafe) was being used as one store/godown, with a signboard of 'Lumex/D.K. Max' displayed outside the shop.

7. Petitioners submit that there has been wilful disobedience of the aforesaid injunction order of this court by respondent no.1, by surrendering the tenancy/parting with the possession of the tenanted

premises while the injunction was subsisting, and by respondent no.4 by taking vacant possession of the said premises after notice of the injunction order being given to her vide notice dated 24.05.12.

8. Respondent no.1 and respondent no. 4 do not deny the factum of surrender of tenancy rights of the premises in question by respondent no.1 to respondent no.4. However, they submit that the tenancy/possession of the premises was surrendered on 25.08.11 without any consideration moving from respondent no. 4 to respondent no.1.

9. Apart from other submissions made by respondent no.1 which are not relevant at this stage, he submits that he had merely surrendered the tenanted premises to the rightful owner so that he was not burdened with maintenance charges or rent in view of the slump in business. He had no intention of disobeying the orders passed by this Court. Rather he acted under the bona fide impression that such surrender was not covered by the injunction order. He had been advised by his previous counsel that such surrender was neither „dealing with‟ nor „disposing of‟ the premises in terms of the court‟s order. He had been paying rent to respondent no.4 during the period starting from 08.03.11 to 25.08.11 and at the request of respondent no. 4, surrendered the tenancy on 25.08.11. Further, respondent no. 1 tenders unconditional apology if his act of surrendering the tenancy is considered as contumacious by this Court.

10. Respondent no. 4 submits that she purchased the property in question on 08.03.11 from respondent no. 3 (acting on behalf of respondent no.2). It was sold to her free from all encumbrances. She is

not a party to the civil suit in which the said injunction order was passed. She had no notice of the suit, or the injunction order being in force at the time of sale or at the time of the surrender i.e. 25.08.11. The possession was taken on 25.08.11 and not after petitioners‟ notice dated 24.05.12 as has been alleged by the petitioners. The premises were renovated and are currently being used by her husband for his business purpose. Moreover, she is not a party to the settlement dated 18.11.94, so it cannot be enforced against her.

11. A conjoint reading of Section 5, Sec.6, Sec.105 and Sec.111 of the Transfer of Property Rights, 1882, (hereinafter referred to as the Act), shows that the term 'Property' is used in the sense of rights and interests of the owner or other person in that property; Tenancy rights are property, capable of being transferred; Creation of tenancy in a property is a transfer of a right to enjoy such property by the transferee. Surrender of tenancy rights is a mode of determination of the tenancy, implying that the tenant is yielding his interest under the tenancy, which has the effect of returning to the lessor that right to enjoy such property and thereby letting him in. Surrender of tenancy in favour of the landlord may not be transfer of property in the strict sense of the word 'transfer' [Maroti & Anr. Vs. Krishna Rao, AIR 1925 Nag 455] but it is 'dealing with property'. In Jagdish Lal Vs. M.E. Preriera etc, AIR 1977 Delhi 12, this court, while explaining the scope of sec. 52 of the Act, inter-alia, observed in paragraph 6:

"... It is not in doubt that the "right to Immovable property" includes a claim for possession of Immovable property". It has also been recognised that the expression "or otherwise dealt with" in Section 52 is much wider and would include transfer of possession by lease or otherwise. The expression "any party to the suit" has been judicially determined to include not only the party to the proceedings or the suit but their legal representatives which expression would also include all those persons who claim through the party either as transferees or otherwise. It has, therefore, been held that although the surrender by a lessee in favor of a Lesser would not be "transfer" within the meaning of the Section but would nevertheless amount to otherwise dealing with the property within the meaning of the Section. ..."

(emphasis supplied)

12. There is no doubt that the respondent no.1 was clearly and unequivocally restrained from dealing with the suit property, i.e. Carlton Cafe, in any manner without effectively associating petitioners in the negotiation and disposal of property. Surrender of tenancy, which amounts to dealing with property, would squarely fall within the ambit of the said restraint. Also, interest of the petitioners in the tenancy rights of the premises (known as Carlton cafe) is the subject matter of the civil suit in which the said injunction order was passed. The purpose of injunction was to preserve the rights of the petitioners till the disposal of the suit.

Order of the court has to be complied with in letter and in spirit. In the face of the facts of the case and the legal position discussed above, it is unconceivable that injunction on „dealing with property in any manner‟ or „disposal of property‟ would not encompass „surrender of tenancy‟ in its fold. Moreover, the said restraint on dealing with property in any

manner is to the extent that petitioners were to be effectively associated in negotiation/disposal of the property in question. Thus, there is no doubt that respondent no. 1 has breached the aforesaid orders of the Court by surrendering the tenancy to respondent no.4, without the participation of the petitioners with regard to the surrender.

13. It cannot be accepted that this act of respondent no.1 was a result of a bonafide mistake. Respondent no.1 is a party to the said suit; he is well aware of all the facts, proceedings undertaken, orders passed therein and is bound by them. In Courts on its own motion Vs. N.S. Kanwar,1995 CrLJ 1261,the Supreme Court, after a detailed consideration on the point of 'wilful' disobedience, had, inter-alia, observed that:

"28. ....If a party who is fully in know of the order of the court or is conscious and aware of the consequences & implications of Courts' order, ignores it or acts in violation of the Court's order, it must be held that disobedience is wilful...."

14. In the context of the case, the injunction order passed by this Court obviously included an injunction against surrender of tenancy by respondent no.1 to the landlord. Even if there was any such mis- impression in his mind, respondent no.1 should have approached this Court for a clarification, or, at least, taken the petitioners into confidence before the surrender of the tenancy.

15. For the sake of argument, even if it is believed that respondent no.1 was under a genuine impression that the injunction order did not apply to

surrender of tenancy, he could have, at least, brought this fact of surrender to the notice of the Court, or the petitioners as the order categorically restrained respondent no.1 from dealing with the property in any manner whatsoever without association of the petitioners and in this respect, there was no ambiguity whatsoever. The justification of bonafide impression of order based on alleged misguided legal advice also fails because nowhere has respondent no.1 disclosed the details of his previous counsel who had advised him so, nor has he mentioned as to how & when he was so advised. The surrender of the tenancy in such a clandestine manner, behind the back of the petitioners and in violation of the Court's order, leads to only one inference that it was indeed a deliberate act of the respondent no.1, done to defeat petitioners‟ rights and to hamper the administration of justice. Thus, in light of the aforesaid facts and circumstances, the breach of the said order by respondent no.1 is wilful and deliberate. The submission that the surrender was without consideration, seems untenable in view of the general prevalent practice of return of Pugree amount (with interest) on surrender of long standing tenancies. This is more so when the premises in question is a commercial premises in Bada Bazar, Kashmere Gate, and the tenancy dates back to 1940 at a monthly rent of Rs. 135/-.

16. "Civil contempt" is defined in Section 2(b) of the Contempt of Courts Act, 1971 to mean "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". Thus, respondent no. 1 has, by wilfully disobeying the injunction order of this court, committed civil contempt.

17. Although respondent no.1 has tendered unconditional apology, but a mere apology does not by itself absolve him of the guilt of wilfully violating Court‟s order.

18. In Patel Rajnikant Dhulabhai & Anr. Vs. Patel Chandrakant Dhulabhai & Ors, (2008) 14 SCC 561, the dispute related to the transfer of and construction on certain properties claimed to be joint family properties. The SLPs were disposed of holding, among other things, that any third party right created, should be after notice to petitioners therein. However, respondents sold the property without notice, acting in violation of Court's order and were held guilty of civil contempt. It was held that there was intentional disobedience and wilful breach in as much, as, the order was explicitly clear, unambiguous on 'notice to petitioners'. Rejecting the unconditional apology tendered by the respondents, the Supreme Court held that the so-called apology was not an act of penitence, contrition or regret. It had been tendered as a `tactful move' when the contemnors were in a tight corner and with a view to ward off the Court. Acceptance of such apology would be allowing the contemnors to go away with impunity after committing gross contempt of Court.

19. The Supreme Court, inter-alia, observed as follows:

"63. In Hiren Bose, Re, AIR 1969 Cal 1: 72 Cal WN 82, the High Court of Calcutta stated; "It is also not a matter of course that a Judge can be expected to accept any apology. Apology cannot be a weapon of defence purge the guilty. It is intended to be evidence of real contrition, the manly

consciousness of a wrong done, of an injury inflicted and the earnest desire to make such reparation as lies in the wrong- doer's power. Only then is it of any avail in a Court of justice But before it can have that effect, it should be tendered at the earliest possible stage, not the latest. if wisdom dawns only at a later stage, the apology should be tendered unreservedly and unconditionally, before the Judge has indicated the trend of his mind. Unless that is done, not only is the tendered apology robbed of all grace but it ceases to be an apology. It ceases to be the full, frank and manly confession of a wrong done, which it is intended to be.

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].

65. In T.N. Godavarman Thirumulpad through the Amicus Curiae v. Ashok Khot & Anr., 2006(5) SCC 1, a three Judge Bench of this Court had an occasion to consider the question in the light of an `apology' as a weapon defence by the contemner with a prayer to drop the proceedings. The Court took note of the following observations of this Court in L.D.Jaikwal v. State of U.P., (1984) 3 SCC 405:

"We are sorry to say we cannot subscribe to the 'slap-say sorry-and forget' school of thought in administration of contempt jurisprudence. Saying 'sorry' does not make the slipper taken the slap smart less upon the said hypocritical word being uttered. Apology shall not be paper apology and expression of sorrow should come from the heart and not from

the pen. For it is one thing to 'say' sorry-it is another to 'feel'sorry".

66. The Court, therefore, rejected the prayer and stated;

"Apology is an act of contrition. Unless apology is offered at the earliest opportunity and in good grace, the apology is 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".

20. The respondent no.1 deliberately, with the sole purpose of defeating petitioners‟ rights, surrendered the tenancy in breach of the order of this court. The apology tendered by respondent no.1, though at an early stage of this petition, does not seem to be sincere, but merely a way to escape the consequences of a deliberate contumacious act committed by him and hence, in view of the settled position of law and facts of the case at hand, apology tendered by him is not accepted.

21. It is settled legal position that a person who is not a party to the proceedings is not bound by any orders passed therein but if that person has abetted/aided violation of any order with notice/knowledge of the Order, he will be guilty of contempt. This principle of third party liability for contempt, expounded in Seaward Vs. Paterson, (1895-99) All ER 1127, has been upheld and followed by Indian courts in various judicial pronouncements [Vidya Charan Shukla Vs. Tamil Nadu Olympic

Association & Anr., AIR 1991 Mad 323]. However, the burden of proving the requisite knowledge lies on the petitioner. Here, the case of the petitioners is that respondent no.4 had knowingly taken vacant possession of the premises from respondent no.1 with an intention to thwart administration of justice, in the suit between the petitioners and respondent no.1. Thus, she is guilty of contempt. Apparently, respondent no.4 had taken possession of the premises on 25.08.11, prior to sending of the notice by the petitioners on 24.05.12. The petitioners have failed to place on record anything to suggest that respondent no.4 had the knowledge of the aforesaid injunction order on the date of taking possession and thus, have failed to discharge the burden of proof placed on them. At the same time, the silence maintained by respondent no.4, despite being put to notice by the petitioner on 24.05.2012 raises doubts about the bonafides of the conduct of the said respondent. Respondent no.4 chose not to clear the air by informing the petitioner of the surrender of the tenancy by respondent no.1. However, this suspicion is not enough to hold respondent no.4 guilty of deliberate and wilful breach of the injunction order passed by this Court. Therefore, respondent no.4 cannot be said to have aided or abetted the violation of the said injunction order, so as to be held guilty of contempt of court. This does not, however, validate the surrender of tenancy by respondent no.1, and the doctrine of lis pendense contained in section 52 of the Act clearly applies in the present case. This aspect is dealt with in greater detail a little later.

22. As far as Respondent no. 2 and respondent no. 3 are concerned, petitioners have alleged that respondent no. 4 had taken the vacant possession of the tenanted premises from respondent no.1, in conspiracy with respondent no.2 & 3. With regard to Respondent no. 2 and respondent no. 3, it is not disputed that respondent no. 2 is the erstwhile owner of the premises in question. From the material placed on record, it is evident that respondent no.3, acting on behalf of respondent no.2, had executed a registered sale deed dated 08.03.11 in favour of respondent no. 4 and had also sent a Letter of attornment (undated) to respondent no.

1. Respondent nos.3 and 4 are not parties to the suit. This Court has not injuncted them from dealing with their ownership rights in the aforesaid premises. The order of injunction passed by this Court is not directed against them. Therefore, respondent no. 2 and 3 cannot be held guilty of abetting/aiding the contumacious act of respondent no.1.

23. Since respondent no.1‟s act of surrender of tenancy is in violation of this court‟s order and amounts to contempt of court, it is simply illegal. It is no surrender in the eyes of law. Recognising such surrender would imply that this court is conferring legitimacy to the contumacious act of respondent no.1. It would be pertinent, in this context, to refer to the decision of the Chancery Division in Clarke v. Chadburn, (1985) 1 All England Reports, 211 wherein it was held that an act done in wilful disobedience of an injunction or Court order is not only a Contempt of Court, but also an illegal and invalid act which could not, therefore, effect any change in the rights and liabilities of others. Similar view was expressed taken by the Supreme Court in Satyabrata Biswas & Ors. V.

Kalyan Kumar Kisku & Ors, AIR 1994 SC 1837, wherein the Contempt jurisdiction was invoked by the respondents against the appellants, and during the contempt proceedings, it transpired that a sub tenancy was created while the status quo order was in operation. The Supreme Court held that creation of sub-tenancy was in violation of the Status Quo order and parties were relegated to the position as existed on the date of the status quo order. The Supreme Court, inter-alia, observed thus:

"26. ... Such an order cannot be circumvented by parties with impunity and expect the court to confer its blessings. It does not matter that to contempt proceedings Somani Builders was not a party. It cannot gain advantage in derogation of the rights of the parties, who were litigating originally. If the right of sub-tenancy is recognised, how is status quo as of 15.9.1988 maintained? Hence, the grant of sublease is contrary to the order of status quo. Any act done in the teeth of the order of status quo is clearly illegal. All actions including the grant of sub-lease are clearly illegal."

24. Consequently, the impugned surrender being in violation of this Court‟s order, cannot be said to have terminated the tenancy rights of respondent no.1 in the said premises in question. However, I cannot lose sight of the fact that, but for the restraint on the tenant, respondent no.4, being the lawful owner of the premises, would have been entitled to taking possession of the premises on surrender of the said rights. She did not have the knowledge of the said injunction order. She has been in possession of the premises and using it for her personal purpose. Consequently, subject to the rights of the petitioners as may be determined eventually in the suit, respondent no. 4 may continue with the possession of the said premises and shall maintain status quo with regard

to possession till the disposal of the suit. The observations made herein, with respect to the status of tenancy of respondent no.1, are without prejudice to other rights of the petitioners and the respondents, as may be available to them under the law.

25. Considering the facts and circumstances in their entirety, respondent no.1 is held guilty of committing civil contempt under the Contempt of Courts Act, 1971. Respondent no. 2, 3 and 4 are held not guilty of Contempt.

VIPIN SANGHI, J.

JANUARY 03, 2014