Manoj vs Smt.Barfi Devi & Others
2015 Latest Caselaw 6578 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                    Reserved on: 26.05.2015
                                                  Pronounced on: 03.09.2015

+     CCP(O) 69/2012 in TEST.CAS. 29/2005
      MANOJ                                          ..... Petitioner
                       Through: Mr. Rajat Aneja with Mr. Vijay
                                 Kasana, Advs.
                       Versus

      SMT.BARFI DEVI & OTHERS                     ..... Respondent
                   Through: Mr. N.S. Dalal with Mr. D.P. Singh,
                             Adv. for R-3 and R-5 to R-7.
                             Ms. Savita Rustogi, Adv. for R-2.
                             Mr. Manoj Nagar, Adv. for R-4 with
                             R-4 Rameshwar in person.

CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI

NAJMI WAZIRI, J.

CCP(O) 69/2012

1. In I.A. No. 8950/2008, interim orders under Order XXXIX, Rules 1 &

2 of the CPC were passed on 01.08.2008. The petitioner had sought

restraint upon the respondents from parting with possession and creating

third party interest in respect of the properties mentioned in Schedule "A" of

the Probate Petition. Construction was sought to be raised by the

respondents, in particular by respondent No.2 Om Prakash, therefore,

another I.A. 5488/2010 under Order XXXIX, Rules 1 & 2 of the CPC was

filed by the plaintiff in which the following restraint order came to be passed

on 28.04.2010:

"4. The learned counsel for the petitioner has contended that though the probate petition is fixed for evidence and there is already an order passed on 1st August, 2008 restraining the Objectors from parting with possession or creating third party rights in respect of the properties mentioned in Schedule „A‟ of the Probate Petition but despite this the Objectors especially Objector - Om Prakash is raising constructions on the land situated in Revenue Estate of village Kanwra. The details of which are given at Serial No. 3 (iii) to (v)

5. Photograph of the land in question are also placed on record.

6.Keeping in view the averments made in the application and the fact that there is already a restraint order passed against the Objector in respect of the five properties mentioned in the probate petition, the Objectors could not have raised the construction on the land in question. In order to remove the said ambiguity in the order dated 1st August, 2008, the Objectors are restrained from creating third party rights and raising any constructions, till the next date of hearing in respect

of all the five properties.

2. The learned counsel for the petitioner submits that these orders were

duly served upon the respondents, i.e., respondent Nos. 1 to 4 at that point of

time; that subsequently item no. 5 of the properties mentioned in Schedule

"A"of the Probate Petition, i.e., land measuring 6 Kanal 5 Marla in village

Kanwara, Faridabad, falling in Khewat No.57, Khatoni No.105, Mustaqil

No.28, Killa No.17/1/2 was sold on 11.06.2012 for a consideration of

Rs.27,34,695/- and the possession of the property, as per the sale deed, was

handed over to respondent Nos. 5 to 7 (respondent no. 7 is yet to be

impleaded and I.A.4258/2013 is pending for the said purpose); that the land

was thereafter, mutated in favour of the purchasers on 13.07.2012. This

contempt petition was first listed 09.07.2012, immediately upon the

petitioner getting a whiff of the property having been sold by respondent

Nos. 1 to 4 in favour of respondent Nos. 5, 6 and 7. In the contemnors' I.A.

11924/2012 which was filed seeking interim directions, this Court had yet

again ordered that the parties shall maintain status quo and not proceed any

further with the alleged transaction in respect of the aforesaid property

without further orders. This Court had noticed inter-alia in the aforesaid

I.A. as under:

"Counsel for the plaintiff/applicant submits that the property, which is the subject matter of this application, is also the subject matter of Test. Cas. No.29/2005, in respect thereof, certain interim orders have been passed by this Court, initially on 1st August, 2008 in I.A. No. 8950/2008, whereby the non applicant/objectors in that matter were restrained from parting with possession or creating third party rights in respect of the properties mentioned in the Schedule "A" of the Probate Petition. Counsel further submits that the Objectors in that matter are also arrayed as respondent Nos. 1 to 4 in the present contempt petition. He further submits that thereafter once again this Court was obliged to pass restraint orders in the Test. Cas. No.29/2005 on 28th April, 2010, this time, restraining the objectors, "from creating third party rights and raising any construction till the next date of hearing in respect of the five properties", that were subject of the aforesaid Test. Cas. No.29/2005. It is further submitted that the said orders passed on 1st August, 2008, as well as on 28th April, 2010, continue to be in force till today. Copies of the aforesaid orders have also been annexed to this application.

It is now contended that despite the fact that these restraint orders continue to be in force till

today, the respondent Nos. 1 to 4 have entered into an agreement to sell with the respondent Nos. 5 to 6 with regard to one of the five immoveable properties that are subject matter of the Test Cas. No.29/2005. The said property comprises of the land ad-measuring 6 kanals 5 marlas, situated in village Kanwra, Tehsil & District Faridabad, Haryana, im Khewat No.57, Khatauni No.105, Mustaqil No.28, Killa No.17/1/2. It is also alleged that respondent Nos. 5 and 6 are fully aware of the injunction orders of this Court passed on 1st August, 2008 and 28th April, 2010; and notwithstanding the same, and in open defiance thereof, have agreed to purchase the said property from the respondent Nos. 1 and 2, who are stated to have held themselves out to the purchasers to be the exclusive and absolute owners of the said property. It is also alleged that the agreement to sell has been entered into between the respondent No. 1 and 2 as Sellers and the respondent Nos. 5 and 6 as Buyers in the first week of June 2012, for a total consideration of Rs.2 crores; and out of the said consideration, a sum of Rs.20 lakhs, being the earnest money, has already been received by not only by the respondent Nos. 1 and 2 but also by respondent Nos. 3 and 4. Counsel further submits that the entire attempt by the respondent Nos. 1 to 4 to sell the aforesaid property,

which happens to be one of the properties mentioned in the Test. Cas No.29/2005, to respondent Nos. 5 and 6, who are third parties to the Test. Cas No.29/2005, is in open defiance of the aforesaid orders of this Court passed on 1st August, 2008 and 28th April, 2010 and, therefore, constitutes gross contempt. In the circumstances, and prima facie, I am satisfied that the respondent Nos. 1 to 4 have violated the orders of this Court passed on 1st August, 2008 and 28th April, 2010. "

3. This Court notices that the order of 01.08.2008, restraining the

respondents from parting with possession or creating third party rights in

respect of properties mentioned in Schedule "A" of the Probate Petition was

made absolute on 23.07.2012. Respondent No. 2, one of the alleged

contemnors, has been represented by Mr. N.S. Dalal and otherwise, the

respondents have been represented through counsel, namely Mr. Salender

Singh, Mr. N.S. Dalal, Pradeep Kumar Gupta, Mr. Omvir Dahiya (proxy

counsel), Mr. H.L. Verma (proxy counsel) and Mr. Anil Kumar, Advocates.

The service report shows that the interim injunction order dated 01.08.2008

was served upon respondent No. 3 on 19.09.2008. On 25.11.2008, when Mr.

N.S. Dalal and Mr. Pradeep Kumar Gupta had appeared for respondent No.3

and they were granted four weeks' time to file a response. The response was

never filed. As noted above, the order was made absolute on 23.07.2012.

Clearly, this constitutes due notice of the orders passed in the application.

Simultaneously, respondent Nos. 1, 2 and 4, who were objectors to the

probate petition were proceeding with the recording of the evidence before

the Joint Registrar on 18.09.2008 when PW-1, Mr. Manoj was to be cross-

examined. The proceedings could not be completed because of non-

availability of the main counsel. Indeed, the learned Joint Registrar recorded

as under:

"The witness PW-1 Mr. Manoj is present for cross-examination but has not been cross-examined as proxy counsel for the objectors states that senior counsel was under the impression that an application under Order 1 Rule 10 CPC moved by the petitioner is to be decided today and therefore he is not prepared with the cross examination. It is also stated by the proxy counsel appearing for the objectors that the objectors are aware that the notice of other application has been issued to them for 25.11.2008 by the Hon‟ble Court. It is surprising to note that proxy counsel appearing for the objectors is aware of the each and every proceedings which took place on 01.08.2008 before the Hon‟ble Court but he is not

aware about the application under Order 1 Rule 10 CPC i.e. I.A. No. 8951/2008 being dismissed as withdrawn on the submissions of learned counsel for the petitioner"

4. The case was then posted for evidence of PW-1 on 31.10.2008 as a

final opportunity to the objector for cross-examination of the said witness

subject to payment of costs of Rs.2,000/-. On 30.10.2008, the cross

examination of PW-1 Mr. Manoj was concluded. As noted above, on 25th

November, 2008, Mr. N.S. Dalal sought and was granted time to file a reply

to the application. In the interim, the injunction was granted and the order

was made absolute on 23.07.2012. It cannot, therefore, be said that the

respondents were not aware of the first injunction.

5. Subsequently, on 23.03.2009, 27.03.2009, 16.07.2009, 29.07.2009

12.11.2009, 16.04.2010, the parties have been represented through counsel.

6. Mr. Aneja, the learned counsel for the petitioner submits that two sets

of objections were filed on behalf of Smt. Burfi Devi, who has since passed

away; that another set of objections were filed on behalf of respondent Nos.

2 to 4 on the same date, i.e., 14.11.2005. He therefore, submits that it cannot

be said that the respondents were not aware of the case which was

continuing before the Court and were not aware of the order passed in I.A.

5488/2010.

7. Mr. Dalal submits that he has only been appearing for Smt. Burfi Devi

who passed away on 02.02.2013 and he never appeared on behalf of the

other respondents. He refers to the recording in the order apropos his first

appearance only with regard to Smt. Burfi Devi. Mr. Dalal submits that there

is no conflict of interest between the stand of the deceased respondent No. 1

and the remaining respondents; that the two injunction orders were never

served upon the respondent he represents. He further submits that the

petitioner has failed to show how and when the injunction order was ever

served upon respondent No. 3, nor has it been so pleaded in the application

for contempt. In the absence of any such injunction order having been

served upon respondent No. 3, he cannot be stated to have violated the same.

He states that respondent No. 3 has the highest regard for this Court and

would not ever conceive of violating any Court order. Mr. Dalal reiterates

the averments made in the reply on behalf of respondent No. 3. However,

he admits that the sale in favour of respondent Nos. 5, 6 and 7 has been

effected by way of a sale deed dated 11.06.2012 and indeed, the property

has been mutated in favour of the purchasers and the property has already

been transferred to them; that as per the sale deed, physical possession too

has been handed over to the purchasers. He submits that in contempt

proceedings, the charges have to be proved beyond reasonable doubt.

Therefore, evidence has to be led in the matter to establish whether

respondent No. 3 was ever served with the injunction order. He relies upon

the judgment of the High Court of Jammu & Kashmir in Jawahar Singh v.

Des Raj and ors., AIR 2002 J& K 134, paragraph 6 of which reads as under:

"There is no quarrel on this point of law that before a party can be punished for disobedience or breach of order of an injunction recorded by the civil Court, it must be established that the order of injunction has been disobeyed and that such order is clear unambiguous and that the party was not under any bona fide misapprehension as to the scope of order alleged to have been disobeyed. A person alleged to have committed breach or disobedience of the Court order cannot be punished for such breach without giving him a clear cut idea of the alleged breach by issuance of notice and by stating the alleged prescribed act committed in breach by him. The alleged breach of the Court order is always factual in nature, in that case Court has no choice what to decide as to whether such breach/disobedience has been committed by the parties giving an opportunity to the parties to prove

their respective claims. The order of detention of the petitioner passed by the trial Court does no where demonstrate that any notice was ever given to him before proceeding against him in the matter. It is taken note of that proceeding under Order 39, Rule 2- A, CPC are quasi criminal in nature since the person committing the breach of the order deserves to be imprisoned as a consequence thereof. It is, therefore, all the more necessary that before proceeding against the person alleged to have committed breach of the Court, notice is required to be given to him as to what is the case he has to meet so that he can file his explanation/objection to adduce the evidence accordingly. The learned appellate Court has not looked into this aspect of the case and has committed irregularity in dismissing the appeal against the said order of the trial court.

8. Finally, he submits that if there was any such injunction order, it

ought to have been reflected in the revenue record.

9. To establish that the injunction order was never served upon the

respondents, Mr. Dalal relies upon the Process Server's report. He submits

that the Process Server's report refers only to the summons with a copy of

the application. Hence, he asserts that it cannot, in any way, be inferred to

be a service of the injunction order.

10. Ms. Savita Rustogi, the learned counsel for respondent No. 2 submits

that respondent No. 2 has been aware of the court's injunction order dated

01.08.2008 right from the day it was passed. She submits that respondent

No.2 has not sold the property till date and that he is in possession of the

said property, therefore, there is no contempt; that respondent No. 2 has not

signed the sale deed. She submits that in terms of this Court's aforesaid

injunction order, restraining the respondents from parting with possession or

creating any third party interest with respect to the properties concerned,

respondent No. 2 has acted accordingly. She further contends that the

construction raised on the property after the aforesaid injunction order was

not restrained by any Court order. According to her, in terms of the first

restraint order, respondent No. 2 did not create any third party rights in the

suit property. She also states that subsequent to the second restraint order

dated 28.08.2010, the construction raised by respondent No. 2 has been

abandoned.

11. Mr. Manoj Nagar, the learned counsel for respondent No. 4 submits

that the said respondent was neither in possession of the land in question nor

had he ever tried to sell the property nor has he parted with possession of the

same. He further submits that since the said respondent was never in

possession of the suit property, therefore, the possibility of parting with

possession of the same would never arise. He, hence, states that no

contempt proceeding would lie against respondent No. 4.

12. Mr. Dalal argues that the purchasers are respondent Nos. 5 to 7; that

they are innocent purchasers; that they purchased the land in bona fide

manner as they were not aware about this Court's order restraining creation

of third party interest; that the property was purchased only after due

diligence having been obtained from the revenue records which did not

reflect any endorsement regarding any restraint order from the Court.

13. This Court notices that on 18.09.2008, Mr. Somvir Dahiya had

appeared for the objectors as proxy counsel. It was noted that the proxy

counsel for the objectors was aware of each and every proceedings which

took place on 01.08.2008, i.e., the date on which the injunction order was

passed. On 30.10.2008, Mr. N.S. Dalal had appeared on behalf of objector

No. 2 who is represented by Ms. Savita Rustogi today. Yet again, on 25 th

November, 2008, Mr. N.S. Dalal appeared for the said respondent. On that

day, he sought time to file a reply to I.A. 8950/2008 in which the restraint

order was passed. He once again appeared for the said respondent on 7 th

January, 2009. The objectors have subsequently been represented through

counsel and it cannot be said that they were not aware of either the first

restraint order passed on 01.08.2008 or the second restraint order passed on

28.04.2010.

14. Mr. Dalal clarifies that he appeared for respondent No. 1 as recorded

on 29.11.2012 and with respect to his appearance on 23.07.2012, he submits

that it does not refer to the previous appearance on behalf of respondent No.

2. In view of the aforesaid, this Court is of the view that the respondents

were duly served and they were conscious of the Court's order. Apart from

that, the service report shows that respondent No. 3, Bal Chand was served

on 27.02.2013 through the Process Server. The affidavit of compliance

under Order XXXIX, Rule 3 of the CPC is on record as of 5th August, 2008.

15. In reply to the contempt petition, respondent No. 2 had submitted that

neither was the answering respondent desirous of selling the property nor he

would attempt to do so since he enjoys leasehold rights only; that

furthermore, respondent Nos. 5 and 6 have not shown any interest in

purchasing the land. Therefore, since no transaction was underway, it is

submitted that there is no question of any collusion or connivance between

respondent Nos. 3 and 4 for facilitating the alleged sale.

16. The registered sale deed dated 11.06.2012 annexed to the rejoinder to

the petition shows that the property was sold by respondent No. 3. This

Court notices that the sale deed records that property ad-measuring 6 kanals

5 marlas, situated in village Kanwra, Tehsil & District Faridabad, Haryana,

in Khewat No.57, Khatauni No.105, Mustaqil No.28, Killa No.17/1/2 was

sold by one Bhim Singh S/o Khillo S/o Bhule Ram R/o Kanwra Distt.

Faridabad, and Smt. Burfi Devi W/o Late Shri Lakhpat, R/o WZ-78, Village

Khyala, New Delhi, who has since passed away.

17. Mr. Dalal submits that this person is also known by the name of Bal

Chand, therefore, there is no dispute about the identity of the person. The

sale deed, however, does not mention either respondent No. 2 or respondent

No. 4. Therefore, according to him, respondent No. 4 has nothing to do with

the dispute. The Court would note that as per their replies, both respondent

No. 2 and respondent No. 3 state that the property is in possession of the

former. However, this argument is untenable since respondent Nos. 5 to 7

have admitted that the sale deed is duly registered and they are in possession

of the property. The sale deed records that physical possession has been

handed over to the purchasers.

18. Mr. Aneja submits vehemently that in their reply, the respondents

have not even whispered about the sale deed; that it is only now during the

course of hearing, when he refers to the sale deed in the rejoinder that they

admit to the sale deed; that this would show that they have something to

hide; that in the reply of respondent No. 3, there is no mention at all about

the sale deed; that indeed, he denies even a suggestion of an agreement to

sell.

19. The registered sale deed records as under:-

"The peaceful possession of the land has been handed over along with

the documents to the purchaser."

20. In view of the above, the Court is of the view that respondent Nos. 1

to 4 were duly served with the injunction order. The sale deed undeniably

was executed on 11.06.2012 whereby the suit property has been transferred

to respondent Nos. 5 to 7. This transfer by way of a sale deed was done in

breach of the two restraint orders passed by this Court.

21. The Court finds that respondent Nos. 2, 3 and 4 have committed

breach of this Court order 01.08.2008 and accordingly they are guilty of

contempt of this Court.

22. List before the Roster Bench for order on punishment on 14.10.2015.

NAJMI WAZIRI, J SEPTEMBER 03, 2015/acm/nrk