Delhi High Court
M/S Caravan Commercial Company ... vs Yashashwi Aggarwal & Ors on 8 March, 2017
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: September 30, 2016
Judgment delivered on: March 08, 2017
+ FAO(OS) 385/2014 & CM No. 14139/2014
M/S CARAVAN COMMERCIAL COMPANY LTD
..... Appellant
Through: Mr. Arvind Nigam, Sr. Adv. with Mr.K.
Datta & Mr.Manish Srivastava, Advs.
versus
YASHASHWI AGGARWAL & ORS
..... Respondents
Through: Mr. Dayan Krishnan, Sr. Adv. with
Mr.Jeevesh Nagrath, Ms.Monica
Manchanda, Mr.Chetan Gautam &
Ms.Meghna Bal, Advs. for R-1 & 2.
Mr. Manish Vashist, Adv. for R-3 & 4
Mr.Deepak Sahni, Adv. for R-11.
Mr.Lalit Gupta with Mr.Gaurav Lavaria,
Advs. for R-12 to 18.
+ FAO(OS) 386/2014 & CM Nos. 14143/2014 & 14145/2014
SMT. PUSHPA DEVI
..... Appellant
Through: Mr.Deepak Sahni, Adv.
versus
SHRI YASHASHWI AGGARWAL & ORS
.... Respondents
FAO(OS) 385/2014 & connected matter Page 1 of 61
Through: Mr. Dayan Krishnan, Sr. Adv. with
Mr.Jeevesh Nagrath, Ms.Monica Manchanda,
Mr.Chetan Gautam & Ms.Meghna Bal, Advs.
for R-1 & 2.
Mr. Manish Vashist, Adv. for R-3 & 4
Mr. Arvind Nigam, Sr. Adv. with Mr.K. Datta,
Mr.Manish Srivastava, Advs. for R-9.
Mr.Lalit Gupta with Mr.Gaurav Lavaria, Advs.
for R-11 to 17.
CORAM:
HON'BLE MS JUSTICE INDIRA BANERJEE
HON'BLE MR JUSTICE V. KAMESWAR RAO
JUDGMENT
V. KAMESWAR RAO, J
CM No. 14145/2014 in FAO(OS) 386/2014 (filed by appellant under Section 151
CPC seeking permission for filing lengthy list of dates and events)
For the reasons stated in the application, the same is allowed and disposed of.
FAO(OS) 385/2014 & FAO(OS) 386/2014
1. These two appeals impugn order dated August 4, 2014 passed by the learned
Single Judge in suit bearing CS (OS) No. 1561/1994 whereby the learned Single
Judge has decided an application under Order 39 Rule 2A read with Section 151
CPC preferred by the respondents 1 and 2 herein, wherein it has been held that the
appellants herein have disobeyed the status quo order dated May 07, 1997
subsequently modified by orders dated September 16, 2005 and November 24, 2009
and as such, guilty of committing contempt of the Court and further directed M/s
Caravan Commercial Co. Ltd. (the appellant in FAO (OS) no. 385/2014) (Caravan
in short) to deliver the vacant possession of entire ground floor as received by it
from Smt. Pushpa Devi (appellant in FAO (OS) No. 386/2014) within eight weeks.
Similarly, Smt. Pushpa Devi has been directed to obtain physical possession of the
entire ground floor delivered by her to M/s Caravan (appellant in FAO(OS)
385/2014) within eight weeks. The learned Single Judge has also observed that
awarding of punishment will be dependant upon the compliance of the order. We
may state here that, the period of eight weeks was extended initially on September
23, 2014 in the appeals. Thereafter, on November 12, 2014, in both the appeals, the
Court directed parties to maintain status quo till the next date of hearing and on
January 25, 2016, the Court directed the continuance of interim orders till further
orders.
FACTS (as noted in FAO(OS) 385/2014):-
2. There are three co-owners namely (i) Late Smt. Shanti Devi (respondents 12 to
18 in FAO (OS) No. 385/2014 are her legal heirs), respondents 11 to 17 in
FAO(OS) No. 386/2014 (ii) Late Smt. Bimla Devi (respondents 3 to 6 in FAO(OS)
No. 385/2014 and FAO(OS) 386/2014 are her legal heirs and (iii) Smt. Pushpa Devi
(the appellant in FAO (OS) 386/2014) in respect of suit property No. 42-44, Sunder
Nagar, New Delhi („suit property‟ in short). A perpetual lease in respect of the suit
property was executed in their favour in the year 1954. A fresh perpetual lease was
executed in the year 1992 on the demise of Smt. Shanti Devi to include her heirs
(respondents 15 to 18) and Late Sh. Mahinder Kumar Gupta, S/o Late Smt. Shanti
Devi, Late Smt. Bimla Devi and Smt. Pushpa Devi. The three co-owners are said to
be the sisters-in-law. It is the case of the appellant Caravan that between 1954 to
1977 the suit property was entirely tenanted to the Embassy of Poland and from
1977 to 1994, it was entirely tenanted to the DPR of Korea Embassy. It is stated
that the suit property was never physically occupied by any of the three co-owners
or their families till 1994. The built-up construction consists of an independent
ground floor and an independent first floor and terrace. Two independent and
separate driveways and entrances access these two built-up portions having separate
kitchen and place of worship. There are two independent servant quarters at the end
of the two driveways. There is no internal staircase between the two units. It is the
case of the appellant Caravan that on November 15, 1991 all three co-owners
entered into an Agreement to Sell with Caravan agreeing to convey and transfer the
entire suit property to Caravan for a total consideration of Rs.1.90 crores. On
November 16, 1992, another Registered Agreement to Sell was executed by all the
three co-owners in favour of Caravan. Under the aforesaid two Agreements to Sell,
a total of Rs.66 lakhs was paid to the three co-owners in equal shares. The
permission of the Income Tax Authority and Urban Land Ceiling Authority was
obtained.
3. It is the case of the Caravan that it was agreed that the sale transaction was to
be completed on or before October 31, 1993. It is represented that in September,
1993, Caravan became aware of a suit being CS(OS) No. 1578/1992 filed by one
Sh. Arun Batra seeking specific performance of an alleged oral Agreement to Sell in
respect of the suit property. It is stated that Caravan also learnt that by an ad-interim
ex-parte order dated April 23, 1992, Late Smt. Bimla Devi and the legal heirs of
Late Smt. Shanti Devi had been restrained from selling their respective shares in the
suit property. It is stated by Caravan that the co-owners were duly aware of the said
ad-interim ex-parte order but did not inform the appellant Caravan and in fact
received a further part of the sale consideration in November 1992. It is the stand of
Caravan that under these circumstances, it had filed a suit being CS (OS) No.
2443/1993 for specific performance, which is pending adjudication before this
Court. By an order dated September 06, 1999 both the aforesaid suits have been
consolidated for the purpose of recording evidence, which is going on before the
learned Local Commissioner. It is stated that by detailed judgment and order dated
July 02, 2010 the ex-parte ad-interim order of injunction passed in Sh. Arun Batra‟s
suit was vacated by the learned Single Judge, which had been upheld in appeal and
before the Supreme Court. It is the case of the Caravan, in an effort to buy peace in
litigation pending for more than 20 years, it purchased 2/3rd share in the suit
property by executing Registered Agreements to Sell and other related documents
with the legal heirs of Late Smt. Shanti Devi on May 25, 2011 and Smt. Pushpa
Devi on May 30, 2011. It is stated by Caravan that it paid additional consideration
of Rs.20 Crores to the aforesaid parties once again in an effort to buy peace and to
put to an end to the protracted litigation. It is the case of the appellant Caravan that
pursuant to this Smt. Pushpa Devi who was in sole and exclusive occupation of the
entire ground floor of the suit property since 1994 handed over possession of the
same to Caravan. It is stated that the entire first floor and terrace are in the peaceful
occupation of the legal heirs of Late Smt. Bimla Devi since 1994 and continues
undisturbed. It is stated by Caravan that this fact of handing over of the possession
was noted by the learned Single Judge of this Court in its order dated June 02, 2011
when it was brought to the notice of the Court by counsel for Smt. Pushpa Devi.
4. That Caravan has given reference to certain other litigations concerning the
suit property. The same are as under:-
(a) Suit for partition [ CS (OS) No. 690/2006] filed by the legal heirs of Late Smt.
Shanti Devi who were never in occupation of the suit property (respondents 12 to
18) seeking partition and possession of the suit property. The aforesaid suit was
withdrawn pursuant to the further Agreements to Sell executed by and between
Caravan & respondents 12 to 18 on May 30, 2011. It is stated that no other party
sought transposition as plaintiff in the suit to seek to continue the said partition suit.
(b) On July 04, 2011 Sh. Rakesh Aggarwal (Son of Late Smt. Bimla Devi and
respondent No.3 herein) filed a suit No. 1587/2011 seeking permanent and
mandatory injunction against Caravan from entering the suit premises or from
changing or altering the nature of the suit property in any manner. Caravan was the
sole defendant in the said suit. The suit was predicated on Section 44 of the
Transfer of Property Act. The ad-interim relief granted on July 04, 2011 was that
the ground floor of the suit property in possession of Caravan would not be
alienated and that the renovation being carried on would be at Caravan‟s risk and
cost. It is represented by Caravan that repeated applications were filed in the said
suit for preventing renovation on the ground floor; seeking restraint order against
Caravan from using and occupying the ground floor; seeking restraint order against
Caravan from entering the suit premises. Further no interim reliefs were granted in
favour of the respondent No.3 herein who is the plaintiff in the said suit; Caravan
has carried out the renovation and the ground floor is in its occupation.
(c) CS (OS) 1561/1994 titled Master Yash & Anr v. Rakesh Kumar Aggarwal &
Ors in which the order, of which contempt is alleged was passed, is a suit filed by
the grand sons of late Smt. Bimla Devi for partition alleging that 1/3 rd share of Late
Smt. Bimla Devi was ancestral property and claiming their respective 1/27th share
each in her 1/3rd share. Late Smt. Bimla Devi has filed a written statement opposing
the averments in the plaint and asserting the property to be hers alone. It is stated by
Caravan, that at the time of filing of the Suit, no application for interim orders was
filed. Caravan was not impleaded as party. On May 6, 1997, an application was
filed for interim reliefs apprehending that they would be dispossessed from the first
floor. However, status quo order was granted on May 7, 1997 in respect of the
entire suit property. On the demise of Smt. Bimla Devi on January 15, 2004 an
application was filed seeking substitution of Smt. Bimla Devi‟s legal heirs viz. her
sons and daughters in her place. It is stated by Caravan that an amendment
application being IA No. 3710/2005 was filed seeking leave to amend the earlier
application for substitution on the ground that a Will of Late Smt. Bimla Devi had
been discovered under which certain additional legal heirs of the deceased namely
respondents 1 and 2 and Sh. Ashish Aggarwal (son of respondent No.3) were sought
to be impleaded since they were the only legal heirs who were entitled to her estate.
Accordingly, testamentary capacity of Late Smt. Bimla Devi in respect of 1/3rd share
in the suit property was admitted. It is stated that the said amendment application
was, thereafter withdrawn on September 16, 2005 with liberty but no application
was filed subsequently. It is stated, that in the connected suit (1587/2011) it has
been recorded in the order dated January 7, 2013 that the alleged will is not in
possession of the legal heirs of Late Smt. Bimla Devi. It is also stated that IA No.
4108/1997 was filed by respondent No.17 (one of the legal heirs of late Smt. Shanti
Devi who was never in possession of any part of the suit property) and the status
quo order dated May 7, 1997 was modified on September 16, 2005 to permit the
said respondent to deal with his undivided share in the suit property. Status quo was
directed to be maintained in respect of possession of parties meaning thereby that
the respondent No.17, who was admittedly never in possession of the suit property
would not take any steps to dispossess the heirs of late Smt. Bimla Devi from the
first floor and Smt. Pushpa Devi from the ground floor of the suit property while
dealing with his undivided share. It is stated that similar application being IA No.
3084/2006 was filed by respondents 12 to 16 and 18 which was dismissed by order
dated August 22, 2007. In 2009, Smt. Pushpa Devi filed an application being IA
No. 12948/2008 inter-alia seeking discharge, vacation, modification of the status
quo order dated May 07, 1997 as modified on September 16, 2005 as a whole;
seeking discharge and vacation of the status quo orders dated May 07, 1997 and
September 16, 2005 insofar as it relates to her 1/3rd undivided share. Vide order
dated November 24, 2009 the learned Single Judge passed the following order:-
" I.A. No.12948/2008
This application has been made under Order 39 Rule 4 CPC on
behalf of defendant No.8 with a prayer that the court should
modify the status quo order dated 7th May, 1997 which was
earlier modified on 16th September, 2005. It is submitted by
learned counsel for defendant No.8 that defendant No.8 was
entitled to undivided 1/3rd share in the property. This court vide
order dated 16th September, 2005 had given liberty to defendant
No.12, who was similarly placed that defendant No.12 shall be
entitled to exercise his rights and deal with his undivided share in
his property. He states that defendant No.8 is also entitled for the
same liberty. Learned counsel for the plaintiffs states that as far as
defendant No.8 is concerned, her 1/3rd share in the property is not
disputed and counsel for the plaintiffs has no objection in case, the
similar order as in respect of defendant No.12 has been passed is
also passed in favour of defendant No.8. In view of this
submission, the application for modifying the status quo order
dated 16th September, 2005 is allowed and it is observed that
defendant No.8 shall be entitled to exercise her rights and deal
with her undivided 1/3rd share in the property. The application
stands disposed of.
C.S. (OS) No.1561/1994
The plaintiffs have filed this suit claiming 1/3rd undivided share in
the property No.42- 44, Sunder Nagar, New Delhi. The plaintiffs
are grandsons of Smt. Bimla Devi, defendant No.3 (deceased) and
defendant Nos.1 and 2 are father and uncle of the plaintiffs
respectively. Smt. Bimla Devi had entered into a sale agreement
along with co-owners of the property with defendant No.14. The
other defendants are defendants in respect of other two co-owners
of the property, namely, Smt. Pushpa Devi and Smt. Shanti Devi
(since deceased). They are defendant Nos.8 and 9 to 13. There is
no dispute in respect of undivided 1/3rd share, one of LRs of Smt.
Shanti Devi or undivided share of Smt. Pushpa Devi. The dispute
is only in respect of 1/3rd undivided share of late Smt. Bimla Devi.
I, therefore, consider that all the defendants, who inherit property
from Smt. Pushpa Devi or Smt. Shanti Devi, being performa
defendants, are at liberty to deal with their respective undivided
share of the property. The court had passed similar order in
respect of defendant No.12 earlier and defendant No.8 today. I
consider that the other defendants similarly placed cannot be
treated differently and the earlier order of dismissing the
application made by the defendants is, therefore, recalled.
However, since the property is not divided so far, the defendants
shall remain entitled to undivided share and they may deal only
with undivided share."
5. It is the stand of the appellant Caravan that after failing to secure any orders in
CS (OS) No. 1587/2011 and after a lapse of about 18 months from the date when
Caravan took physical possession of the ground floor of the suit property in
December 2012, two applications were filed first being IA 22681/2012 seeking
interim reliefs directing the appellant Caravan to hand over possession of the ground
floor of the suit property. According to the appellant, no notice has been issued on
the said application; and the second being IA No. 22682/2012 under Order 39 Rule
2A of CPC stating that Smt. Pushpa Devi and Caravan were in contempt of the
orders dated September 16, 2005 and November 24, 2009, wherein the impugned
order was passed. The facts noted in the appeal filed by Smt. Pushpa Devi
[FAO(OS) 386/2014)] are identical to the facts noted above, in the appeal filed by
Caravan and the same are not repeated for the sake of brevity. However, this Court
would like to note the stand of the appellant Smt. Pushpa Devi in her appeal
[FAO(OS) 386/2014)], wherein she has submitted that the order dated April 30,
1992 in CS(OS) 1578/1992 filed by Arun Batra was not against her. It is also her
case that in the suit being CS(OS) No. 1561/1994 by the plaintiffs, grandsons of late
Smt. Bimla Devi, is only with respect to 1/3 share of Late Smt. Bimla Devi and the
other defendants were impleaded merely as performa defendants. It is her case that
the application for discharging/vacating/modifying/status quo order, being IA No.
12948/2008 was allowed without any restrictions. In other words, she was
permitted to exercise her rights and deal with her 1/3 share in the property. From
the legal opinion sought by her, it was confirmed that she can deal with her share
and part with possession.
SUBMISSIONS:-
6. Mr. Arvind Nigam, learned Senior Counsel appearing for Caravan would
submit that by order dated November 24, 2009 the aforesaid application (being IA
No. 12948/2008) and by necessary implication, its prayers were allowed and
consequently, Smt. Pushpa Devi was fully entitled to deal with and part with
possession of the ground floor of the suit property. The said order, both in the
application and in the suit, did not place any bar or fetters on the mode or manner of
dealing with the share of Smt. Pushpa Devi or the heirs of late Smt. Shanti Devi,
since they were recognized and held to be proforma parties. He would rely upon the
judgment of this Court in Banne Singh v. State of Rajasthan, Criminal Appeal No.
1254/2008 decided on January 15, 2014 to contend that the word „to deal‟ implies
that the offender has certain concern with the property either by keeping it in his
possession, or parting with the ownership, or possession of the property through any
of the modes of transfer of property. According to him, the order dated May 07,
1997 was modified by order dated September 16, 2005 in respect of defendant
No.12-Surinder Kumar (respondent No.17 herein), a party, who was admittedly
never in possession of the suit property. The relief of modification of status quo
order, sought by the brothers of defendant No.12-Surinder Kumar (respondent
No.17 herein) was denied. He lay stress on the fact that Smt. Pushpa Devi (the
appellant in FAO (OS) No. 386/2014) sought full reliefs in her application filed
under Order 39 Rule 4 CPC and her said application was allowed as a whole vide
order dated November 24, 2009 i.e in terms of all prayers therein.
7. According to Mr. Nigam, the contention of the respondents 1 & 2 (plaintiffs in
the suit) that other reliefs were given up or/and abandoned is wholly speculative.
The order dated November 24, 2009 does not record any abandonment and/or any
giving up of any prayers. He states that the said order was not passed on
concession. According to him, it is a settled principle of law that order has to be
read as it is without any addition or subtraction. He would also contest the
submission made on behalf of respondents 1 and 2 that the order dated November
24, 2009 is to be interpreted on the basis of order dated September 16, 2005 as
erroneous for the reasons that operative part of the order dated November 24, 2009
places no fetters on Smt. Pushpa Devi (defendant No.8 in the suit and appellant in
FAO (OS) No. 386/2014) regarding transfer of possession and order dated
September 16, 2005 stood subsumed in the order dated November 24, 2009 and
cannot be interpreted to control the scope or width of the order dated November 24,
2009 in any manner whatsoever. He states that a reading of order dated September
16, 2005 must also be made in the context of the fact that defendant No.12-Surinder
Kumar (respondent No.17 herein) was never in possession of any part of the suit
premises. He was only one of the legal heirs of Late Smt. Shanti Devi and he alone
could not have transferred the entire share of Late Smt. Shanti Devi. His brothers
being defendants 9 to 11 and 13 (respondent No.12 to 16 and 18) were declined
relief on August 22, 2007. According to him, the direction in the order dated
September 16, 2005 is in two parts; (a) status quo was qua possession of the parties
to the suit property; (b) defendant No.12-Surinder Kumar (respondent No.17 herein)
will be entitled to deal with his undivided share but no fetters were put on him.
8. Mr. Nigam would also state that the order dated November 24, 2009 was
passed for modification of order dated May 7, 1997 and order dated September 16,
2005 and also for recall of order dated August 22, 2007. The order has to be read in
reference to the prayers made in IA No. 12948/2008. According to him, vide order
dated November 24, 2009 the application of Smt. Pushpa Devi was allowed without
any condition or restriction. It is the submission of Mr. Arvind Nigam that the order
dated November 24, 2009 clarifies and crystallizes the position (i) that plaintiff‟s
claim is only with regard to 1/3rd share of their grandmother-late Smt. Bimla Devi;
(2) there is no dispute with respect of 1/3rd share each of Shanti Devi Group and
Smt. Pushpa Devi; (3) defendants who inherited from late Smt. Shanti Devi and
Smt. Pushpa Devi are proforma defendants and are at liberty to deal with their
respective undivided share in the suit property, which categorically means that the
lis remains only inter-se legal heirs of late Smt. Bimla Devi alone; (4) only
condition is that since the suit property was not divided, defendants shall be entitled
to undivided share only. Logic for this last caveat was that partition should be
required to be made by metes and bounds and parties cannot claim preferential
rights in any specified area. Caravan was never a party defendant in CS (OS) No.
1561/1994 when the orders dated May 7, 1997 and September 16, 2005 were
passed. Caravan was only impleaded as a party defendant by order dated May 13,
2008. He would rely upon provisions of Section 21(1) of Limitation Act, 1963 to
contend that the Caravan having been added in the suit on May 13, 2008 deemed to
have been instituted on that date only and not on any earlier date. Hence,
applicability of the earlier orders dated May 07, 1997 or September 16, 2005 cannot
be read into the order dated November 24, 2009 for purposes of contempt as alleged
by respondents 1 and 2.
9. He also states, there is an unexplained delay and laches of one year and six
months in filing of the application, which would not be maintainable under the
Contempt of Courts Act. The families of the two sons of late Smt. Bimla Devi
including the respondents 1 and 2 (plaintiffs in the suit) never occupied any part of
the ground floor of suit property. Their possession of the first floor and terrace
remained undisturbed since 1994. The said floor is a separate and independent unit
having its own entry/exit point, driveway, servant quarters etc. Even though
Caravan is the rightful owner of 2/3rd of the suit property it is at best occupying only
1/3rd of the same. He would state that Section 44 of the Transfer of Property Act has
no application. The suit property was never nor is the dwelling house of an
undivided family. One branch of the family i.e late Smt. Shanti Devi or her legal
heirs never resided in the property. In any event this plea has been raised only in
CS(OS) 1587/2011 and is not relevant in the context of order under challenge in the
present appeal and further Caravan has been restrained from transferring the ground
floor of the suit property in CS(OS) 1587/2011. Caravan is ready and willing to
undertake to be bound by the decision in the said suit and upon division of the
property (if permissible) accept any part of the suit property as its share. He would
also urge that where more than one interpretation of an order is possible, the party
acting bona fide on its own interpretation of the order cannot be held guilty of
willful disobedience. In this regard, he would refer to the judgments of the Supreme
Court reported as AIR 1961 SC 221 State of Bihar v. Sonabati Kumari and (2008)
14 SCC 392 Sushila Raje Holkar v. Anil Kak. That apart, he also relied upon the
judgment of the Supreme Court reported as (2008) 15 SCC 529 Tamil Mercantile
Bank v. Tamilnad Bank to contend that willful disobedience needs to be proved
beyond reasonable doubt.
10. It is the submission of Mr. Nigam, at the highest and without prejudice, the
order dated November 24, 2009 is capable of two interpretations. As such,
Caravan‟s actions cannot be said to be deliberate and willful in any manner. It is not
such a case where the learned Single Judge could have held the appellant guilty of
contempt. In this regard, he refers to the judgment reported as (2009) 5 SCC 417
All India Anna Dravida Munnetra v. L.K. Tripathi.
11. Mr. Nigam would vehemently argue that the plaintiffs have instituted the suit
only to frustrate the suit of specific performance filed by the Caravan and the
application under Order 39 Rule 2 A of CPC was filed by the plaintiffs with ulterior
motives. According to him, it is an admitted fact that legal heirs of late Smt. Bimla
Devi i.e her sons and grandsons and their families are all residing together in the
first floor of the suit property even as on date. Also the plaintiffs as minor did not
institute the suit through their father or mother or legal guardian but instituted the
suit through their aunt. He states that the dispute inter-se as alleged by plaintiff
among Smt. Bimla Devi Group is only a camaflouge to overcome the admitted
documents i.e Agreements to Sell dated November 15, 1991 and November 16,
1992 whereby, their father i.e Rakesh Kumar stood as witness and signed the same.
It was the endevour of Mr. Nigam to canvass that the factum of the transactions and
handing over of possession was brought to knowledge of learned Single Judge on
June 02, 2011 by Mr. J.P. Gupta, Advocate counsel for Smt. Pushpa Devi, who was
also counsel for the plaintiff (respondents 1 and 2 herein). He states, the ulterior
motive is apparent from the fact despite late Smt. Bimla Devi categorically stating
in her written statement that the suit property is a self acquired property of hers but
even respondents 1 and 2 herein in application No. 3710/2015 as well as their father
Rakesh Aggarwal, both have set up a case that the suit property was self acquired
property of late Smt. Bimla Devi. It is only to delay the suit for specific
performance filed by Caravan, they have been taking contradictory stands in
different proceedings. He also states, that their stand that late Smt. Bimla Devi has
left a Registered Will dated July 30, 2003 is without basis, neither the plaintiff
master Yash nor father Rakesh Aggarwal have produced the said Will despite
directions of the Court. Mr. Nigam would also urge, it was incumbent upon the
learned Single Judge to decide the application being IA No. 15875/2013 under
Order VII Rule 11 CPC relating to issue of maintainability of suit first as the same
goes to the root of the matter. The reliance upon the order dated August 1, 2013
passed in suit No. 1578/1992 by the counsel for respondents 3 and 4 to buttress his
point that it was agreed by parties that all pending applications shall be taken up for
hearing at the time of final arguments is completely misleading. The said order does
not relate to suit in question i.e CS(OS) 1561/1994. He also states sufficient time
was not given to put forth the arguments.
12. On the aspect of Section 44 of the Transfer of Property Act is concerned, he
states the said submission is not germane to the present appeal. The families of the
three co-owners do not constitute an undivided family in law. In any event, the suit
property was never the „dwelling house‟ of all the three co-owners and their families
have never ever resided together in the suit property. Even the families of two of
the three co-owners namely late Smt. Bimla Devi and Smt. Pushpa Devi lived in the
suit property, there was no common kitchen or prayer room. In the last, it is his
submission that the present appeals need to be allowed and the impugned order
dated August 4, 2014 needs to be set aside.
13. Mr. Deepak Sahni, learned counsel appearing for appellant Smt. Pushpa Devi
in FAO(OS) 386/2014, would submit that the appellant has not violated any order of
status quo passed by the learned Single Judge vide order dated November 24, 2009.
He states, that the appellant was given complete liberty to deal with her 1/3rd
undivided share in the suit property. According to him, an application filed by the
appellant in the suit, being I.A. No. 12948/2008 under Order 39 Rule 4 read with
Sections 94 & 151 CPC was allowed by the learned Single Judge, as a whole,
without attaching any fetters on her 1/3rd share in the suit property. He would state,
that in the reply filed by the plaintiffs (respondents 1 and 2) to I.A. No. 12948/2008,
they have admitted that order dated May 7, 1997 has been merged in order dated
September 16, 2005. In the same manner, after passing of order dated November
24, 2009, the previous orders have merged in the said order dated November 24,
2009. He states, the learned Single Judge vide order dated November 24, 2009,
clarifies the fact that the dispute is only with regard 1/3 rd share of late Smt. Bimla
Devi. According to him, Smt. Shanti Devi Group and the appellant herein, were
given liberty to deal with their respective undivided shares in the suit property. The
Court duly considered the fact that the appellant is a proforma defendant, against
whom no relief was actually prayed. The factum of the said liberty, so granted by
the Court, was also duly recorded in the Agreement to Sell dated May 25, 2011. He
would state, since inception, the appellant had been in the possession of the ground
floor of the suit property and Bimla Devi Group had been in the possession of the
first floor and terrace / second floor. The possession of the plaintiffs (respondents 1
and 2) is not disturbed since 1994 till today, as the entire property as a whole has
separate drive way / gate / ingress / egress / kitchen / worship place etc. for the
ground floor occupants whereby, it is ensured that no disturbance is caused and / or
no privacy is infringed by / of the occupants of first floor, i.e., Bimla Devi Group.
He would state, the appellant, who is presently 88 years old, only settled her
disputes with Caravan to put an end to protracted litigations, which were / are
pending since 1992, to have peace in rest of her life. She did not want this protracted
litigation to be passed on to her children and grand-children. It is his submission
that the Appellant herein executed sale documents with Caravan in the year 2011, in
continuation of the previous admitted Agreements to Sell dated November 15, 1991
and November 16, 1992, by getting enhanced consideration. Caravan merely
stepped into the shoes of Smt. Pushpa Devi pursuant to an out of court compromise,
which in fact was nothing but honoring the previous Agreements dated November
15, 1992 and November 16, 1992 entered into by all co-owners on one hand
(including Late Smt. Bimla Devi) and Caravan on the other hand. In the end, it is his
submission that no prejudice has been caused to Bimla Devi Group with the said
transfer of the ground floor and no third party to the lis was inducted in the property.
14. Mr. Dayan Krishnan, learned Senior Counsel appearing for respondents 1 and
2 would justify the impugned order, inasmuch as the appellants in these appeals
have violated the injunction order whereby, the parties were restrained from parting
with possession of ground floor of property bearing No. 42-44, Sunder Nagar, New
Delhi inasmuch as the possession of the ground floor of the suit property was parted
with by Smt. Pushpa Devi in favour of the appellant. It is his submission that the
property is an undivided residential/dwelling house being used for the residence of
only the family members/relatives of the respondents 1 and 2 until the Caravan
entered into illegal possession of the ground floor of the undivided dwelling units in
violation of the injunction order and also in violation of Section 44 of the Transfer
of Property Act. He states that the partition is yet to take place. Until such time the
property is not divided and partitioned by metes and bounds, the family members as
co-owners have a right on each and every square inch of entire property bearing No.
42-44, Sunder Nagar, New Delhi. He would refer to the application being IA No.
4108/1997 and order dated May 07, 1997 passed by the Court. He would also refer
to the application filed by the defendant No.12 in the suit i.e the respondent No.17
in FAO (OS) No. 385/2014 being IA No. 4696/2005 seeking modification of order
dated May 07, 1997. According to him, vide order dated September 16, 2005, the
injunction order dated May 07, 1997 was modified to a limited extent on the
application of the respondent No. 17 herein. According to him, the respondent
No.17 was not in physical possession of the suit property on the date of the said
order, despite this Court was clear and categorical in its direction that the status quo
will be maintained in respect of possession of the parties to property. There is no
doubt or ambiguity or any confusion on the order passed by this Court as the order
is absolutely clear and speaks for itself. He states that the order dated September 16,
2005 has two parts. The part 1 includes "that the status quo will be maintained in
respect of possession of the parties to property bearing No.42-44, Sunder Nagar,
New Delhi". Part 2 includes "however defendant No.12 shall be entitled to
exercise his rights and deal with his undivided share in the suit property". It is the
submission of Mr. Krishnan that the expression „deal‟ has to be read in the context
of undivided share in the property, which can be sold but without parting with the
possession of the property. According to him, this is consistent with Section 44 of
the Transfer of Property Act. He would refer to Section 44 of the said Act. He also
states, that if the submission made by Mr. Nigam that the expression „deal‟ also
includes the power and right to part with possession then the earlier part of the order
becomes meaningless and amounts to rendering otiose/negating the said direction
directing the parties to maintain status quo of possession. According to him, the
only correct and fair interpretation of the order dated September 16, 2005 is that the
Court permitted the applicant to deal with his undivided share i.e to sell the same.
However, not only the applicant but all the parties were directed to maintain status
quo of the possession. He would rely upon the judgment of this Court in the case
reported as (2006) 91 DRJ 26 Kuldip Gandotra v. S.N. Endlay and Anr to contend
the expression „however‟ has to be given a meaning. He states that the parties were
to maintain status quo qua possession of the suit property, which is clear from the
language of the order. He also states, no appeal was filed against the order. Smt.
Pushpa Devi was a party to the proceedings in the suit at the time of passing of the
order and was bound by the same. He also states, the fact that Smt. Pushpa Devi
had prayed for vacation of interim orders dated May 07, 1997 and September 16,
2005, as a whole, clearly shows that Smt. Pushpa Devi was aware that there was an
interim order operating against the parties in respect of the suit property, which
included the injunction restraining the parties from parting with possession. Thus,
clearly the parties were aware and conscious that the first interim order dated May
07, 1997 was complete and absolute, inasmuch as the parties had to maintain both
status quo of title as well as possession of the property. Vide order dated September
16, 2005, the earlier order dated May 07, 1997 was modified to the limited extent
that one of the parties had been permitted to deal with his undivided share.
However, all the parties have been restrained, injuncted from parting with
possession of the property. Hence, there was no doubt or ambiguity in the order or
in the mind of the parties that defendant No.12 could deal with his undivided share
in the property and injunction order was existing, which restrained/prevented all the
parties including defendant No.12 from parting with the possession of the suit
property. It is for this reason, appellant Smt. Pushpa Devi made a categorical prayer
in IA No. 12948/2008 for discharge, vacation, modification of the status quo order
dated May 07, 1997, which has been later modified vide order dated September 16,
2005 as a whole.
15. According to Mr. Krishnan, there was no reason for the appellant Smt. Pushpa
Devi to include the word „as a whole‟ if there was no injunction order operating
against parting with possession. Thus, all the parties were aware that there was an
injunction order operating against all the parties to the suit restraining them from
parting with possession of the property and also title except defendant No.12, who
was permitted to sell his undivided share but without parting with possession. He
has drawn our attention to the order dated November 24, 2009, both in IA
No.12948/2008 and in CS(OS) No. 1561/1994. It is his submission that from the
order dated November 24, 2009, it is clear that the appellant Smt. Pushpa Devi had
asked for larger reliefs in the application. But at the time of the arguments had
prayed for, being granted the same liberty as has been granted to defendant No.12
(respondent No.17 herein) in the order dated September 16, 2005, to which the
counsel for the respondents 1 and 2 had conveyed his no objection to the appellant
Smt. Pushpa Devi being granted the same liberty. This was done primarily because
there was no dispute qua the undivided share. Accordingly, the appellant Smt.
Pushpa Devi was allowed to deal with her 1/3rd undivided share in the property.
There was no adjudication on the merits. The order was passed on the basis of the
concession statement made by the learned counsel for the parties. In the suit also,
the learned Single Judge has made it clear that the order being passed for the
appellant Smt. Pushpa Devi was the same order, as was passed in favour of the
defendant No.12. There is no doubt/ambiguity in the order. Mr. Krishnan further
states that Caravan was a party to the suit at the time of the passing of the order
dated November 24, 2009 and was duly represented at the hearing on the said date.
Therefore, the appellant cannot feign ignorance of the said order dated November
24, 2009 or the proceedings that transpired on that date. According to him, there is
no dispute that the appellant Smt. Pushpa Devi had parted with the possession of the
ground floor of the property bearing No. 42-44, Sunder Nagar, New Delhi despite
the existence of the injunction order passed by this Court restraining the parties from
parting with possession, which makes it apparent that the appellant and Smt. Pushpa
Devi committed contempt of the Court by violating the injunction order.
16. Mr. Krishnan would state there is another aspect of the matter, inasmuch as the
appellant Smt. Pushpa Devi was the owner of only 1/3rd undivided share in the
property and at best, she was entitled to part with possession of 1/3 rd of her share in
the property under order dated November 24, 2009, whereas she has transferred
possession of the entire ground floor of the property to the appellant Caravan, which
is in excess of her 1/3rd share. Therefore, the appellant Smt. Pushpa Devi and
Caravan had clearly violated the injunction order. If there was any doubt or
ambiguity in the minds of the parties, it was incumbent upon them to approach this
Court, seeking clarification, rather than to act in a manner, which suited their
commercial convenience which was in violation of the injunction order passed by
this Court. He would rely upon the judgment reported as (2009) 2 SCC 166 K.A.
Ansari and Anr. v. Indian Airlines Ltd. in support of his contention that if there
was any doubt with regard to the interpretation of an order then the appellants were
within their rights to approach the Court seeking clarification. He states, the very
fact that lengthy arguments had been advanced by the appellants in their appeal on
the merits would, itself show there was no confusion but now a case is sought to be
built up to avoid the consequences of violation of the injunction order on the ground
that there was some confusion. He would rely upon the judgment reported as AIR
1961 SC 221 State of Bihar v. Sonabati Kumari. Alternatively, he would argue,
even if there was some confusion, that is a factor to be considered only at the time
of sentence. Therefore, the appellants were rightly directed to deliver the possession
of the ground floor of the property in question. This cannot be avoided, denied or
escaped by the appellants herein. He would also rely upon the judgments in the case
reported as AIR 2004 SC 4419 State of Bihar and Ors v. Rajendra Singh and Anr.,
AIR 2006 SC 909 Union of India and Ors v. Subedar Devassy. In the last, it is his
submission that the respondents 1 and 2, had agreed that 1/3 rd undivided share canbe
sold without parting with possession because insofar as title of the said defendants
in the suit was concerned there was no dispute. However, for possession the
property is yet to be partitioned. Therefore, the injunction order restraining parting
with possession was never modified/vacated. He would also contend that the
present appeals being intra-court appeals, on a finding of a fact, unless the Appellate
Bench reaches a conclusion that a finding of the learned Single Judge is perverse, it
should not disturb the same merely because another view is possible. In this regard,
he would rely upon the judgment reported as (2016) 1 Scale 320 The Management
of Narendra & Company Private Limited v. The Workmen of Narendra &
Company. He seeks the dismissal of the appeals. He states, his submissions, be read
as submissions to the appeal filed by Smt. Pushpa Devi as well.
17. Mr. Manish Vashisht learned counsel appearing for the respondents 3 and 4 in
the appeals would submit that the plea of Mr. Nigam that the learned Single Judge,
instead of deciding an application under Order 7 Rule 11 CPC, decided the
application under Order 39 Rule 2A CPC, which is inappropriate is concerned, the
application under Order 39 Rule 2A was filed by the respondents 1 and 2 in the year
2012 and the application under Order 7 Rule 11 CPC by the appellant Caravan was
filed as an afterthought only in the month of December, 2013. He states, that the
appellant Caravan was impleaded as a defendant in the suit vide order dated May
13, 2008 and it is highly surprising that no such application for dismissal of the suit
was filed for a period of five and a half years. The issue of non maintainability has
no bearing on the disobedience of the orders passed by the Court even though,
ultimately it is found that such a suit was not maintainable.
18. With regard to the submission of Mr. Nigam that the learned Single Judge did
not decide the application bearing CCP No. 70/1994 against the appellant Smt.
Pushpa Devi and respondents 3 to 4, which was filed by the appellant in CS (OS)
No. 2443/1993 and thus committed an error by taking up an application, which was
filed under Order 39 Rule 2A CPC is concerned, the application, which was filed
was never listed before the learned Single Judge when the arguments on the
application under Order 39 Rule 2A were heard and the matter was reserved for
orders. He states, to the contrary vide order dated August 01, 2013 passed in CS
(OS) No. 2443/1993 the counsel for the appellant Caravan stated that all the
remaining pending applications may be taken up for hearing at the time of final
arguments of that suit filed by the appellant Caravan. Therefore, on the face of it,
this argument on the part of the appellant is fallacious.
19. Insofar as the plea of Mr. Nigam that the appellant Caravan was under the
impression that there was no embargo on Smt. Pushpa Devi to transfer the
possession of the property as the order dated November 24, 2009 did not specify or
put any restrictions on the transfer of possession is concerned, Mr. Vashisht had
submitted the following:-
(i) The Court was adjudicating upon an undivided residential property viz a viz its
co-owners and a stranger.
(ii) The Court from time to time in order to protect the intrinsic character and
nature of the undivided property passed various following orders:
a. Order dated October 27, 1993 passed in CS (OS) No. 2443/1993;
b. Order dated August 25, 1995 confirming the above order.
c. Order dated May 07, 1997 in the present suit;
d. Order dated September 16, 2005;
e. Order dated October 12, 2006 passed in CS (OS) No. 690/2006;
f. Order dated August 22, 2007;
g. Order dated November 24, 2009.
(iii) All the parties to the suit were fully aware that injunction orders restricted
them from transferring the possession of the property to any person outside the
family. There was no occasion for any of the parties to have misunderstood the
import of the injunction orders or to have arrived at a different understanding or
reasoning relating to the aforesaid orders which were passed.
(iv) That a reading of the documents dated May 25, 2011 and May 30, 2011
establishes the express knowledge of the appellant Caravan about CS (OS) No.
690/2006. In this suit an order dated October 12, 2006 was passed to the following
effect:
"The counsel for defendant states that he has no objection if the said
application is allowed subject to the status quo order with regard to the title,
possession and state of construction regarding the suit property being
equally applicable to the plaintiff. In the circumstances, parties are directed
to maintain status quo with regard to the title, possession and the state of
construction regarding the suit premises aforesaid till the final disposal of
the suit. To this extent, orders dated April 22, 2006 are modified."
(v) The orders which were passed in CS (OS) No. 690/2006 and CS (OS) No.
2443/1993 as stated supra were also passed in the present suit from which the
Appeal has arisen.
(vi) The order dated September 16, 2005 was passed in the present suit whereby
the Court, while permitting the defendant No.12 to exercise his rights and deal with
his undivided share without parting with the possession of any portion of the
property also directed all the parties to maintain status quo as qua possession of the
property. The relevant portion of the order is reproduced:
"In view of the statement made by the counsel for the plaintiffs, the order
dated May 07, 1997 is modified to the extent that the status quo will be
maintained in respect of possession of the parties to property No. 42-44,
Sunder Nagar, New Delhi."
(vii) The other appellant Smt. Pushpa Devi did not impugn or challenge this order
before the Appellate Court. However, after 3 years Pushpa Devi filed IA No.
12948/2008 under Order 39 Rule 4 CPC for vacation of the order dated May 07,
1997 and September 16, 2005.
(viii) The present appellant had already become the party when Smt. Pushpa Devi
filed the IA No. 12948/2008. The said application was never opposed by the
appellant herein, even though, admittedly as on that day, the appellant and Pushpa
Devi were adversaries and fighting tooth and nail.
(ix) During the arguments Smt. Pushpa Devi restricted her prayer raising the plea
of parity as recorded in the order dated September 16, 2005. The counsel for the
respondents 1 and 2 also conceded when the plea of parity was pressed and
accordingly order dated November 24, 2009 was passed permitting Smt. Pushpa
Devi to exercise her rights in the undivided property as were accorded to the other
defendant No.12. The following order was passed on November 24, 2009:
"It is submitted by learned counsel for defendant No.8 that defendant No.8 was
entitled to undivided 1/3rd share in the property. This court vide order dated
16th September, 2005 had given liberty to defendant No.12, who was similarly
placed that defendant No.12 shall be entitled to exercise his rights and deal
with his undivided share in his property. He states that defendant No.8 is also
entitled for the same liberty.
Learned counsel for the plaintiffs states that as far as defendant No.8 is
concerned, her 1/3rd share in the property is not disputed and counsel for the
plaintiffs has no objection in case, the similar order as in respect of defendant
No.12 has been passed is also passed in favour of defendant No.8. In view of
this submission, the application for modifying the status quo order dated 16th
September, 2005 is allowed and it is observed that defendant No.8 shall be
entitled to exercise her rights and deal with her undivided 1/3rd share in the
property."
(x) The mandate of the order dated November 24, 2009 so as to maintain the
sanctity of possession is further clear from the reading of the latter portion of the
order, wherein while concluding, the learned Single Judge further observed that
"since the property is not divided so far, the defendant shall remain entitled to
undivided share and they may deal only with undivided share."
(xi) No application seeking any clarification or alleging any misunderstanding
of the order dated November 24, 2009 was filed by the appellant or even by
Smt. Pushpa Devi.
(xii) The aforesaid chain of sequence of facts categorically and without any iota of
doubt establish that at no point of time since 1993 till date, the Courts had allowed
any co-owner of the property to transfer the possession or to change the nature of
the property by inducting any person outside the family or a stranger in it.
(xiii) The order dated November 24, 2009 was further clear to the effect that the co-
sharers can deal with their undivided share only as the property was not partitioned
by metes and bounds but cannot transfer the possession.
(xiv) Therefore, there could not have been any scope for any party to the suit to
allege that the orders dated September 16, 2005 or November 24, 2009 were
incapable of communicating the clear mandate and restriction imposed by the Court
while keeping in view the nature of the property which was an undivided one.
20. On the plea of Mr. Arvind Nigam that the appellant Caravan was not a party in
the suit till May 13, 2008, it was not aware of the orders which were passed and the
orders were not applicable to it, it is the contention of Mr. Vashisht that the order
dated November 24, 2009 was passed in the presence of the counsel for the
appellant in which clearly the order dated September 16, 2005 was discussed.
According to him, till November 24, 2009 the appellant was an adversary to the
other co-sharers and the remaining parties to the suit and since 1993 the endeavour
of the appellant was to secure the status quo order in respect of the suit property so
that the possession and title could not be transferred or the nature of the property
could not be changed till the decision of its suit of specific performance. Therefore,
when the order dated November 24, 2009 was passed, the appellant was not affected
by the same and had no reasons of any grouse against the observations which were
passed by the learned Single Judge directing the parties not to deal with the
possession or transfer of possession. The prayer allowed was only with respect to a
permission to deal with the undivided share. No appeal or any modification of the
order dated November 24, 2009 was sought by the appellant or Smt. Pushpa Devi.
21. Even on the plea of Mr. Nigam that the order dated November 24, 2009 was
very ambiguous and was confusing one, Mr. Vashisht would submit that the same
was clear and unambiguous. Nothing precluded the appellant Caravan from filing
an appropriate application before the Court seeking clarification on the presumed
ambiguity. He states, a party who pleads ambiguity has to act above board by
approaching the Court which has passed such an order and to seek necessary
clarification. The plea that the application under Order 39 Rule 2A CPC was filed
as an afterthought, when the respondents 3 and 4 failed to get any injunction orders
in their suit bearing CS (OS) No. 1587/2011 is concerned, Mr. Vashisht would
submit that the CS(OS) No. 1587/2011 is an independent remedy which has been
filed in terms of Section 44 of Transfer of Property Act, 1882 and the cause of
action urged in the said suit is also supported and approved by numerous judicial
pronouncement including the judgment of the Supreme Court in the case reported as
(1990) 2 SCC 117 Dorab Cawasji Warden and the judgment of the Calcutta High
Court, Orissa High Court and Allahabad High Court. He states, that an injunction
order dated July 04, 2011 was also passed in favour of the respondents 3 and 4.
Nevertheless, the said suit and the impugned order has no connection at all and both
are independent of each other.
22. Even on the plea of application under Order 39 Rule 2A CPC is barred by
limitation, Mr. Vashisht would submit that there is no limitation prescribed to file an
application under Order 39 Rule 2A and further the disobedience being a recurring
cause, no party can raise immunity from punishment on the ground of delay.
According to Mr. Manish Vashisht, even the plea on behalf of the appellant that
appellant has paid Rs.20 Crores to the two co-sharers and that the appellant has an
inherent right to occupy the ground floor of the property is misconceived, inasmuch
as the law does not permit the purchaser of an undivided share to intrude inside a
dwelling house without seeking relief of partition. The appellant ought to have
impleaded himself as a plaintiff in CS (OS) No. 690/2006 after purchasing the
undivided rights of two co-sharers and prayed for a decree of partition by metes and
bounds. No party to a lis can be permitted to even argue equity when such a party is
guilty of disobeying the orders of the Court. On the plea of Mr. Nigam that the
contesting respondents on the first floor are in possession of peaceful, separate and
in excess of their share is a misconceived argument, inasmuch as when a share in an
undivided house is purchased, no portion of the same can be said to be a divided or
a separate one. The different exit and entry is created by the appellant after the
order dated July 04, 2011 passed in CS(OS) No. 1587/2011. It was held that any
renovation work on the ground floor would be at the risk and cost of appellant
Caravan. Mr. Vashisht would submit that the respondents are not sitting in any
excessive share, because till such time property is partitioned, they have an
indisputable right to enjoy every inch of the property. Mr. Vashisht would submit
that the reliance placed on the report of the Local Commissioner by the appellant to
suggest the occupation of different floors by the co-owners is misplaced in view of
the report itself as a reading of the Local Commissioner‟s report would show that it
records the name of the nine persons, who were in physical occupation of the entire
property. The argument on behalf of the appellant that the interpretation as sought
to be given by the appellant is the only right argument is also misconceived and
contemptuous. He states, that under similar circumstances, the learned Single Judge
has taken a consistent view. He would rely upon the judgment reported as (2015)
147 DRJ 563 titled Vera Ruth Rego Consalvis v. Maninder Pal Singh, against
which appeal was filed before the Division Bench, which was also dismissed by the
Division Bench as reported in 2015 (DLT SOFT) 158 (DB) Vinay Chhabra &
Others v. Vera Ruth Rego Gonsalvis.
23. Mr. Manish Vashisht would also submit that the appellant has not controverted
in the rejoinder, the submissions made on behalf of respondents 3 and 4, inasmuch
as the appellant was purchasing undivided shares in the residential house, which is
apparent from the reading of its own documents. The Supreme Court in the case
reported as (2009) 7 SCC 444 Ramdas v. Sita Bai & Others and in (2009) 10 SCC
654 Gajara Vishnu v. Prakash Nansaheb has held that an undivided share of a co-
sharer may be a subject matter of sale but possession cannot be handed over to the
vendee unless the property is partitioned by metes and bounds. In the end, it is his
submission that the appellant cannot be permitted to perpetuate the illegality, which
according to him is apparent from the submissions made by him as reflected above.
He would rely upon the judgment in the case of All Bengal Excise Licensee‟s
Association v. Raghabendra Singh & Others (2007) 11 SCC 374 and (1999) 7 SCC
569 Kapildeo Prasad Sah v. State of Bihar. He prays that the appeal filed is liable
to be dismissed.
24. Insofar as the appeal filed by Smt. Pushpa Devi is concerned, it is the
submission of Mr. Vashisht that the same need to be dismissed in view of the
admission of the appellant Smt. Pushpa Devi at page 40 (paragraph 27) of the
appeal, wherein she has pleaded as under:-
"that legal opinion was sought by the appellant before dealing with her share
in the said property and the appellant was clearly advised by her counsels
that there is absolutely no bar in the appellant dealing with her share and/or
exercising her rights qua her share including transferring of possession of
the ground floor."
25. He would also state that the appeal is misconceived in view of the following
admitted facts:-
"i. The litigation ensued qua the subject matter i.e property No.42-44, Sunder
Nagar, New Delhi relating to the parties to the present appeal in the year 1993.
ii. That subject property admittedly is an undivided residential house. No actual
physical partition by metes and bounds has taken place till date.
iii. That various interim orders to protect transfer of title and possession were
passed by this Court in its ordinary civil jurisdiction in respect of the subject
property.
iv. That the appellant Smt. Pushpa Devi was impleaded as a defendant in the
following suits/proceedings:-
a. CS(OS) No. 2443/1993 titled "Carvan Commercial Company Limited v.
Pushpa Devi & Ors". (as defendant No.1).
b. CS(OS) No.1561/1994 "Master Yashaswi Aggarwal & Another v. Rakesh
Aggarwal & Others" Pushpa Devi was impleaded as defendant No.8.
c. CS(OS) No. 690/2006 titled "Mahender Kumar Gupta & Ors v. Pushpa Devi &
Ors. A suit for partition in which Pushpa Devi was Defendant No.1.
d. Suit bearing No.1578/1992 titled "Arun Batra v. Bimla Devi & Ors. Pushpa
Devi" was defendant No.7 in the said suit. (For the purposes of deciding the
present appeal this suit has no relevance).
26. According to him, the submissions made by learned counsel for Pushpa Devi
are misconceived and untenable in view of the following:-
(i) That this Court while adjudicating upon the suit was seized with an issue
of partition qua a residential house among its co-owners.
(ii) To protect the intrinsic character and nature of the undivided property
various following orders were passed by this Court:
a. 07.05.1997, @ 199
b. 16.09.2005, @ 213-214
c. 22.08.2007, @ 216-218
d. 24.11.2009, @ 233-236.
(iii) That all the parties to the suit were also aware of the fact that they
were restricted by the aforesaid interim injunction orders which was passed
from transferring the possession to any third party. There was no occasion
for any of the parties to have misunderstood the import of the orders or to
have arrived at a different understanding or reasoning relating to the
aforesaid four orders which were passed and modified.
(iv) That besides above, the appellant Smt. Pushpa Devi was also
contesting two different suits as a defendant before this Court wherein she
and the other co-defendants were restrained from alienating, transferring or
parting with possession in respect of the suit property.
(v) In CS(OS) No. 2443 of 1993 she was restrained along with other co-
defendants to deal with the property and to maintain status quo. This order
was confirmed on 25.08.1995 and is in operation till date.
(vi) That in another suit for Partition CS(OS) No. 690 of 2006 an Order
dated 12.10.2006 was passed in CS(OS) No. 690/2006 where the appellant
PUshpa Devi was defendant No.1 to the following effect:
"The counsel for defendant states that he has no objection if the said
application is allowed subject to the status quo order with regard to the
title, possession and state of construction regarding the suit property being
equally applicable to the plaintiff. In the circumstances, parties are
directed to maintain status quo with regard to the title, possession and the
state of construction regarding the suit premises aforesaid till the final
disposal of the suit. To this extent, orders dated 22.4.2006 are modified."
(vii) The orders which were passed in CS(OS) No. 690 of 2006 and CS
(OS) No.2443 of 1993 as stated supra were also passed in the present suit
from which the Appeal had arisen.
(viii) The order dated 16.9.2005 was passed in the present suit whereby
the Hon‟ble Court, while permitting the defendant No.12 to exercise his
rights and deal with his undivided share without parting with the possession
of any portion of the property also directed all the parties to maintain status
quo as qua possession of the property. The relevant portion of the order is
reproduced:
"In view of the statement made by the counsel for the plaintiffs, the order
dated 7.5.1997 is modified to the extent that the status quo will be
maintained in respect of possession of the parties to property No.42-44,
Sunder Nagar, New Delhi."
(ix) The appellant Smt. Pushpa Devi did not impugn or challenge this
order before the Appellate Court. However, after 3 years Appellant filed IA
No. 12948 of 2008 under Order 39 Rule 4 CPC for vacation of the order
dated 7.5.1997 and 16.9.2005.
(x) That during the arguments the Appellant restricted her prayer raising the
plea of parity as recorded in the order dated 16.9.2005. The counsel for the
respondents 1 and 2 also conceded when the plea of parity was pressed and
accordingly order dated 24.11.2009 was passed permitting the Appellant to
exercise her rights in the undivided property as were accorded to the other
Defendant No.12. The following order was passed on 24.11.2009:
"It is submitted by learned counsel for defendant No.8 that defendant No.8
was entitled to undivided 1/3rd share in the property. This court vide order
dated 16th September, 2005 had given liberty to defendant No.12, who was
similarly placed that defendant No.12 shall be entitled to exercise his rights
and deal with his undivided share in his property. He states that defendant
No.8 is also entitled for the same liberty.
Learned counsel for the plaintiffs states that as far as defendant No.8 is
concerned, her 1/3rd share in the property is not disputed and counsel for
the Plaintiffs has no objection in case, the similar order as in respect of
defendant No.12 has been passed is also passed in favour of defendant No.8.
In view of this submission, the application for modifying the status quo order
dated 16th September, 2005 is allowed and it is observed that defendant
No.8 shall be entitled to exercise her rights and deal with her undivided
1/3rd share in the property.
(xi) That the mandate of the order dated 24.11.2009 so as to maintain
the sancity of possession is further clear from the reading of the latter
portion of the order @ page 235, wherein while concluding, the learned
Single Judge further observed that "since the property is not divided so far,
the defendant shall remain entitled to undivided share and they may deal
only with undivided share."
(xii) The aforesaid chain of sequence of facts categorically and without
any iota of doubt establish that at no point of time since 1993 till date, the
Courts had allowed any party to transfer the possession or to change the
nature of the property by inducting any third party or a stranger in it.
(xiii) Instead of purging the contempt and correcting the illegality, the
present appellant has the audacity to raise frivolous objections and
arguments by taking shelter of her old age. This is a calculated move by her
at the behest of another appellant Carvan Commercial Company Limited,
which has intruded inside the property despite injunction orders.
(xiv) That the arguments of the appellant are also misconceived for the
simple reason that throughout the orders dated September 16, 2005 and
November 24, 2009 reminded everyone that the orders were being passed in
respect of an undivided property.
(xv) That the actions of the Appellant were calculated and motivated so
as to overreach the process of law. The action is also in defiance of law. An
erring party cannot raise the plea of ignorance of law to his/her defence. It is
well settled law that a co-sharer cannot deliver possession of any portion of
an undivided property to any stranger or an outsider. Section 44 of the
Transfer Property Act, 1882 prohibits the same.
(xvi) The Hon‟ble Supreme Court in (2009) 7 SCC 444 titled "Ramdas
v. Sita Bai & Other" and in (2009) 10 SCC 654 titled "Gajara Vishnu v.
Prakash Nansaheb" has categorically held that an undivided share of a co-
sharer may be a subject matter of sale but possession cannot be handed over
to the vendee unless the property is partitioned by metes and bounds.
(xvii) As stated above it is an admitted position that the suit property is
an undivided one and therefore she could not have transferred the possession
to Caravan Commercial Property Ltd because of Orders dated 7.5.1997,
16.9.2005 and 24.11.2009.
(xviii) Although the orders dated 7.5.1997, 16.9.2005 and 24.11.2009 are
very clear, unambiguous and constantly reminded all the parties to the suit to
only deal with their undivided share of the property and not to part with
possession of the property, yet the appellant cannot be heard to contend that
even by the usage of the term undivided in the orders, she was under an
impression that she had been permitted to transfer the possession of the
property to a stranger.
(xix) This would be preposterous on her part even to allege that the term
"undivided" would mean divided and includes the transfer of possession."
He prays that the appeal be dismissed.
27. Having heard the learned counsel for the parties, to understand and decide the
issue whether the learned Single Judge was justified in holding that the appellants
herein were guilty of committing Contempt of Court by disobeying the status quo
order dated May 07, 1997, subsequently modified by orders dated September 16,
2005 and November 24, 2009, it is necessary to note the said orders. For the said
purpose, we reproduce the orders as under:
" 07.05.1997
XXXXX XXXXX XXXXX
Notice returnable on 10th November, 1997.
Learned counsel for the Defendants No.1 and 2 and Defendant No.2
accept notice.
Notice be issue only to the remaining defendants.
The parties will maintain status quo as of today in respect of property
NO.42-44, Sunder Nagar, Delhi till the next date.
In the meantime, pleadings be completed."
"16.09.2005
XXXXX XXXXX XXXXX
CS(OS) No.1561/1994
IA No.4108/1997 and 4696/2005
The counsel for the plaintiffs state that his clients will have no objection in
case the defendant No.12 exercises his rights and deals with his undivided
share without parting with the possession of any portion of the property. In
view of the statement made by the counsel for the plaintiffs the order dated
7.5.1997 is modified to the extent that the status quo will be maintained in
respect of possession of the parties to property No.42-44, Sunder Nagar,
New Delhi. However, defendant No.12 shall be entitled to exercise his
rights and deal with his undivided share in the property. With these
observations, the applications IA Nos. 4108/1997 and 4696/2005 are
disposed of."
"24.11.2009
XXXXX XXXXX XXXXX
I.A. No.12948/2008
This application has been made under Order 39 Rule 4 CPC on behalf of
defendant No.8 with a prayer that the court should modify the status quo
order dated 7th May, 1997 which was earlier modified on 16th September,
2005. It is submitted by learned counsel for defendant No.8 that defendant
No.8 was entitled to undivided 1/3rd share in the property. This court vide
order dated 16th September, 2005 had given liberty to defendant No.12,
who was similarly placed that defendant No.12 shall be entitled to exercise
his rights and deal with his undivided share in his property. He states that
defendant No.8 is also entitled for the same liberty. Learned counsel for the
plaintiffs states that as far as defendant No.8 is concerned, her 1/3rd share
in the property is not disputed and counsel for the plaintiffs has no
objection in case, the similar order as in respect of defendant No.12 has
been passed is also passed in favour of defendant No.8.
In view of this submission, the application for modifying the status quo
order dated 16th September, 2005 is allowed and it is observed that
defendant No.8 shall be entitled to exercise her rights and deal with her
undivided 1/3rd share in the property.
The application stands disposed of.
C.S. (OS) No.1561/1994
The plaintiffs have filed this suit claiming 1/3rd undivided share in the
property No.42- 44, Sunder Nagar, New Delhi. The plaintiffs are
grandsons of Smt. Bimla Devi, defendant No.3 (deceased) and defendant
Nos.1 and 2 are father and uncle of the plaintiffs respectively. Smt. Bimla
Devi had entered into a sale agreement along with co-owners of the
property with defendant No.14. The other defendants are defendants in
respect of other two co-owners of the property, namely, Smt. Pushpa Devi
and Smt. Shanti Devi (since deceased). They are defendant Nos.8 and 9 to
13. There is no dispute in respect of undivided 1/3rd share, one of LRs of
Smt. Shanti Devi or undivided share of Smt. Pushpa Devi. The dispute is
only in respect of 1/3rd undivided share of late Smt. Bimla Devi.
I, therefore, consider that all the defendants, who inherit property from
Smt. Pushpa Devi or Smt. Shanti Devi, being performa defendants, are at
liberty to deal with their respective undivided share of the property. The
court had passed similar order in respect of defendant No.12 earlier and
defendant No.8 today. I consider that the other defendants similarly placed
cannot be treated differently and the earlier order of dismissing the
application made by the defendants is, therefore, recalled. However, since
the property is not divided so far, the defendants shall remain entitled to
undivided share and they may deal only with undivided share."
28. That apart, we also note the conclusion of the learned Single Judge in the
impugned order holding the appellants guilty of contempt of court was primarily on
the following findings:-
"12. There is no dispute about the proposition of law as has been
urged by the learned Sr. Counsel for Defendants No. 4 to 8 and Defendant
No. 14 that when an order of the Court is ambiguous and is reasonably
capable of more than one interpretation, proceedings for contempt should
not be entertained. Can it be said that the order dated 07.05.1997 read
with subsequent orders dated 16.09.2005 and 24.11.2009 was capable of
two interpretations? The learned Sr. Counsel for Defendants No. 8 and
Defendant No. 14 have stressed that there is no specific mention in the
order dated 24.11.2009 that Defendant No. 8 will not be entitled to transfer
possession of the suit property while dealing with the property and thus,
even if order dated 16.09.2005 is taken into consideration, at the most, it
will show that the order dated 24.11.2009 was capable of two
interpretations and thus, no action of contempt can be taken against
Defendants No. 8 and 14.
13. I have already extracted earlier the orders dated 16.09.2005 and
24.11.2009. Order dated 16.09.2005 categorically records no objection of
the Plaintiffs in respect of the right of Defendant No. 12 to deal with his
undivided share without parting with the possession of any portion of the
property. The order dated 07.05.1997 was modified by order dated
16.09.2005 to the extent that Defendant No. 12 may deal in his share but
status quo was to be maintained in respect of possession of property
bearing no. 42-44, Sunder Nagar by the parties. By a subsequent
application I.A. No. 12948/ 2008, Defendant No. 8 wanted discharge of the
status quo order dated 07.05.1997, which was granted to Defendant No. 8
recording that 1/3rd share of Defendant No. 8 is not disputed and the
counsel for the Plaintiffs has no objection in case the order as passed in
respect of Defendant No. 12 is passed in respect of Defendant No. 8. Thus,
everybody was aware that concession which had been given to Defendant
No. 8 was similar to the one granted to Defendant No. 12 by the order
dated 16.09.2005. Hence, the contention raised on behalf of Defendant No.
8 and Defendant No. 14 that the order dated 24.11.2009 with regard to
dealing with the property with or without possession was ambiguous and
capable of two interpretations is unfounded. It may be mentioned that in
the proceedings under Order 39 Rule 2A CPC, the Court is simply to see
whether there is disobedience of the order passed by the Court. It is not
permissible for the Court to examine the correctness of the earlier decision
which is stated to be violated. (See State of Bihar & Ors. v. Rajendra Singh
& Anr., AIR 2004 SC 4419 and Union of India & Ors. v. Subedar Devassy
PV, AIR 2006 SC 909). The judgments in Tamilnad Merchantile Bank and
Sushila Raje Holkar (supra) and K.K. Puri (supra) relied upon by the
learned Sr. Counsel for Defendant No. 14 and Defendant No. 8 will not
come to the rescue of the Defendants as there was no ambiguity in the
order. The contention that Defendant No. 8 was in possession of only
ground floor of which possession was delivered to Defendant No. 14 and
the Plaintiffs and Defendants No. 1 to 3 were in possession of more than
1/3rd share in the property and thus, there will not be any contempt is
noted to be rejected for two reasons. First, as stated earlier, the order as
modified by the subsequent orders was clear that possession of the property
is not to be disturbed. Second, even if it is assumed that Plaintiffs and
Defendants No. 1 to 3 were in possession of about 50% of the built-up
portion, Defendant No. 8 was also in possession of the entire ground floor
which must be more than 1/3rd share of Defendant No. 8. Thus, even if
Defendant No. 8 had been permitted to part with the possession of the
1/3rd portion of the property belonging to him (though it was not done),
she could not have delivered the possession of entire ground floor to
Defendant No. 14 which as per own showing of Defendant No. 8 about
50% of the property."
29. The order dated November 24, 2009 was primarily passed both in IA No.
12948/2008 and CS(OS) No. 1561/1994. The prayer in IA No. 12948/2008 under
Order 39 Rule 4 CPC was as under:-
"a. Discharge, vacate, modify the status quo order dated 07.05.1997 which
has later been modified vide orders dated 16.09.2005, as a whole;
b. Discharge and vacate the status quo order dated 07.05.1997 and
16.09.2005 in so far as it relates to one-third (1/3rd) undivided share of the
applicant/defendant No.8 or,
c. In any case the operation of the status quo order may kindly be restricted
in respect of the one-third (1/3rd) undivided share of Late Smt. Bimla Devi
i.e defendant No.3 only;
d. Pass any other and further order(s) as this Hon‟ble Court may deem fit
and proper in the facts and circumstances of the present case."
30. The prayers made in the said IA were inter-alia for seeking discharge, vacation,
modification of the status quo order dated May 07, 1997 as modified on September
16, 2005 as a whole, insofar as it relates to the appellant Smt. Pushpa Devi‟s 1/3rd
undivided share. When the said application was listed on November 24, 2009, it
was represented by the counsel for Smt. Pushpa Devi that Smt. Pushpa Devi being
similarly placed as defendant No.12, shall be entitled to the same liberty. A perusal
of order dated September 16, 2005 would reveal that the order dated May 07, 1997
was modified to the extent, status quo was required to be maintained with respect to
the possession of the parties to property no.42-44, Sunder Nagar, New Delhi.
However, the defendant No.12 (respondent No.17, in FAO(OS) 385/2014) shall be
entitled to exercise his rights and deal with his undivided share in the property. The
learned Single Judge, on November 24, 2009 accepted the statement made on behalf
of the plaintiffs in the suit, respondents 1 and 2 herein that he has no objection in
case similar order, as in respect of defendant No.12 be passed in favour of Smt.
Pushpa Devi. The Court made it clear that Smt. Pushpa Devi shall be entitled to
exercise her rights and deal with her undivided 1/3rd share in the property. We agree
with the submission made by Mr. Dayan Krishnan that the relief, as prayed for in IA
No.12948/2008 was seeking discharge, vacation, modification of status quo order
dated May 07, 1997 as modified on September 16, 2005 as a whole would surely
depict that the appellant Smt. Pushpa Devi was conscious of the fact that she could
not have transferred the possession of the ground floor of the property in question,
otherwise, she would have only sought a simplicitor prayer that the liberty, as
granted to defendant No.12, be granted to her. In fact, during the hearing on
November 24, 2009, it is noted that the counsel for the appellant Smt. Pushpa Devi
has stated that his client is entitled to the same liberty as was given to the defendant
No.12 to exercise her rights and deal with her "undivided" share in the property.
That apart, we note, the Court while passing an order in the suit, has stated as
under:-
"However, since the property is not divided so far, the defendants shall
remain entitled to undivided share and they may deal only with
undivided share."
31. The aforesaid observation underlines the fact that there is no dispute with
regard to the undivided share of Smt. Pushpa Devi and Late Smt. Shanti Devi (her
legal heirs) and they are required to deal with the undivided share only. That apart,
there is no express order of the learned Single Judge on November 24, 2009
granting liberty to the appellant Smt. Pushpa Devi to part with the possession of her
undivided share. In fact, this appears to be the understanding of the Smt. Pushpa
Devi, as is clear from para 27, of her appeal, wherein she has referred to a legal
opinion sought by her, wherein she was advised, that there is no bar for her to deal
with her share including transferring the possession. In other words, on legal advise
she has transferred the possession, which pre supposes her understanding that order
dated November 24, 2009 may not have directed the transfer of possession. The
plea of Mr. Nigam, that order dated November 24, 2009 does not bar or put fetters
on Smt. Pushpa Devi and the legal heirs of Smt. Shanti Devi for transferring the
possession being performa parties is concerned, the same is a selective reading of
the order. The said submission is primarily because, the Court in the earlier
sentence records "The dispute is only in respect of 1/3rd undivided share of late Smt.
Bimla Devi". But if the order is read in totality, the last line, wherein, the Court has
said "however since the property is not divided so far, the defendants shall remain
entitled to undivided share and they may deal with undivided share" would become
relevant. Surely in a suit for partition, every legal heir has an undivided share
without demarcation. The Court was conscious of the fact that demarcation by
metes and bound is yet to take place. Precisely for this reason it did not direct,
transfer of possession and it could not have, as that would have made the suit
infructuous. The reliance placed by Mr. Vashist on the judgment of the Supreme
Court in the case of Ramdas v. Sita Bai and ors (supra) and Gajara Vishnu
(supra), wherein the Supreme Court has held that undivided share of a co-sharer
may be subject matter of sale but possession cannot be handed over to the vendee
(purchaser) unless the property is partitioned, is appealing. The plea of Mr. Arvind
Nigam that by necessary implication, the prayers in the IA were allowed and Smt.
Pushpa Devi was entitled to deal with and part with possession of the ground floor
of the suit property, is also without any merit.
32. The reliance placed by Mr. Nigam on the judgment of this Court in the case of
Banne Singh v. State of Rajasthan (supra), to contend that the word "to deal"
implies that the offender has certain concern with the property by keeping it, in his
possession or parting with ownership or possession of the property through any of
the modes of transfer of property is concerned, the same would not be of any help to
the appellant Caravan, inasmuch it is the principle found out upon a reading of a
judgment as a whole in the light of the questions before the Court that forms the
ratio. In the said case, the High Court was dealing with various provisions of the
IPC including Section 413 IPC, which relates to an offence of habitually dealing in
stolen property. It was in that context, the High Court has culled out a difference
between "retaining" and "dealing" and held "to deal" implies that the offender has
certain concern with the property either by keeping it in his possession, or parting
with the ownership, or possession of the property through any of the modes of
transfer of property. It was in the context of Section 413, the High Court has held
the verb "to deal" is broader in its scope than the verb "retain". Whereas, in the case
in hand, the word "deal" has been referred to by the learned Single Judge in the
order dated September 16, 2005 and also in the order dated November 24, 2009 in
the context, to deal with "undivided share" in the property without parting with the
possession. The said judgment has no application. Further it may be stated that, it
is a conceded position that Surinder Kumar, defendant No.12, was not in possession
of suit property, and could not have part with the possession. If that be so, the parity
granted to Smt. Pushpa Devi, must be read to mean, that she could not have part
with possession. The plea that defendant No.12-Surinder Kumar was never in
possession of any part of the suit premises and as such, no fetters were put on him,
would not be tenable, inasmuch as on a reading of order dated September 16, 2005,
it was clearly directed that "status quo will be maintained in respect of possession of
the parties to property No.42-44, Sunder Nagar, New Delhi" itself clarifies that the
parties could not have parted with the possession. We agree with the submission of
Mr. Krishnan that if Mr. Nigam‟s interpretation of the word "deal" is accepted then
this direction of status quo shall be render otiose. Hence, the plea of Mr. Nigam that
Surinder Kumar was never in the physical occupation of the property is
inconsequential/irrelevant. It would be irrelevant for these proceedings, the factum
that modification of status quo order was sought by the brothers of Surinder Kumar
was denied. The plea of Mr. Nigam, that Smt. Pushpa Devi had sought full reliefs
in her application filed under order 39 Rule 4 CPC and her application was allowed
as a whole vide order dated November 24, 2009 and not on concession is concerned,
the same is untenable, as is seen from prayers made and order passed, it is clear that
the counsel for Smt. Pushpa Devi restricted the prayer, seeking parity qua defendant
No.12 in view of order dated September 16, 2005. Surely, such a plea suggest
concession, as he had not pressed the relief as sought for in the application. The
plea of Mr. Nigam, that the order dated November 24, 2009, places not fetters on
Smt. Pushpa Devi regarding transfer of possession and the order dated September
16, 2005 stood subsumed in the order dated November 24, 2009 and cannot be
interpreted to control the scope or width of the order dated November 24, 2009, is
without merit.
33. Insofar as the plea of limitation is concerned, there is no dispute that IA
22682/2012 was filed under Order 39 Rule 2A CPC only without any reference to or
under the provisions of the Contempt of Courts Act. The limitation becomes
relevant in view of the provisions of Section 20 of the Contempt of Courts Act and
not when an application under Order 39 Rule 2A CPC is filed. Even otherwise,
when the allegation is of violation of an interim order of the Court, the application
would not be hit by delay and laches. We may note in this regard the judgment of
the Gujarat High Court in the case of Bharatbhai Jivrajbhai v. Chaganbhai
Samabhai and Anr. passed in Miscellaneous Civil Application No. 1751/2011
decided on December 14, 2012, wherein Gujarat High Court, on an identical plea of
limitation raised by the respondents 2, 4 and 5 therein and has rejected such a plea
and observed that merely because the proceedings under Order 39 Rule 2A of the
CPC for breach of injunction are considered to be akin to the proceedings under the
Contempt of Courts Act, the period of limitation, as prescribed under Section 20 of
the Contempt of Courts Act would not be applicable. The Court also held that the
Supreme Court in the case of Pallav Sheth v. Custodian and ors (2001) 7 SCC 549
has not held that the period of limitation prescribed under Section 20 of the
Contempt of Courts Act would be applicable in a proceeding for breach of
injunction under Order 39 Rule 2A CPC. We are in agreement with such a
conclusion. Suffice to state, no period of limitation is prescribed for initiating
proceedings for breach of injunction under Order 39 Rule 2A CPC, which is
provided under Section 20 of the Contempt of Courts Act. It must be held that so
long as the breach of injunction continues, the aggrieved party in whose favour there
is an injunction, can initiate the proceedings for breach of injunction under Order 39
Rule 2A of the CPC. That apart, it must also be held that Order 39 Rule 2A CPC
being a special provision inserted in the Code, shall prevail over the general law of
contempt contained in the Contempt of Courts Act. Further, the submission of Mr.
Arvind Nigam that the provisions of Section 21(1) of Limitation Act, 1963, to
contend that Caravan, having been added in the suit on May 13, 2008 deemed to
have been instituted on that date only and not earlier date and the order dated May
07, 1997 or September 16, 2005 cannot be read into order dated November 24, 2009
for the purposes of contempt is concerned, the same is also without any merit.
There is no dispute that order dated November 24, 2009 was passed after May 13,
2008 when Caravan was impleaded as a party in the suit. Further, on November 24,
2009 when the order was passed by the Court, Caravan was duly represented by the
counsel. The said order explicitly records the statement made on behalf of appellant
Smt. Pushpa Devi herein, defendant No.8 in the suit that Smt. Pushpa Devi
defendant No.8 is also entitled to similar liberty as was given to defendant No.12
that is, in the order dated September 16, 2005. On such submission, the counsel for
Caravan could have stated before the Court, that Smt. Pushpa Devi is also entitled to
part with the possession of the ground floor of the suit property. No such
submission was made and the said order dated November 24, 2009 must be
understood that the appellant Smt. Pushpa Devi was entitled to deal with the
property in the same manner as defendant No.12 and nothing more.
34. Insofar as the submission made by Mr. Nigam that the order dated November
24, 2009 is susceptible to two interpretations is concerned, the same is also without
any merit. We have already reproduced the orders passed by the learned Single
Judge from time to time in the suit. The orders are very clear and explicit. There is
nothing in the order dated November 24, 2009, which suggests that the prayers as
made in IA 12948/2008 have been granted nor there is any express order giving
liberty to the appellant Smt. Pushpa Devi to part with the possession of the property.
The learned Single Judge was right in rejecting this plea in paras 12 and 13, which
we have already reproduced above.
35. The reliance placed by Mr. Nigam on the judgments of the Supreme Court in
the case of State of Bihar v. Sonabati Kumari (supra), Sushila Raje Holkar
(supra) and Tamil Mercantile Bank (supra) are not applicable in the facts of this
case, as there is no ambiguity in the order and the same is capable of only one
interpretation and not more than one interpretation, as sought to be contended by
Mr. Nigam. The prayers made in the application suggest that it is the understanding
of Smt. Pushpa Devi also that there is a bar on her to part with the possession of the
ground floor of the property in question, which surely would make the action as a
deliberate and willful.
36. Insofar as the plea of Mr. Nigam that the legal heirs of late Smt. Bimla Devi
have occupied more than 2/3rd of the suit property, much above the share of late
Smt. Bimla Devi is also without merit, as the nature of property being undivided,
and not partitioned, the shares are not determined. In any case, such an argument is
not tenable when the allegation is of violation of orders passed by the Court.
37. Insofar as the plea of Mr. Nigam that two sons of late Smt. Bimla Devi
including the respondents 1 and 2 never occupied any part of the ground floor of the
suit property and their possession on the first floor and terrace remained undisturbed
since 1994 with a separate entry/exit point is also without any merit, as the suit is for
partition may be inter-se between the legal heirs of late Smt. Bimla Devi but there is
no partition by metes and bounds between the legal heirs of late Smt. Bimla Devi,
Smt. Pushpa Devi and the legal heirs of Smt. Shanti Devi. So, it was not conclusive
that Smt. Pushpa Devi had a clear title of the ground floor so as to part with the
possession of the same. The right was only an undivided right and occupation of the
first floor cannot be construed to mean that Smt. Pushpa Devi has a right to part
with possession of the ground floor.
38. The plea of Mr. Nigam, that Caravan has been restrained from transferring the
ground floor of the suit property in CS(OS) 1587/2011 and the appellant is ready
and willing to undertake to be bound by the decision of the said suit and upon
division of the property accept any part of the suit property as it share also does not
appeal us, as we are in this case concerned with the violation of orders passed in suit
being CS(OS) No.1561/1994 and it is the legality of the impugned order of the
learned Single Judge, which needs to be adjudicated and nothing more. An order
passed in another suit being CS(OS) No. 1587/2011 against M/s Caravan restraining
it from transferring the ground floor would have no bearing on these appeals. The
said order in CS(OS) No. 1587/2011 is to the effect that M/s Caravan would not
create third party rights by transferring it further, which has no bearing on the fact
whether Smt. Pushpa Devi could have parted with the possession of the ground
floor.
39. The plea of Mr. Nigam that the plaintiff instituted the suit only in order to
frustrate the suit of specific performance filed by M/s Caravan and the application
under Order 39 Rule 2A CPC was filed by the plaintiff with ulterior motives is
inconsequential when the Court below and this Court is concerned with violation of
the orders passed in the suit.
40. Similarly, the plea of Mr. Nigam that the plaintiff has instituted the suit to
overcome the Agreements to Sell dated November 15, 1991 and November 16, 1992
is also inconsequential, which has no bearing on the plea of the respondents 1 and 2
alleging violation of order dated November 24, 2009.
41. Further, the plea of Mr. Nigam that it was incumbent on the learned Single
Judge to decide application being IA No. 15875/2013 under Order 7 Rule 11 CPC
relating to the issue of maintainability of the suit first as the same goes to the root of
the matter also does not appeal us, when the issue relates to non-compliance of
orders in the suit where the said IA has been filed. The non consideration of the IA
is no ground for violating orders already passed. The plea that sufficient time was
not granted to put forth the arguments before the learned Single Judge is also not
tenable, as we find that the appellants had in fact violated/overreached the orders.
Further while hearing the appeals, this Court has granted sufficient time to the
learned counsel for the parties to argue the appeals and as the final conclusion
would determine, the appeals are without any merit, impugned order cannot be
faulted on that ground.
42. On the submission relatable to Section 44 of the Transfer of Property Act,
suffice to state the possession of the ground floor could not have been parted with,
in violation of orders passed.
43. Insofar as the submission made on behalf of appellant Smt. Pushpa Devi by
Mr. Deepak Sahni that the appellant being of old age, decided to settle the matter
with M/s Caravan and agreed to sell her 1/3 rd undivided share in the property to
Caravan with delivery of possession of the ground floor on the advise of her counsel
is not convincing. No argument has been made during the appeal neither by the
counsel of the Caravan or the appellant herein that they are ready to reverse the
possession. Her right to sell her 1/3rd share is not disputed/contested but she could
not have parted with possession in view of order dated November 24, 2009, which
was passed on her asking whereby she was permitted to deal with her undivided
share. The contention that she had an absolute right including delivery/transfer of
possession of the ground floor is not acceptable as the mandate of the orders
including order dated November 24, 2009 was to maintain the sanctity of
possession.
44. Insofar as the judgments referred to by Mr. Nigam are concerned, in Sahdev @
Sahdo Singh (supra), is concerned, in the said case in para 16 and para 20, on
which reliance was placed, the Supreme Court held that punishment under the law
of contempt is called for when the lapse is deliberate and action cannot be taken in
an unclear case and the charge has to be proved beyond reasonable doubt. In the
case in hand, there is no doubt that the Court had not permitted Smt. Pushpa Devi to
part with possession of the ground floor. In fact, it was also the understanding of
Smt. Pushpa Devi that there is no such order. It is her case that on legal advise, the
possession was parted with. No attempt was made, at least not brought to our notice
to give/take back the possession of the ground floor, surely suggest the
contumacious conduct and act, which is not bonafide. The judgment has no
applicability in the facts of this case.
45. Insofar as the judgment in the case of State of Bihar v. Usha Devi (supra) is
concerned, the same has no applicability to the facts of this case. More so, when
prejudice has been caused to the plaintiffs (respondents 1 and 2) with the parting
with possession of the ground floor when partition has not been effected between
the legal heirs of Late Bimla Devi, Smt. Pushpa Devi and the legal heirs of Shanti
Devi.
46. In view of our discussion above, we are of the view that the appeals filed are
devoid of any merit. The same are dismissed. Time to deliver/for taking possession
of the entire ground floor of the suit property by Caravan and Smt. Pushpa Devi is
extended by eight weeks from today.
47. As the Learned Single Judge has observed that the matter of awarding
punishment will be dependant on the compliance of impugned order, which period,
we have extended by eight weeks, list before the learned Single Judge on May 15,
2017 for compliance.
CM No. 14139/2014 in FAO(OS) 385/2014 (for stay)
CM No. 14143/2014 in FAO(OS) 386/2014(for stay)
Dismissed as infructuous.
V. KAMESWAR RAO, J
INDIRA BANERJEE, J
MARCH 08, 2017/ak
