Jamna Datwani vs Kishin Datwani & Ors.
2015 Latest Caselaw 5279 Del

*                  HIGH COURT OF DELHI AT NEW DELHI

+                               Cont. Cas. (C) No.652/2014

                                               Decided on : 23rd July, 2015

JAMNA DATWANI                                          ...... Petitioner
                        Through:      Ms. Tara V. Ganju, Advocate.

                             Versus

KISHIN DATWANI & ORS.                                  ...... Respondents

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

V.K. SHALI, J.

C.M. No.20444/2015 (for delay)

1. This is an application seeking condonation of 11 days delay in

filing the review petition.

2. I have heard the learned counsel. For the reasons stated in the

application, the same is allowed and delay of 11 days in filing the appeal

is condoned as 'sufficient cause' has been shown.

3. The application stands disposed of.

Review Petition No.553/2014

1. This is a review petition filed by the petitioner against the order

dated 24.9.2014 by virtue of which the petition seeking initiation of

contempt proceedings against respondent No.1, Kishin Datwani was

disallowed.

2. If one reads the said order, three essential features are reflected.

Firstly, that no case of 'wilful disobedience' of the order dated 2.5.2014

passed by the Division Bench was held to be made out. Secondly, even if

it is assumed that there was disobedience on the part of the respondent is

made out, initiation of contempt proceedings being a discretionary power

to be exercised by the court and the petitioner cannot claim issuance of

notice to the respondent as a matter of right more so when there is an

alternative remedy of invoking provision under Order 39 Rule 1 & 2 CPC

and lastly, in essence, the petitioner was seeking recovery of monies from

the respondent, her son, which in terms of the judgment of the Supreme

Court in the case of Kanwar Singh Saini vs. High Court of Delhi; (2012)

4 SCC 307 could be effected by filing execution petition.

3. By the present review petition, a fresh attempt seems to have been

made to convince the court with regard to initiation of contempt

proceedings by urging that there is an error apparent on the face of the

record; however, if one sees the written submissions and the judgment

relied upon by the petitioner in essence, an attempt is made to reargue the

matter afresh and get the notices issued. While doing so, it has been

pointed out that in similar circumstances, the Division Bench which had

passed the order in question had issued notice to the other son who fell in

line unfortunately the present respondent was not a party at that point of

time in the said contempt petition. Secondly, provisions of Order 39 Rule

2A CPC cannot be invoked as this is not an order passed under Order 39

Rule 1 & 2 CPC. Lastly, it has been contended that the respondent does

not have any property in India. Therefore, the order could not be enacted.

4. All these submissions were made earlier except that he does not

have the property in India but was pointed out that he is a US citizen. So

far as the question of not owning of the property is concerned, it is

presumptuous and that cannot be a ground for review.

5. I am not at all convinced that there is any error apparent on the face

of the record in the order dated 24.9.2014 which may warrant review of

the same. As a matter of fact, reading of the written submissions given

by the petitioner would show that the petitioner is making an averment

that the court has failed to appreciate that disobedience on the part of the

respondent was wilful and a presumptuous statement has been made that

even if the petitioner goes for execution of the order dated 2.5.2014

passed by the Division Bench then it cannot be executed as the

respondent does not have any property in India. All these facts which are

sought to be urged were submitted before this court earlier and are not

grounds for seeking review.

6. The learned counsel has also relied upon the four judgments in this

review petition given by the Apex Court and various High Courts which

are Lopaben Patel vs. Hitendra Rambhi Patel; 2000 Cri. LJ 2709,

Shankerpuri Chanpuri Goswami vs. Abdulhakim Asmadmahamad; (1985)

ILLJ 281 Guj., Mira Bose vs. Santosh Kumar Bose; AIR 1973 Calcutta

483 (V 60 C 111); Jyotirmoyee Debi vs. Assistant Settlement Officer and

Others; AIR 1973 Calcutta 486 (V 60 C 112) and Sarladevi Bharatkumar

Rungta vs. Bharatkumar Shivprasad Rungta & Anr.; 1988 Cri. L.J. 558

which were cited earlier also.

7. I had carefully gone through the same and observed that these

judgments are distinguishable for which reasons are given therein. In the

order which has been sought to be reviewed, it has been specifically

mentioned by this court that in most of the judgments which have been

relied upon by the petitioner, the contempt action was initiated as the

issue of grant of maintenance order was sought to be enforced which was

the only source of livelihood in the case of the petitioners or the

applicants in the said cases. While as in the instant case, though the

question of monies for sustenance of the petitioner, who happens to be

the mother of the respondent Kishin was involved but it was felt that he is

not the sole person who was saddled with the responsibility of payment of

monies to her mother. Brother and the sister of the respondent Kishin

were also saddled with the payment of monies which in fact was being

paid. Even the respondent had initially paid a sum of Rs.3,60,000/- out of

the total sum of Rs.5 lacs and the only grievance was that he had not paid

the monthly payments of Rs.35,000/-, which were payable from the

msonth of May, 2014 onwards and Rs.1,50,000/- which was to be paid

for the purchase of a car. The aforesaid facts are the distinguishing

features so far as the judgment in these four cases is concerned.

8. There is no dispute about the proposition of law laid down in all

these judgments including Rama Narang vs. Ramesh Narang & Anr.;

(2006) 11 SCC 114 which has been cited now by the petitioner but one

essential feature which the learned counsel for the petitioner has failed to

appreciate is that law is not to be applied mechanically and in abstract but

it must fit into the factual matrix in which the pronouncement is made

and also in the light of the facts which are involved in that particular case

which is in hand.

9. So far as Rama Narang's case (supra) is concerned, the facts of

that case are also distinguishable because that was a case where as many

as 7-8 cases were sought to be settled with the active intervention of the

Apex Court which were pending before Bombay High Court and a

company court being a family dispute. The parties had got their

statements recorded before the Apex Court and yet after recording the

statement, one of the parties tried to retrace his steps and rock the boat by

stating that he would not abide by his earlier statement as a consequence

of which the entire compromise would have fallen through. It was in

such a contingency that the Apex Court in Rama Narang's case (supra)

observed that no doubt a consent decree may be executable but that does

not preclude the court from initiating any contempt action against any

party who is indulging in wilful disobedience by a court order.

Therefore, the facts of Rama Narang's case (supra) are nowhere near the

facts of the present case.

10. For the aforesaid reasons, I feel it too difficult to change the view

which has already been taken in the present petition and initiate any

contempt action against the respondent Kishin. I do not find it to be a fit

case where it can be said that there is any error apparent on the face of the

record to warrant review. Hence, the review petition is dismissed.

V.K. SHALI, J.

JULY 23, 2015 'AA'