Nizamuddin vs Ramzani
2015 Latest Caselaw 1478 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                     Date of decision: 20th February, 2015.

+                                CONT.CAS(C) 117/2015

       NIZAMUDDIN                                            ..... Petitioner
                          Through:      Mr. R.K. Sharma and Ms. Dezy Gaur,
                                        Advs.

                                 Versus

       RAMZANI                          ..... Respondent/Alleged contemnor
                          Through:      None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

CM No.2982/2015 (for exemption)

1.     Allowed, subject to all just exceptions.

2.     The application stands disposed of.

CONT.CAS(C) No.117/2015 & CM No.2981/2015 (for stay)

3.     The respondent, in this petition under Sections 10 and 12 of the

Contempt of Courts Act, 1971, is averred to be in civil contempt (within the

meaning of Section 2(b) of the said Act) for the reason of, inspite of having

arrived at a settlement with the petitioner that both will withdraw cases filed

against each other and in terms of which settlement the petitioner withdrew

complaints (pending in the Court of Metropolitan Magistrate (MM)-11,

Central Delhi, Additional Chief Metropolitan Magistrate (ACMM)-01,

CONT.CAS(C) No.117/2015                                            Page 1 of 14
 Central Delhi, MM-06, Central Delhi and MM-08, Central Delhi) having

not withdrawn the cases filed by the respondent against the petitioner.

4.     At the time of withdrawal of the complaints filed by the petitioner in

each of the cases, the statement of the petitioner was recorded inter alia to

the effect that he had entered into a settlement with the respondent and

whereunder both had agreed to withdraw all the cases pending against each

other and praying to the Court to dispose of the complaint as withdrawn or

seeking liberty to withdraw the complaints.

5.     In some of the aforesaid cases, the statement of the respondent was

also recorded to the effect that he had entered into settlement with the

petitioner, whereunder both had agreed to withdraw all cases pending

against each other and either also praying to the Court to dispose of the

subject complaint as withdrawn or giving no objection to the complaint filed

by the petitioner being dismissed as withdrawn. In other cases, though the

statement of the respondent was not recorded but the respondent was

present, when the statement of the petitioner was recorded.

6.     The said complaints (filed by the petitioner) were dismissed as

withdrawn or disposed of as settled.

7.     Section 2(b) supra defines civil contempt as meaning wilful


CONT.CAS(C) No.117/2015                                           Page 2 of 14
 disobedience to any judgment, decree, direction, order, writ or other process

of a Court or wilful breach of an undertaking given to a Court.

8.     Not finding any judgment, decree, order or direction of any Court

directing the respondent to withdraw the complaints / cases filed by him and

also not finding the respondent to have given any undertaking to any of the

aforesaid Courts from which the petitioner had withdrawn the complaints, to

the effect that the respondent shall also withdraw the cases / complaints

filed by him, I have at the outset enquired from the counsel for the

petitioner, as to how a case for entertaining this contempt case, is made out.

9.     The counsel for the petitioner has contended that since the

respondent, in each of the Courts from which the petitioner withdrew his

complaints, affirmed the settlement on the basis of which the petitioner

withdrew his complaints and which thus led the petitioner into withdrawing

his complaints, the action of the respondent of not, in accordance with the

said settlement, withdrawing the cases / complaints filed by him against the

petitioner, is contumacious. A bunch of following judgments has been

handed over:

       (I)    National Agricultural Co-Operative Marketing Federation of

       India Vs. Lalit Mohan 151 (2008) DLT 99;


CONT.CAS(C) No.117/2015                                            Page 3 of 14
        (II)   Santosh Kapoor Vs. Apex Computers P. Ltd. 157 (2009) DLT

       125;

       (III) D.K. Attery Vs. Kanwal Singh Mehra 159 (2009) DLT 764;

       (IV) Poonam Khanna Vs. V.P. Sharma 170 (2010) DLT 680; and,

       (V)    R.P. Malik Vs. Anil Sharma 154 (2008) DLT 647 (DB),

       though specific attention invited only to para 3 of Poonam Khanna.

10.    Poonam Khanna was not a contempt case but a petition under Article

227 of the Constitution of India against the order of the Guardianship Judge

holding a second petition in respect of guardianship of child to be

maintainable because of non-compliance of the settlement arrived at

between the parties in an earlier similar petition. A learned Single Judge of

this Court, while reversing the order of the Guardianship Judge for the

reason that the remedy was to enforce the settlement arrived at in the earlier

petition and not a second petition, observed in para 3 of the judgment on

which reliance is placed that where a suit / petition is disposed of in terms of

compromise arrived at between the parties, the compromise is enforceable

like a decree of the Court and has the same force and that merely because

one of the parties fails to comply with the terms of the compromise would

not give a fresh cause of action to either party to institute another suit on the


CONT.CAS(C) No.117/2015                                             Page 4 of 14
 same cause of action.      It was further observed that "the only course

available to the parties is to go for execution or for contempt of the Court".

The counsel for the petitioner contends that thus whenever there is any

order, besides seeking execution, contempt jurisdiction can also be invoked.

11.    In my opinion, the aforesaid passage cannot be read as a precedent for

the proposition that the contempt jurisdiction can also be invoked where the

remedy of execution is available. The said question, I reiterate, did not arise

for adjudication in the said judgment which was concerned only with

maintainability of a second petition on the ground of the other party having

not abided by the compromise arrived at in the earlier petition on the same

cause of action. What this Court held is that the remedy against such non-

compliance is execution of the compromise and not filing of another

petition.

12.    Moreover, the settled law is that a decree or order which is akin to a

decree and is executable, needs to be executed, as per law relating to

execution and cannot be enforced under the contempt jurisdiction of the

Court. Supreme Court in Babu Ram Gupta Vs. Sudhir Bhasin (1980) 3

SCC 47 held that if it were to be held that non-compliance of a compromise

decree or consent order amounts to contempt of the court, the provisions of


CONT.CAS(C) No.117/2015                                            Page 5 of 14
 Civil Procedure Code, 1908 (CPC) related to execution of decrees may not

be resorted to at all. It was clarified that the reason why breach of clear

undertaking given to Court amounts to contempt of court is that the

contemnor by making a false representation to the Court obtains a benefit

for himself and if he fails to honour the undertaking, he plays a serious fraud

on the Court, thereby obstructing the course of justice and bringing into

disrepute the judicial institution; the same cannot however be said of a

consent order or a compromise decree where the fraud if any is practiced by

the person concerned not on the Court but on one of the parties; in such a

case since the offence committed is qua the party and not qua the Court,

therefore, the very foundation of proceeding for contempt of Court is

completely absent.        It was further held that unless there is an express

undertaking given in writing before the court by the contemner or

incorporated by the court in its order, there can be no question of wilful

disobedience of such an undertaking.          Not finding either a written

undertaking filed or such undertaking impliedly or expressly incorporated in

the order of the court, it was held that the question of breach thereof did not

arise.   Subsequently, though the Supreme Court in Rama Narang Vs.

Ramesh Narang (2006) 11 SCC 114 held that merely because an order or


CONT.CAS(C) No.117/2015                                            Page 6 of 14
 decree is executable, would not take away the Court's jurisdiction to deal

with a matter under the Contempt of Courts Act but on the condition that the

violation of the order or the decree should warrant punishment under

Section 13 of the Contempt of Courts Act on the ground that the contempt

substantially interferes or tends to interfere with the due course of justice.

Thereafter, the Supreme Court in Maruti Udyog Limited Vs. Mahinder C.

Mehta (2007) 13 SCC 220 noticed both the said judgments and did not hold

Babu Ram Gupta to be no longer good law in view of Rama Narang and

rather noted that in Rama Narang also an undertaking had been recorded.

Mention may also be made of R.N. Dey Vs. Bhagyabati Pramanik (2000) 4

SCC 400 holding that the weapon of contempt is not to be used in

abundance or misused and that normally it cannot be used for execution of

the decree or implementation of an order for which alternative remedy in

law is provided for.

13.    The Supreme Court thereafter also in Food Corporation of India Vs.

Sukh Deo Prasad (2009) 5 SCC 665 has held that a defendant in a suit who

is directed to pay any sum of money, if does not pay the amount, the remedy

is to levy execution and not an action for contempt or under Order 39 Rule

2A of the CPC.         It was further held that the process and concept of


CONT.CAS(C) No.117/2015                                           Page 7 of 14
 execution is different from the process and concept of action for

disobedience / contempt. The same principle was reiterated in Kanwar

Singh Saini Vs. High Court of Delhi (2012) 4 SCC 307 where it was

further held that it is not expedient to invoke and exercise contempt

jurisdiction merely because other remedies may take time or are more

circumlocutory in character.

14.     Mention may lastly be also made of the judgment of T.S. Thakur, J.

sitting singly in this Court in Anshuman Sharma Vs. Manika Jain 114

(2004) DLT 47 where a father was alleging contempt by the mother of an

order in guardianship proceedings. It was found that the father had made a

statement to the effect that since the parties had arrived at an understanding

and had undertaken to abide by the same, he did not wish to press the

proceedings and the Court in the light of the said submission had dismissed

the proceeding as withdrawn leaving the parties to workout their rights and

obligations in accordance with understanding arrived at between them. It

was held:

(i) that though the order of dismissal of the proceeding was

undoubtedly passed in the light of the understanding between

the parties but that is not the same thing as the Court

incorporating the terms of understanding in the order or

affixing its imprimatur on the same.

(ii) The parties having resolved their differences amicably had not

considered necessary any order in the proceeding which was

dismissed as withdrawn.

(iii) If the parties intended, they could and ought to have insisted

upon disposal of the proceeding in terms of the settlement; this

was not done obviously because the father was not keen to

have the settlement incorporated in the order of the Court.

(iv) The proceeding having been dismissed as withdrawn the

reference in the order to the settlement / under settlement

arrived at could not be termed as incorporation of settlement /

understanding in the order of the Court.

15. The aforesaid judgment is found to be applying squarely to the facts

of the present case. I have also, in Kartikeya Kapur Vs. Kim Sukh Sinha

MANU/DE/3293/2009 (SLP(C) No.1858/2010 whereagainst was dismissed

in limine on 25th January, 2010) and Vimal Kumar Vs. Ramesh Negi

MANU/DE/2041/2011 (SLP(C) No.14025/2011 whereagainst was

dismissed in limine on 4th July, 2011) though without noticing Anshuman

Sharma, taken the same view.

16. As far as the other judgments handed over by the counsel for the

petitioner are concerned, having perused the same, I do not find the same

also to be supporting the case of the petitioner, in any manner whatsoever.

National Agricultural Co-Operative Marketing Federation of India supra

was a case of the alleged contemnor having not deposited / paid the monies,

subject to payment of which he was granted ad-interim order restraining the

relator from encashing cheques. It was held that failure to comply with a

condition for grant of interim order did not amount to contempt and only

resulted in the interim order not coming into force or standing vacated.

During the course of holding so, it was held that though from a commercial

angle, the action of the alleged contemnor may appear to be demeaning but

would fall short of contumacious action as contemplated by law. Santosh

Kapoor supra was a case of breach of undertaking given to the Court. In the

present case, though the respondent in the Courts from which the petitioner

withdrew his complaints admitted having reached a settlement with the

petitioner and under which settlement, the respondent also was to withdraw

the cases / complaints filed by him but neither gave any undertaking to the

Court to so withdraw the cases / complaints nor did the Court direct the

respondent to so withdraw the cases / complaints or acted on any such

undertaking of the respondent; the said Courts dismissed the complaints

filed by the petitioner on the statement of the petitioner withdrawing the

same and which the petitioner was entitled in law to do, even without the

respondent affirming any statement. I may at this stage record that there is

no document of settlement. In fact, the Court did not even put its

imprimatur upon any consent / compromise / consensus.

17. D.K. Attery supra rather than helping the petitioner, is against the

petitioner. It, relying on Jhareswar Prasad Paul Vs. Tarak Nath Ganguly

(2002) 5 SCC 352 held that the contempt power must be exercised very

sparingly and it is only in cases, where majesty of the law is sought to be

lowered on account of the action or inaction of the alleged contemnor that

the Court must invoke this power of initiation of contempt proceedings.

Similarly, R.P. Malik supra is a case of criminal contempt (and with which

we are not concerned in this petition).

18. Though the counsel for the petitioner has not argued but I have also

considered whether any other remedy is available to the petitioner against

default, if any, on the part of the respondent in not withdrawing the cases /

complaints filed by him against the petitioner and which, according to the

petitioner, the respondent in the settlement arrived at, had agreed to

withdraw. The petitioner in para 3 of the petition has pleaded that the

respondent has filed one civil suit which is pending in the Court of

Additional District Judge and one complaint case which is pending in the

Court of the Metropolitan Magistrate. However, from the title of the

complaint, the same is found to have been filed by one Mr. Nadeem Ahmed

and not by the respondent. The petitioner has not pleaded who is the said

Mr. Nadeem Ahmed or as to how the complaint filed by the said Mr.

Nadeem Ahmed was also agreed to be withdrawn.

19. In my opinion, the petitioner certainly has remedies against the

default, if any of the respondent. The petitioner, in the civil suit, can file an

application for recording of the settlement arrived at along with certified

copies of the orders of the Courts from which the petitioner, in view of the

said settlement, had withdrawn his complaints. In the event of the

respondent denying the settlement, the Civil Court under Order XXIII Rule

3 of the CPC is empowered to decide, whether there is any such settlement

or not. Though the Court of Metropolitan Magistrate is not so empowered

and also does not have any inherent powers but it would always be open to

the petitioner to file a petition under Section 482 of the Criminal Procedure

Code, 1973 (CrPC) for quashing of the said complaint, on the basis of the

settlement aforesaid and it will be for the Court dealing with the said

petition, to determine whether there is any such settlement or not and if such

settlement is found, the said complaint case shall be quashed. There is

ample authority for such a course of action being available under Section

482 of the CrPC.

20. Supreme Court recently in Narinder Singh Vs. State of Punjab

(2014) 6 SCC 466 laying down the principles to guide the High Courts, in

giving adequate treatment to settlement between the parties and the exercise

of powers under Section 482 of the CrPC inter alia held that where the

parties have reached the settlement and on that basis petition for quashing

criminal proceedings is filed, if the Court forms an opinion that ends of

justice would be served or abuse of the process of the Court will be

prevented, the power will be exercised where the offence is not heinous and

where the criminal cases have overwhelmingly civil character.

21. It is thus not as if, invoking contempt jurisdiction is essential for the

reason of the petitioner having no other alternative remedy.

22. Before parting with the case, I must record that it is not as if, this

Court is not conscious of the predicament in which the petitioner finds

himself. However, the predicament is of the own making of the petitioner.

The petitioner, before withdrawing the complaints filed by him, ought to

have ensured, either that the application for withdrawal is filed also in the

complaint filed by Mr. Nadeem Ahmed against the petitioner or got the

settlement recorded in the civil suit filed by the respondent with the

undertaking of both the parties to withdraw the respective cases or to have

got such an undertaking of the respondent recorded, while having the

statement of the respondent recorded in the Court from which the petitioner

has withdrawn his complaints. The petitioner did not take this care and has

to now suffer for not taking recourse to the remedies, as mentioned

hereinabove.

23. I therefore do not find any ground for entertaining this contempt case,

which is dismissed. However, the said dismissal will not come in the way

of the petitioner taking appropriate remedy.

No costs.

RAJIV SAHAI ENDLAW, J.

FEBRUARY 20, 2015 bs