Pamela Manmohan Singh vs Harnam Kaur (Deceased Through ...
2017 Latest Caselaw 1573 Del

           *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       D ATE OF DECISION : 24 TH M ARCH , 2017

+                              CS(OS) 206/2016
       PAMELA MANMOHAN SINGH                ..... Plaintiff
                   Through: Mr. Mahendra Rana, Adv.
                           Versus
       HARNAM KAUR (DECEASED THROUGH LEGAL
       REPRESENTATIVES) & ORS.              ..... Defendants
                   Through: Mr. Praveen Kumar, Adv. for D-1 to 3.

CORAM:-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

CONT. CAS NO. 113/1993, CONT. CAS NO. 45/2007 & CONT. CAS NO.
46/2007

1.

The plaintiff instituted this suit i) for declaration that the sale deeds,

all dated 6th December, 1988, executed by the defendant no.4 Sh.

K.V. Kohli in favour of defendants no.1 to 3 viz. Mrs. Harnam Kaur,

Mrs. Mahinder Kaur and Mr. Jagjit Singh, do not confer any title in

the defendants no.1 to 3 and the plaintiff is the owner of 2/3rd of,

property No.6-B, Jangpura, Mathura Road, New Delhi; ii) in the

alternative for partition declaring that the plaintiff has 2/3rd share in

the property No. 6-B, Jangpura, Mathura Road, New Delhi and of

division of the property by metes and bounds and putting the plaintiff

in possession of her portion of the property.

2. Vide order dated 14th March, 1990, while issuing summons of the

suit, the defendants no.1 to 3 were restrained from transferring,

alienating or parting with possession of property No.6-B, Jangpura,

Mathura Road, New Delhi, wholly or in part, in any manner and from

raising any further construction on the said property.

3. Contempt Case No.113/1993 has been filed averring disobedience by

the defendants no.1 to 3 of the aforesaid order dated 14th March, 1990.

It is pleaded i) that upon the defendants no.1 to 3, in disobedience of

the order dated 14th March, 1990, continuing with the construction,

the plaintiff applied for appointment of a Commissioner to visit the

premises and vide order dated 9th February, 1993, a Court

Commissioner was appointed to visit the premises and to report about

the construction in existence; ii) that the Court Commissioner visited

the property on 1st March, 1993 and filed a report dated 22nd April,

1993 detailing the existing construction in the property; iii) that

though as per the report of the Court Commissioner there was only

one entrance gate to the property but the defendants no.1 to 3 have

thereafter constructed an additional gate; iv) that the defendants no.1

to 3 have also demolished the entire outer block described in the

report of the Court Commissioner; v) that the defendants no.1 to 3

have constructed a room adjacent to the front wall where the

additional gate has been constructed; vi) that the defendants no.1 to 3

have converted the tin sheet roof of the main block to a cemented roof

and have also constructed doors, windows, ventilators and board

panels annexed with the roof; vii) that the defendants no.1 to 3 have

made other structural changes; and, viii) that the defendants no.1 to 3

have also parted with possession of the property to owners of

"BELTEK". Reliefs, of sealing of the property, punishing the

defendants no.1 to 3 and purging of the contempt have been sought.

4. Contempt Case No.45/2005 has been filed by the plaintiff averring i)

that the property No. 6-B, Jangpura, Mathura Road, New Delhi was

owned and possessed by the mother of the plaintiff Dr. (Mrs.) R.

Kohli and was recorded with the Land & Development Office

(L&DO) in the name of Dr. (Mrs.) R. Kohli; ii) that during the

pendency of the suit, defendants no.1 to 3 in collusion and conspiracy

with the defendant no.4 have forged the plaintiff‟s signatures on two

affidavits dated 17th November, 1989 and 20th September,1991 to the

effect that the plaintiff has no objection if the suit property is mutated

in the name of defendants no.1 to 3 and to the Will dated 7 th March,

1986 of Dr. (Mrs.) R. Kohli and have submitted the same before the

L&DO; iii) that in this manner, the defendants have on 2nd January,

1992 obtained mutation of the property without disclosing to the

L&DO the true facts; iv) that on the application of the plaintiff vide

order dated 17th November, 1993, again a Local Commissioner was

appointed to inspect the property and to report on the construction

thereon; v) that the Court Commissioner has filed a report dated 17 th

November, 1993 to the effect that the construction was still going on

in the property; and, vi) that a comparison of the reports dated 22nd

April, 1993 and 17th November, 1993 of the Commissioners

appointed, reporting on the construction on the property, shows

violation of the order dated 14th March, 1990 by the defendants.

Relief, of sealing of the property and appointment of receiver of the

property has been sought.

5. Contempt Case No.46/2007 has been filed by the plaintiff averring i)

that at the time of institution of the suit, property No. 6-B, Jangpura,

Mathura Road, New Delhi was a vacant plot of land; ii) that the

defendants no.1 to 3 encroached upon the property by taking

possession thereof from Sh. Khairati Lal who had in Suit

No.1080/1979 of this Court undertaken to this Court to hand over

possession of the property to Dr. (Mrs.) R. Kohli; iii) that the

defendants no.1 to 3 have also abetted in the contempt of the

undertaking given by Sh. Khairati Lal to this Court; iv) that the

defendants no.1 to 3 after so encroaching upon the property filed suit

No.182/1986 against Dr. (Mrs.) R. Kohli for specific performance; in

the said suit there were orders dated 23rd January, 1986, 8th April,

1986 and 3rd October, 1986 of status quo; in contempt of these orders,

the defendants no.1 to 3 got executed sale deeds dated 6 th December,

1988 of the property in their favour from the defendant no.4 Mr. K.V.

Kohli and have thereafter withdrawn suit No.182/1986; v) that the

execution of the sale deed by the defendant no.4 in favour of

defendants no.1 to 3 was also in violation of order dated 4 th

November, 1988 of the High Court of Bombay in Suit No.2951/1987;

vi) that since the defendants no.1 to 3 continued to raise construction,

on application of the plaintiff another Court Commissioner was

appointed to visit the property and to report on the construction

thereon and who has also submitted a report dated 11th September,

1998 and which report also demonstrates violation of the order dated

14th March, 1990; and, vii) that the defendants no.1 to 3 had also

allowed a charitable dispensary to run from the property. Reliefs, of

sealing of the property and appointment of receiver thereof and

punishment of the defendants no.1 to 3 and of directing status quo

ante with respect to the property have been claimed.

6. All the aforesaid contempt cases were filed invoking provisions of

Sections 10 and 12 of the Contempt of Courts Act, 1971 and Order

XXXIX Rule 2A of the CPC.

7. Upon change in pecuniary jurisdiction of this Court, the suit was

transferred to the subordinate courts but these contempt cases were

retained in this Court.

8. Vide judgment dated 22nd May, 2008 titled Pamela Manmohan

Singh Vs. Harnam Kaur reported as 2008 (104) DRJ 221 in the

aforesaid contempt cases, the defendants no.2 and 3 were held to be in

contempt and punished with fine of Rs.2,000/- each; insofar as the

reliefs claimed by the plaintiff under Order XXXIX Rule 2A of the

CPC were concerned, it was observed that the same could be granted

by the Court which was seized of the suit which was then pending in

the Court of the Additional District Judge (ADJ), Delhi. Accordingly,

liberty was granted to the plaintiff to seek relief under the provisions

of Order XXXIX Rule 2A of the CPC from the suit Court.

9. The suit, till 17th January, 2014, is found to be pending before the

Court of ADJ, Delhi.

10. Vide order dated 3rd December, 2014 in CM (Main) No.319/2013, the

suit was transferred from the Court of ADJ to this Court to be tried

along with other proceedings between the parties pending before this

Court. Till then, the ADJ, in accordance with the judgment dated 22nd

May, 2008 aforesaid had not decided the claim of the plaintiff for

relief under Order XXXIX Rule 2A of the CPC in the aforesaid

contempt cases.

11. Vide common order dated 1st August, 2016 in CS(OS) No.238/1989,

TEST.CAS. No.19/1997 and TEST. CAS. No.20/1997, no further

proceedings were ordered to be required in this suit and the outcome

of this suit was ordered to be governed by the outcome of those

proceedings in which consolidated issues were framed vide the said

order dated 1st August, 2016.

12. Only the claim of the plaintiff for relief under Order XXXIX Rule 2A

of the CPC in these contempt cases remains to be adjudicated. The

counsels were heard on 2nd December, 2016 on the said aspect and

orders reserved.

13. On 2nd December, 2016, I drew attention of the counsels to the

judgment of the Division Bench of this Court in Dr. Bimal Chandra

Sen Vs. Kamla Mathur ILR (1982) II Delhi 407 to the effect that

with respect to violation of an order under Order XXXIX Rules 1&2

of the CPC only, Order XXXIX Rule 2A of the CPC can be invoked

and not the provisions of the Contempt of Courts Act and which

judgment remained to be noticed in the judgment dated 22 nd May,

2008 aforesaid. It was further enquired from the counsel for the

plaintiff that once this Court has in exercise of jurisdiction under the

Contempt of Courts Act already punished the violation of the orders

in the suit, can the claim under Order XXXIX Rule 2A of the CPC

survive.

14. The counsel for the plaintiff stated that notwithstanding the judgment

in Dr. Bimal Chandra Sen supra, since in this proceeding vide

judgment dated 22nd May, 2008 liberty has been given to the plaintiff,

the plaintiff is entitled to press the relief. The counsel for the plaintiff

also contended that since the defendants in their replies to Contempt

Case Nos. 45/2007 and 46/2007 have denied any contempt, the

entitlement of the plaintiff to relief under Order XXXIX Rule 2A of

the CPC should be put to trial. On request of the counsel for the

plaintiff, the counsel for the plaintiff was also permitted to file

judgments if any sought to be relied by him within one week.

15. The counsel for the plaintiff has on 23rd December, 2016 instead of

filing copies of the judgments filed written arguments referring to i)

Ashok Nagar Welfare Association (Regd.) Vs. Jawahar Lal 69

(1997) DLT 591 (DB); ii) Shobha Shrestha Vs. Jay Randolph Vass

2009 (159) DLT 364; iii) Vidya Charan Shukla Vs. Tamil Nadu

Olympic Association AIR 1991 Madras 323 (FB); iv) C. Elumalai

Vs. AGL Irudayaraj (2009) 4 SCC 213; v) Tayabbhai M.

Bagasarwall Vs. Hind Rubber Industries Pvt. Ltd. AIR 1997 SC

1240; vi) Satyabrata Biswas Vs. Kalyan Kumar Kisku (1994) 2 SCC

266; vii) Mohammad Idris Vs. Rustam Jehangir Babuji (1984) 4

SCC 216; viii) Sujit Pal Vs. Prabir Kumar Sun AIR 1986 Calcutta

220; ix) Century Flour Mills Ltd. Vs. S. Suppiah AIR 1975 Madras

270 (FB); x) All Bengal Excise Licensees Association Vs.

Raghabendra Singh (2007) 11 SCC 374; xi) Patel Rajnikant

Dhulabhai Vs. Patel Chandrakant Dhulabhai (2008) 14 SCC 561;

xii) Delhi Development Authority Vs. Skipper Construction Co. (P)

Ltd. (1996) 4 SCC 622; xiii) National Highways Authority of India

Vs. You One-Maharia (JV) 169 (2010) DLT 222; xiv) Samee Khan

Vs. Bindu Khan AIR 1998 SC 2765; xv) The Commissioner,

Karnataka Housing Board Vs. C. Muddaiah AIR 2007 SC 3100;

xvi) Kanjimull & Sons Vs. Ansal Properties & Industries Ltd. 102

(2003) DLT 952; xvii) Yu Televentures Pvt. Ltd. Vs.

Telefornaktiebolaget LM Ericsson (PUBL) 2016 (154) DRJ 71;

xviii) ATV Projects India Ltd. Vs. Bharat Heavy Electricals Ltd. 157

(2009) DLT 13; xix) Central Bank of India Vs. Current Transport

Finance (P) Ltd. ILR (198) 1 Delhi 233; xx) Zahira Habibullah

Sheikh (5) Vs. State of Gujarat (2006) 3 SCC 374; xxi) Maharaj

Jagat Singh Vs. Lt. Col. Sawai Bhawani Singh 1993 Supp (2) SCC

313; xxii) Raj Singh Gehlot Vs. Padiam Exports Pvt. Ltd. 174 (2010)

DLT 693 (DB); xxiii) Montreaus Resorts Pvt. Ltd. Vs. Ascot Hotels

& Resorts Ltd. 174 (2010) DLT 439; xxiv) Arjan Singh Vs. Punit

Ahluwalia (2008) 8 SCC 348; xxv) Capital Land Builders Pvt. Ltd.

Vs. Shaheed Memorial Society 158 (2009) DLT 610; and, xxvi)

Komal Nagpal Vs. Kamal Nagpal 206 (2014) DLT 745.

16. I have considered the controversy.

17. I may at the outset, with respect to the averments in Contempt Case

No.46/2007, state that this Court in exercise of powers under Order

XXXIX Rule 2A of the CPC cannot adjudicate contempt or violation

of undertaking if any given by Sh. Khairati Lal in Suit No.1080/1979

of this Court or violation of order of status quo in Suit No.182/1996

of this Court or of the order dated 4th November, 1988 of the High

Court of Bombay in Suit No.2951/1987.

18. This Court in this proceeding, confined to Order XXXIX Rule 2A of

the CPC, is concerned only with the violation if any of the orders

made in this suit.

19. This Court in judgment dated 22nd May, 2008 in Pamela Manmohan

Singh supra, on going through the report of the Local Commissioners

appointed and the evidence affidavits filed by the plaintiff and which

were not controverted by the defendants, found that the defendants

no.2&3 to have willfully disobeyed the order dated 14th March, 1990

by changing the nature of the property and by making changes in the

property when they were prohibited from doing by order dated 14 th

March, 1990 and imposed a fine as aforesaid of Rs.2,000/- on each of

the defendants no.2&3 and thereafter observed "insofar as the reliefs

claimed by the petitioner under Order 39 Rule 2A CPC are concerned,

the same can be granted by the Court which is now seized of suit

No.609/2009. Consequently, the petitioner is granted liberty to seek

the relief under the provisions of Order 39 Rule 2A, CPC from the

learned Additional District Judge, Tis Hazari, who is seized of Suit

No.609/2006. The reliefs sought under Order 39 Rule 2A, CPC shall

be dealt with expeditiously by the said transferee court. The record of

Suit No.609/2006 be sent back immediately."

20. The Division Bench of this Court in Dr. Bimal Chandra Sen supra

and which as aforesaid remained to be noticed in the judgment dated

22nd May, 2008 held i) the Court which passes injunction order has

the power to commit for contempt in case of breach - this is the

unquestioned rule since 1882; ii) the Code of Civil Procedure, 1908

embodies the same Rule in Order XXXIX Rule 2A of the CPC; iii) a

disobedience of an order of injunction is a contempt of Court; iv)

Sub-rule (1) of Order XXXIX Rule 2A confers on Court the power to

punish such contempt and further prescribes the punishment therefor;

v) Sub-rule (1) of Order XXXIX Rule 2A of the CPC provides for the

punishment not only of disobedience of the temporary injunction but

also of breach of any of the terms subject to which the injunction may

have been granted; while High Courts as Courts of record have

inherent jurisdiction to commit for contempt, other Courts have no

such power apart from the provisions of Rule 2A of the CPC; vi) the

High Court has power under Section 10 of the Contempt of Courts

Act but the exercise of that power is discretionary; vii) Order XXXIX

Rule 2A of the CPC is a far more adequate and satisfactory remedy in

such cases; viii) any detailed inquiry must be left to the Court which

has passed the order and which is fully acquainted with the subject

matter of its own order of temporary prohibitory injunction; ix) it is

clearly more desirable that the Court which made the order of

injunction should go into the facts and ascertain the truth of the

alleged disobedience and extent to which it is willful; x) if the order

of injunction is disobeyed by a person other than a party to the lis,

being agent or servant of the party to the lis, the Court granting the

injunction has undoubted powers to punish him; xi) a person who has

got an effective alternative remedy of the nature specified under

Order XXXIX Rule 2A of the CPC should not be permitted to skip

over that remedy and take resort to initiate proceedings under the

Contempt of Courts Act - that would not be a proper exercise of

discretion on the part of the High Court to exercise its jurisdiction

under the Contempt of Courts Act when such an effective and

alternative remedy is available to any person; xii) when special

procedure and special provision is contained in the Order XXXIX

Rule 2A of the CPC for taking action for the disobedience of an order

of injunction, the general law of contempt of Court cannot be

invoked; xiii) if such a course is encouraged, it is sure to throw open a

floodgate of litigation under contempt jurisdiction; every decree-

holder can rush to the High Court stating that the decree passed by a

subordinate Court is not obeyed- this is not the purpose of the

Contempt of Courts Act; and, xiv) however under Order XXXIX Rule

2A of the CPC, action against a non-party to the lis cannot be taken

even if he has aided or abetted the violation of the interim order of

injunction and against whom no order of injunction was made.

21. From the aforesaid, it follows that the power of the Civil Court under

Order XXXIX Rule 2A of the CPC is in the nature of contempt of

court to the extent of violation of its own orders under Order XXXIX

Rules 1 & 2 of the CPC. Order XXXIX Rule 2A of the CPC

empowers the Civil Court to, in exercise of the said power, order the

property of the person guilty of disobedience or breach to be attached

and to order such person to be detained in civil prison for a term not

exceeding three months. Sub-rule (2) of Order XXXIX Rule 2A of the

CPC empowers the Court to sell the attached property and out of the

proceeds, award such compensation as the Court thinks fit to the

injured party. Per Section 12 of the Contempt of Courts Act, civil

contempt also is punishable with simple imprisonment for a term

which may extend to six months or with fine which may extend to

Rs.2,000/- or with both.

22. It will thus be noticed that the power to punish, under Order XXXIX

Rule 2A of the CPC and under the Contempt of Courts Act are also

similar, with the length of imprisonment under the Contempt of

Courts Act being double the length of imprisonment in Order XXXIX

Rule 2A of the CPC.

23. This Court, though as per the judgment of the Division Bench in Dr.

Bimal Chandra Sen supra, in exercise of power under the Contempt

of Courts Act, was not entitled to punish for disobedience of the

interim injunction in the suit but nevertheless proceeded to do so and

imposed the punishment of fine of Rs.2,000/- on each of the

defendants no.2&3. In my opinion in exercise of parallel powers

under Order XXXIX Rule 2A of the CPC, no further punishment can

be inflicted on the defendants. The same would amount to double

jeopardy i.e. punishing defendants for the same violation twice, once

under the Contempt of Courts Act and again under the Order XXXIX

Rule 2A of the CPC and which in my opinion is not permissible. I am

therefore of the further opinion that no further action can be taken

against the defendants no.2&3 under Order XXXIX Rule 2A of the

CPC.

24. As far as the judgments relied upon by the counsel for the plaintiff are

concerned:

i) Ashok Nagar Welfare Association (Regd.) supra cited on the

proposition that an application under Order XXXIX Rule 2A of

the CPC cannot be ordered to remain pending till the disposal

of the suit and has no application to the present controversy;

ii) Shobha Shrestha supra has been cited on the proposition that i)

interim orders till vacated are binding and cannot be flouted

and if flouted are punishable even if had been subsequently

vacated; and, ii) that the power under Article 215 of the

Constitution of India or under the Contempt of Courts Act to

punish is inherent power and is not ousted by Order XXXIX

Rule 2A of the CPC - however this judgment is of a Single

Judge and again does not notice the Division Bench judgment

in Dr. Bimal Chandra Sen supra;

iii) Vidya Charan Shukla supra on the proposition i) that High

Court, besides remedy provided under Rule 2A of Order

XXXIX, can also exercise inherent powers under Article 215 of

the Constitution of India - however as aforesaid, the view of

the Division Bench of this Court is different from the view of

the Full Bench of the Madras High Court; and, ii) that in

exercise of powers under Order XXXIX Rule 2A of the CPC

and Article 215 of the Constitution of India status quo ante can

be ordered (this part is discussed hereunder);

iv) C. Elumalai supra also to the effect that in exercise of powers

under the Contempt of Courts Act and under Order XXXIX

Rule 2A of the CPC status quo ante can be ordered (this part is

discussed hereunder)

v) Tayabbhai M. Bagasarwall supra, where on a finding under

Order XXXIX Rule 2A of the CPC of disobedience of the

order, imprisonment was ordered and has no applicability to the

present controversy;

vi) Satyabrata Biswas, Mohammad Idris, National Highways

Authority of India, The Commissioner, Karnataka Housing

Board, Kanjimull & Sons, ATV Projects India Ltd., Zahira

Habibullah Sheikh (5) and Capital Land Builders (Pvt.) Ltd.

supra where on facts violations were found and again have no

applicability to the present controversy;

vii) Sujit Pal, Century Flour Mills Ltd., All Bengal Excise

Licensees Association, Skipper Construction Co. (P) Ltd., Raj

Singh Gehlot , Montreaus Resorts Pvt. Ltd. & Arjan Singh

supra on the proposition that status quo ante can be ordered in

exercise of powers under Order XXXIX Rule 2A of the CPC;

viii) Patel Rajnikant Dhulabhai supra on finding violation of the

orders, imprisonment was ordered and has no application to the

present controversy;

ix) Samee Khan supra on the proposition that both attachment and

imprisonment can be ordered and which has no application to

the present controversy;

x) YU Televentures Pvt. Ltd. supra on the proposition that non-

parties cannot be punished under Order XXXIX Rule 2A of the

CPC;

xi) Central Bank of India supra which is on breach of undertaking

and has no application;

xii) Maharaj Jagat Singh supra where administrator was appointed

on violation being found and has no application;

xiii) Komal Nagpal supra on the proposition that apology is not

sufficient and which again has no application to the present

controversy.

25. As far as the claim of the plaintiff for restoration of status quo ante is

concerned, it is not as if this Court in exercise of jurisdiction under

the Contempt of Courts Act could not have ordered so. The

judgments cited by the counsel for the plaintiff himself are an

authority therefor. However this Court in judgment dated 22 nd May,

2008 did not deem it proper and once it has not been so deemed

proper under the Contempt of Courts Act, no case for ordering the

same in exercise of powers under Order XXXIX Rule 2A of the CPC

is made out.

26. Moreover, as would be obvious from the order dated 1 st August, 2016

in all the proceedings between the parties and relating to the property,

it is otherwise not equitable that at this stage, construction of the

property be directed to be restored to the condition in which it was as

reported in the first report of the Court Commissioner.

27. I, therefore hold that no further orders in exercise of powers under

Order XXXIX Rule 2A of the CPC are required in the contempt

cases.

RAJIV SAHAI ENDLAW, J.

MARCH 24, 2017 „gsr‟