Delhi High Court
Krishna Gupta vs Sh. Narendra Nath And Anr. on 11 October, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CCP(O) 60/2016 in CS(OS) 663/2011
Reserved on: 21.07.2017
Date of decision: 11.10.2017
IN THE MATTER OF:
KRISHNA GUPTA ..... Petitioner
Through: Mr. S.N. Choudhri, Mr. H.D. Talwani
and Ms. Shruti Choudhri, Advocates
versus
SH. NARENDRA NATH AND ANR. ..... Respondents
Through: Ms. Manmeet Arora, Advocate with
Mr. Tarang Gupta, Advocate for R-2.
CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI
HIMA KOHLI, J.
1. The present petition has been filed by the petitioner (plaintiff No.1 in
the suit proceedings) under Sections 11 and 12 of the Contempt of Courts
Act read with Order XXXIX Rule 2A CPC and Section 151 CPC against
her brother, respondent No.1 (defendant No.2 in the suit) and her first
cousin, respondent No.2 (impleaded in the suit as a Karta of the defendant
No.4/Ram Chander Nath HUF), alleging wilful breach of the orders dated
27.02.2013, 29.5.2015 and 24.8.2015, passed in CS(OS) No. 663/2011.
2. In the first instance, having regard to the twists and turns of the case
where rounds of appeals have arisen out of the suit that is at the trial stage, a
narrative of the relevant facts and the orders passed from time to time, is
considered necessary. In March, 2011, the petitioner along with her sister
(plaintiff No.2), instituted a suit for partition, possession, rendition of
accounts, permanent and mandatory injunction in the High Court claiming
1/4th share each in the assets of M/s Rajinder Nath and Company, HUF
(defendant No. 1 in the suit), 1/8th share each in the joint/common,
undivided assets of defendant No.1/HUF and defendant No. 4/M/s Ram
Chander Nath HUF and 1/4th share each in the undivided estate of their
deceased parents. In the said suit, respondent No.1 herein, Mr. Narendra
Nath was arrayed as defendant No.2 and as the Karta of the defendant
No.1/M/s Rajinder Nath HUF and the respondent No.2 herein, Mr. Ashok
Kumar Nath was arrayed as the Karta of the defendant No.4, M/s Ram
Chander Nath HUF. Both the plaintiffs, defendant No.2 and defendant No.3
in the suit, are siblings, being the children of Late Rajinder Nath whereas
respondent No.2 is the son of Late Ram Chander Nath who was the real
brother of Late Rajinder Nath. Accompanying the said suit, was an
application filed by the plaintiffs under Order XXXIX Rules 1 & 2 CPC,
(I.A. 4350/2011) praying inter alia for stay.
3. Summons were issued in the suit and the stay application on
18.3.2011. On 13.5.2011, appearance was entered on behalf of the
respondent No.1/defendant No.2 and his counsel had stated that the
defendant No.1/HUF was not in existence since December, 2009.
Appearance was also entered on behalf of the defendant No.3 and the
defendant No.4/HUF. An application under Order VII Rule 11 CPC was
filed by the respondent No.1 herein (defendant No.2), registered as I.A.
7915/2011 for rejection of the plaint. Another application under the same
provision was filed by the respondent No.2 herein as the Karta of the
defendant No. 4/HUF, registered as I.A. 7857/2011. On the said date, the
Court had observed on the stay application filed by the plaintiffs, that
"Needless to say that during the interregnum, the lis pendens will apply".
Subsequently on 28.2.2012, a fresh application was filed by the plaintiffs
under Order XXXIX Rules 1 and 2 CPC (I.A. 10343/2012), seeking an
injunction order against the defendants on the ground that some of the
immovable properties mentioned in the suit had been wrongly mutated in the
names of some of the defendants. While disposing of the said application on
28.05.2012, it was directed that the documents filed along with the said
application would be considered at the time of hearing the earlier stay
application.
4. Subsequently, arguments were addressed on the two applications filed
by the defendant No.2 and defendant No.4/HUF, both under Order VII Rule
11 CPC (IAs No.7915/2011 and 7857/2011), seeking rejection of the plaint
on several counts, including on the ground that the same is barred by law,
barred by limitation and is deficient in court fees. By a detailed order passed
on 11.2.2013, IA 7915/2011 filed by the defendant No.2 (respondent No.1
herein) was dismissed in entirety and IA No.7857/2011 filed by the
respondent No.2 as the Karta of the defendant No.4/HUF, was partly
dismissed, while leaving open the remaining issues of non-disclosure of
cause of action and the plea of misjoinder of the parties raised therein, for
being decided separately.
5. In the very same month, an application was filed by the respondent
No.2 herein under Order I Rule 10(2) CPC, praying inter alia for deletion of
the defendant No. 4/HUF from the array of defendants (IA 3170/2013). On
25.2.2013, notice was issued on the said application and it was directed to be
placed before the Joint Registrar for appropriate orders. On the very same
date, on examining the averments made in the application under Order VII
Rule 11 CPC (IA No.7857/2011) filed by the respondent No.2 herein
describing himself in the supporting affidavit as the Karta of the defendant
No.4/HUF, it was noticed that though it had been pleaded therein that the
defendant No.4/HUF was not in existence on the date of institution of the
suit and all the assets and businesses of the said HUF had fallen to his share,
he had not sought his impleadment in the suit and nor had the plaintiffs
asked for permission to implead him as a party. Having regard to the
submission made by Ms. Arora, learned counsel for the respondent No.2
herein (defendant No.2) that she had filed an application for seeking deletion
of the defendant No.4/HUF from the array of defendants, IA No.7857/2011
filed on his behalf for rejection of the plaint, was disposed of.
6. On 27.2.2013, arguments were addressed on the stay application filed
by the plaintiffs (IA No.4350/2011), wherein the presence of the counsels
for the defendant No.2 (respondent No.1 herein), the defendant No. 3 and of
the counsel for the defendant No.4/HUF was duly recorded. In the course of
arguments, learned Senior Advocate appearing for the defendants No.2 & 3
had stated, on instructions, that till the next date of hearing, the said
defendants shall maintain status quo with regard to the title and possession
of the following immovable/movable properties :
"a). Property No.92 & 94, Sundar Nagar, New Delhi.
b). Property No.25, Golf Links, New Delhi.
c). Property situated at 1080-1081, Northern Gate,
Jama Masjid, Delhi,
d). Property situated at 1A, Qutab Minar, Mehrauli,
New Delhi,
e). Property bearing House No.2426, Churiwalan,
Delhi,
f). A nine piece Ivory Sofa Set."
7. Ms. Manmeet Arora, learned counsel for the defendant No.4/HUF had
stated on the said date that her client was also agreeable to maintaining
status quo in respect of House No.2426, Churiwalan, Delhi, till the next date
of hearing. In response to the submission made by learned Senior Advocate
appearing for the plaintiffs that since the immovable property situated at
Golf Links, New Delhi was lying vacant, the defendants be directed to
maintain status quo with regard to the possession thereof, it was stated on
behalf of the defendants No.2 and 3 and the counsel for the respondent No.2
herein that they did not have specific instructions with regard to the current
status of possession of the said property. They had further clarified that the
said property had always remained on lease and in case it was lying vacant
on expiry of the lease, they would give prior intimation to the Court before
inducting a new tenant, by filing an appropriate application in that regard.
On the same date, on the suggestion of the learned Senior Advocate
appearing for the defendants No.2 and 3 that the parties being family
members, could be referred to mediation, an order to the said effect was
passed and they were all referred to the Delhi High Court Mediation and
Conciliation Centre.
8. In the meantime, on 18.4.2013, the application moved by the
respondent No.2 herein asking for deletion of the defendant No.4/HUF from
the array of defendants, (I.A. 3170/2013) was listed before the learned Joint
Registrar. It was pleaded in the said application that M/s Ram Chander Nath,
HUF had ceased to exist even prior to the institution of the suit. On a query
being posed by the Joint Registrar to the counsel for the applicant that if the
defendant No.4/HUF had ceased to exist, then how could the captioned
application be brought on its behalf by the respondent No.2 herein as its
Karta, when he was not a party in the suit proceedings in his individual
capacity, initially, learned counsel for the applicant had sought a pass over
to obtain instructions as to whether respondent No.2 herein proposed to file
an application for his impleadment in the suit in his individual capacity in
view of the stand taken by him that his personal property had been made a
subject matter of the suit. However later on, after obtaining necessary
instructions, learned counsel had submitted that she proposed to press the
application as filed. Vide order dated 18.4.2013, the learned Joint Registrar
dismissed the said application, expressing a view that the applicant was not a
party in his individual capacity in the suit proceedings and he did not wish to
be impleaded in the suit either in that capacity or as a Karta of the defendant
No.4/HUF and in such circumstances, he could not take a plea that the HUF
had ceased to exist.
9. Aggrieved by the order dated 11.2.2013, dismissing his application
under Order VII Rule 11 CPC, the defendant No.2 (respondent No.1 herein)
filed an intra court appeal registered as FAO(OS) 217/2013, which was
admitted by the Division Bench on 23.4.2013 and the proceedings in the suit
were stayed till the next date of hearing, i.e., 22.7.2013.
10. On 24.05.2013, learned Senior Advocate for the defendant No.2
(respondent No.1 herein) and Ms. Manmeet Arora, counsel for Shri Ashok
K. Nath (respondent No.2 herein) had appeared in the suit proceedings and
informed the court about the order dated 23.04.2013, passed in the captioned
appeal. On that, a specific query was posed to the counsel for the defendant
No.2 as to whether the order dated 27.2.2013 passed in IA 4350/2011 (stay
application filed by the plaintiffs) had been brought to the notice of the
Division Bench. The response was that no specific averment in that regard
had been made in the appeal. However, learned counsel appearing for the
defendant No.2 had stated on instructions that his clients had expressed their
willingness to maintaining status quo in respect of the properties mentioned
in the earlier order dated 27.2.2013, only till 25.4.2013 and no further
instructions had been conveyed to him for continuing the said undertaking.
11. In view of the stand taken by the defendant No.2 and noting that the
defendants No.2 and 3 and Mr. Ashok K. Nath (respondent No.2 herein)
were unwilling to maintain status quo in respect of the immovable/movable
properties mentioned in the order dated 27.2.2013, and instead, they were
insistent that the suit proceedings having been stayed by the Division Bench,
no further orders could be passed in IA 4350/2011, directions were issued to
the counsel for the defendant No.2 to take necessary steps to bring the order
passed on 27.2.2013, to the notice of the Division Bench and obtain
necessary clarifications. It was further directed that till the said clarifications
are obtained and conveyed in the suit proceedings, defendants No.2 and 3
and Mr. Ashok K. Nath (respondent No.2 herein) shall maintain status quo
with regard to the title and possession in respect of all the properties that
were mentioned in the order dated 27.2.2013, including premises No.1A,
Qutub Minar, Mehrauli, New Delhi (hereinafter referred to as „the Qutub
Minar property‟), which is the subject matter of the present petition.
12. Aggrieved by the aforesaid order dated 25.4.2013, the defendant No.2
(respondent No.1 herein) filed a second intra court appeal, registered as
FAO(OS) 236/2014). The order dated 8.5.2013 passed by the Division
Bench in the said appeal records that after some arguments were addressed
on behalf of the appellant/defendant No.2, his counsel had expressed his
willingness to bind himself to the statement made in the suit proceeding on
27.2.2013, till such time as the pending FAO(OS) 217/2013 was decided.
While taking the aforesaid statement on record, the captioned appeal was
disposed of.
13. Subsequently, vide order 15.7.2013, passed in FAO(OS) 217/2013,
the Division Bench had directed the defendant No.2 to deposit tentative
costs of Rs.5.00 lacs before the appeal could be heard on merits, and had
further ordered that a decision as to appropriation of costs shall be taken
after the case is heard. The aforesaid order was challenged by the defendant
No.2 by filing a SLP before the Supreme Court, registered as Civil Appeal
No.8609/2013. Vide order dated 23.12.2013, the said appeal was allowed
and the Supreme Court directed that the defendant No.2 be heard without
imposition of any pre-condition to deposit costs. During the pendency of the
said appeal, the Division Bench had sent the parties back to mediation for
exploring the possibility of an amicable resolution. However, on 27.5.2015,
the parties informed the Division Bench that a settlement was not possible.
On the very same date, while listing the matter for final hearing on
8.12.2015, the Division Bench had directed that the suit shall be proceeded
with further and the stay order that was granted earlier, stood vacated.
14. On 29.5.2015, counsels for the plaintiffs and the defendant No.2 had
appeared in the suit proceedings and apprised the Court of the order passed
by the Division Bench. Accordingly, a date was set down for the parties to
address arguments on the stay application. It was further directed as
follows:-
"5. Till further orders, the defendants No.2 & 3 are
restrained from selling, transferring, alienating or parting with
possession of the following immoveable/movable properties:-
a). Property No.92 & 94, Sundar Nagar, New Delhi.
b). Property No.25, Golf Links, New Delhi.
c). Property situated at 1080-1081, Northern Gate, Jama
Masjid, Delhi,
d). Property situated at 1A, Qutab Minar, Mehrauli, New
Delhi,
e). Property bearing House No.2426, Churiwalan, Delhi,
f). A nine piece Ivory Sofa Set.
Similarly, till further orders, Mr.Ashok K. Nath is restrained
from selling, transferring, alienating or parting with possession
of House No.2426, Churiwalan, Delhi."
15. On 24.8.2015, counsel for the defendants No.1 and 2 had informed
the Court that aggrieved by the order dated 27.5.2015, passed by the
Division Bench in FAO(OS) 217/2013 vacating the stay order, the defendant
No.2 had filed an appeal before the Supreme Court which was listed on the
very same date. She had further submitted that in view of the statement
made on 8.5.2013 before the Division Bench that they were agreeable to
abide by the statement made on their behalf in the suit proceedings on
27.2.2013, till such time as their appeal is decided, defendants No.1 and 2
shall continue to abide by the same. As for the defendant No.3 and
defendant No.4/HUF, the order dated 24.8.2015 had recorded that none had
been appearing for the said defendants for some time and that it appeared
that they did not wish to oppose the stay application. As a result, the interim
order dated 29.5.2015, passed in respect of House No.2426, Churiwala,
Delhi, was made absolute qua the said defendants. Further, they were
restrained from selling, transferring, alienating or parting with possession of
their respective undivided shares in the movable/immovable properties
mentioned at Serial No.(a) to (h) of IA 4350/2011, which included their
shares in the Qutub Minar property. With these directions, the case was
adjourned to 11.9.2015, to await a decision by the Supreme Court. It is a
matter of record that eventually, vide order dated 24.8.2015, the Supreme
Court had dismissed the appeal filed by the defendant No.2 against the
order dated 27.5.2015, passed by the Division Bench, vacating its earlier
order, staying the suit proceedings.
16. On 14.9.2015, taking note of the fact that though a written statement
had been filed by the defendant No.3, none had been appearing on her behalf
as also on behalf of the defendant No.4/HUF, they were directed to be
proceeded against ex parte and the suit was adjourned to 17.11.2015, for
framing of issues. On 17.11.2015, nine issues were framed in the suit. Later
on, on an application filed by the defendant No.2, five more issues were
framed on 11.3.2016 and the parties were directed to appear before the Joint
Registrar for proceeding with the trial in the suit.
17. For the sake of completion of the narrative, it may be noted that
FAO(OS) 217/2013 filed by the respondent No.1 against the order dated
11.02.2013, dismissing his application filed under Order VII Rule 11 C.P.C.
for rejection of the plaint, was ultimately dismissed by the Division Bench,
vide judgment dated 06.07.2017.
18. In August, 2016 the present contempt petition was filed by the
petitioner/plaintiff No.1 alleging inter alia that the respondent No.1
(defendant No.2) and the respondent No.2 are in gross breach of the orders
dated 27.2.2013, 29.5.2015 and 274.8.2015, having recently
sold/transferred/alienated and/or parted with possession of a part of the
Qutub Minar property, subject matter of the stay orders, to some designers
who had issued advertisements informing the public at large that they had
moved their flagship store to the said address.
19. Notice was issued on the present petition on 10.8.2016, returnable on
23.9.2016. On 23.9.2016, appearance was entered on behalf of the
respondent No.1. However, none had appeared for the respondent No.2. On
the basis of the service report in respect of the said respondent which
revealed that he had refused to accept the summons dispatched through
courier, he was deemed to be served.
20. On 23.09.2016, Ms. Rajkotia, learned counsel for the respondent No.1
had stated that prior to institution of the suit, her client and the respondent
No.2 had executed a Memorandum of Family Settlement in respect of the
Qutub Minar property and the portion of the said property which as per the
petitioner, has been parted with/transferred in violation of the court orders,
had fallen to the share of the respondent No.2. It was thus her stand that her
client is not in breach of any orders passed by the Court, though the same
was disputed by learned counsel for the petitioner. Later on, the daughter of
the respondent No.1 had filed a brief affidavit on his behalf stating inter alia
that the subject premises had been partitioned between respondent No.1 and
respondent No.2 by virtue of a Deed of Partition dated 23.07.2010 and the
respondent No.1 was maintaining "status quo as per order dated 29.05.2015
with respect to Block-A portion of the property..... of which he has
possession and control."
21. On 9.12.2016, Ms. Manmeet Arora, Advocate who was earlier
appearing for the defendant No.4/HUF in the suit proceedings, had entered
appearance for the respondent No.2 and was granted time to file a reply to
the contempt petition. In his reply, the respondent No.2 has taken several
preliminary objections as to the maintainability of the contempt petition. The
respondent No.2 has averred in his affidavit that till the date he was served
with a copy of the contempt petition, he had no knowledge of passing of the
order dated 27.5.2015, by the Division Bench in FAO(OS) 217/2013,
vacating the order dated 23.04.2013, staying the suit proceedings; that as the
interim order passed in the suit had been modified on 24.8.2015, in the
absence of the respondent No.2, the petitioner herein was under an
obligation to comply with the provisions of Order XXXIX Rule 3 CPC and
having failed to do so, she cannot take advantage of her own wrong.
22. In her arguments, Ms. Arora, learned counsel for the respondent No.2
stated that her client and the respondent No.1 are not on talking terms and
neither he, nor the petitioner had communicated the order dated 24.8.2015 to
him; that in any case, the order dated 24.8.2015 was passed against the
defendant No.4/HUF in the suit and not against the respondent No.2; that
though the Court had been apprised of the fact that the defendant No. 4/HUF
had ceased to exist on 15.2.2010, whereafter all its assets and properties
exclusively vested in the respondent No.2, the petitioner had failed to
implead him in the suit at her risk and peril; that no order of restraint, in
respect of the assets that were owned by the respondent No.2 could have
been passed on 24.8.2015, as the petitioner had not claimed any share in the
said assets; that the Qutub Minar property having already been partitioned
by metes and bounds between the respondents No.1 and 2 and there being
no dispute with regard to the share of the respondent No.2 therein, no
prejudice has been caused to the petitioner on creation of a tenancy by the
respondent No.2 in a portion of the property that had fallen in his share.
23. In support of her submission that contempt proceedings will lie only
when the lapse on the part of the respondent is deliberate and in the present
case, respondent No.2 having never been informed by the petitioner of the
order dated 24.08.2015, restraining the defendants from selling, transferring,
alienating or parting with possession of their respective undivided shares in
the suit properties including the Qutub Minar property, no action ought to
be taken against the respondent No.2, reliance was placed on the decisions
in cases of Debabrata Bandopadhyay and Ors. vs. State of West Bengal and
Anr. reported as AIR 1969 SC 189, Ram Chand Verma vs. DDA reported as
1997(68) DLT 198 and Smt. Komal Nagpal and Ors. vs. Kamal Nagpal and
Ors. reported as 2014 (206) DLT 745. To substantiate her submission that
since the respondent No.2 was not impleaded as a party in his individual
capacity in the suit, wherein the order of injunction was passed, he ought not
to be proceeded against for disobedience of the injunction order, the
decisions in the cases of Bundu vs. Shah Alam and Ors. reported as
2015(219) DLT 99 and Mohd. Sharfuddin (Deceased) through his LRs vs.
Mohd. Jamal reported as MANU/AP/0213/2003 [2003 (3) ALD 83] had
been cited by learned counsel. To fortify her submission that a
Memorandum of Partition need not be registered and can still be used for
collateral purposes, reference was made to the case of Kale and Ors. vs.
Deputy Director of Consolidation and Anr. reported as (1976) 3 SCC 119.
24. It was thus urged that there is no disobedience of the orders dated
27.2.2013, 29.5.2015 and 24.08.2015, as alleged by the petitioner. On
merits, it was sought to be argued that the interim order dated 24.8.2015,
passed in IA 4350/2013, qua the defendant No.4/HUF is liable to be vacated
for the reason that it amounts to interference in the enjoyment of the
respondent No.2‟s rights in his properties, for which a separate application
was being moved under Order XXXIX Rule 4 CPC, for vacation of the said
order.
25. To counter the above arguments, Mr. Chaudhari, learned counsel for
the petitioner asserted that the respondent No.2 has all along been in the
know of the proceedings in the suit and the orders passed therein through the
respondent No.1, as both of them are in league with each other, so as to
willy-nilly deprive the petitioner and her sister of their lawful share in the
suit properties. He submitted that even if the respondent No.2 was not
impleaded in the suit as a defendant, in his individual capacity, he has
appeared as a Karta of the defendant No.4/HUF, had filed an application for
rejection of the plaint (I.A. 7857/2011) and had stated through counsel on
22.2.2013, that the said application may be treated as one filed by him in his
individual capacity. Later on, respondent No.2 had moved an application
under Order I Rule 10 CPC for deletion of the defendant No.4/HUF from the
array of defendants, which was summarily dismissed by the learned Joint
Registrar vide order dated 18.4.2013 and the said order has attained finality.
It was thus submitted that respondent No.2 cannot claim that he did not have
knowledge of the orders passed in the suit. Learned counsel had further
canvassed that in any event, for being visited with the consequence of
disobedience of any injunction order, the respondent need not be a party to
the suit proceedings for the reason that the expression used in Section 2A of
Order XXXIX of the C.P.C., has a wide sweep since it refers to "person
guilty of such disobedience". In this context, the decisions in the case of
Tayabbhai M. Bagasarwalla and Another vs. Hind Rubber Industries Pvt.
Ltd. etc. reported as AIR 1997 SC 1240 and Mohd. Sharfuddin (deceased)
(supra), were relied on.
26. It was next contended by learned counsel for the petitioner that the
Partition Deed dated 23.7.2010, set up by the respondents is inadmissible in
evidence as it is neither properly stamped, nor registered; that the said
document is antedated and created after the respondents No.1 and 2 were
served with a legal notice dated 18.8.2010 issued on behalf of the petitioner,
only to defeat her lawful claim. In support of the said submission, reliance
was placed on Avinash Kumar Chauhan vs. Vijay Krishna Mishra reported
as AIR 2009 SC 1489 and order dated 5.4.2010 passed in CS (OS)
549/1995 entitled Shri Mangat Ram & Another vs. Shri Ram Narain Gupta
& Another. All other pleas taken by the respondent No.2 in his reply
affidavit were specifically disputed by learned counsel for the petitioner,
who reiterated the stand taken in the petition that the properties of the
defendant No.1/HUF and the defendant No.4/HUF are common and
undivided and when a specific order was passed by the Court in the suit
proceedings, restraining the respondents herein from parting with possession
of any of the said properties, they were duty bound to obey the said orders
and any plea that the said properties had been partitioned between the
respondents when the petitioner and her other siblings were never made
parties thereto, is misconceived and fallacious.
27. To urge that the Memorandum of Partition dated 23.07.2010 is
nothing but a smoke screen and both the respondents have continued to
conduct their business jointly from the entire Qutab Minar property, learned
counsel for the petitioner pointed out that both of them have been in joint
litigation with the municipal authority in respect of the said premises till as
recently as the year 2015 and nowhere in the joint petition filed by them
before the ATMCD, did they make a mention of the alleged partition. On
the contrary, both the respondents filed their affidavits in the said
proceedings describing themselves as partners of "Indian Cottage
Industries", in respect of the entire premises, by treating the same as a single
unit. He stated that even after admitting to the fact that he had parted with
possession of a part of the Qutub Minar property, in the teeth of a restraint
order passed in the suit proceedings, injuncting all the defendants from
doing so, the respondent No.2 has not taken any steps to purge the contempt
and instead, his counsel has sought to address arguments on merits, for
seeking vacation of the interim order dated 24.8.2015, which is
impermissible.
28. Ms. Arora, learned counsel for the respondent No.2 had sought to
clarify that though the business of the partnership firm, M/s Faqir Chand
Raghunath Dass, was initially being carried out from the Qutub Minar
property, but the Deed of Partition dated 23.7.2010 that was executed
between the respondents No.1 and 2, had recorded inter alia that they had
decided to partition the said premises and they had even demarcated the
parcel of land into two blocks on a site plan, identified as Block-A and
Block-B. Block-A having an area of 2544 sq. meters had fallen to the share
of the respondent No.1 and Block-B, having an area of 3811 sq. meters, had
fallen to the share of the respondent No.2. She stated that thereafter, both the
parties had remained in distinct possession of their respective half shares in
the subject premises. As for the joint petition filed by the respondents No.1
and 2 in respect of the Qutub Minar property before the ATMCD, describing
themselves as partners of "Indian Cottage Industries", it was sought to be
argued that this fact has no relevance to the present petition and in any case,
as on date, it is not the firm, M/s Faqir Chand Raghunath Dass, that is
operating from the subject premises, but Indian Cottage Industry (1959), a
partnership firm, of which the respondent No.2 and his son are the only
partners.
29. In view of the specific plea taken by learned counsel for the petitioner
that the subject premises is in occupation of a partnership firm of the
respondents No. 1 and 2 under the name "Indian Cottage Industries", which
fact, as per him, could be verified from the cause title of the appeal jointly
filed by the respondents before the ATMCD and the pleas taken therein, the
Registry was directed to summon the case file for perusal. It is also relevant
to note that besides the affidavit filed by him, the respondent No.2 had filed
a separate application in the present petition for leave to file a copy of the
lease deed dated 13.7.2016 executed by him in respect of the subject
premises in a sealed cover on the ground that the same are personal
documents and he would be gravely prejudiced if they are made a part of the
record. Pertinently, no sealed cover was filed with the application. A copy of
the said document was furnished by learned counsel for the respondent No.2
later on, under index dated 30.03.2017 along with the details of the amount
received from the tenant, M/s Surya Design Line Pvt. Ltd. On 21.7.2017, in
view of the submission made by counsel for the petitioner that his client had
already obtained a certified copy of the aforesaid lease deed from the Office
of the Registrar of Assurances, the said application was disposed of as
infructuous.
30. This Court has carefully perused the pleadings and the documents
placed on record, considered the rival submissions advanced by the counsels
for the parties and examined the case law cited by them.
31. Before proceeding to examine the pleas taken by the parties, it may be
stated at the outset that this Court does not propose to take a view on the
arguments advanced by both sides on the legality and/or validity of the
Memorandum of Partition dated 23.7.2010 relied on by the counsel for the
respondents and disputed by counsel for the petitioner as inadmissible, nor
does this Court propose to make any observations on merits as to whether
the properties of the defendant No.1/HUF and the defendant No.4/HUF in
the suit, are common and undivided as claimed by the petitioner or as per the
respondents, the said properties stand already partitioned by metes and
bounds between them. All these aspects shall be decided in the suit, at the
end of the trial, but not in the present contempt petition, its scope being
fairly limited. Therefore, need is not felt to examine the decisions cited by
learned counsel for the petitioner in the cases of Yellapu Uma Maheswari &
Anr. vs. Buddha Jagadheeswararao & Ors. [2015 (13) SCALE 615],
Avinash Kumar Chauhan vs. Vijay Krishna Mishra, (AIR 2009 SC 1489)
and Mangat Ram & Anr. vs. Ram Narain Gupta & Ors. [decided on
5.4.2010 in IA 2698/2007 in CS(OS)549/1995] or cited by learned counsel
for the respondent No.2 in the case of Kale & Ors. (supra).
32. The limited scope of the present petition is for this Court to decide as
to whether the respondent No.1, impleaded as defendant No.2 in the suit and
the respondent No.2, impleaded as a Karta of the defendant No.4/HUF in the
suit but not in his personal capacity, are in breach of the restraint orders
passed in the suit and if so, whether they ought to be proceeded against
under Order XXXIX Rule 2A of the CPC, for violation of orders passed in
the suit.
33. It may be highlighted that the powers vested in the court to punish the
violators of the orders passed by it are engrafted in Order XXXIX Rule 2A
CPC and the said power is independent of the provisions of the Contempt of
Courts Act, 1971. It is a different matter that the petitioner has invoked both
the statutes in the present case. The framework of Order XXXIX Rule 2A of
the CPC does not rule out any person against whom an injunction order is
granted. It is noteworthy that the expression used in the said provision is that
"a person guilty of disobedience or breach of injunction order" is liable for
the consequences spelt out in Rule 2A. This means that not only are the
parties to the main proceedings expected to respect and obey an order passed
by the court, but even those persons who are not parties to the suit but have
notice or knowledge of the said order must comply with it and if they still
proceed to aid or abet or violate an injunction order, they can be held guilty
of civil contempt. The underlying principle behind the said provision is that
every effort must be made to implement an order of the court and not to
disobey the same.
34. In the case of Patel Rajnikant Dhulabhai & Anr. vs. Patel
Chandrakant Dhulabhai & Ors. (2008) 14 SCC 561, the Supreme Court had
the occasion to examine the provisions of Order XXXIX Rule 2A CPC as
also Section 12 of the Contempt of Courts Act and on a conspectus of the
case law on the aspect of wilful disobedience of an order of the court, as
discussed in the cases of Kapildeo Prasad Sah & Ors. vs. State of Bihar &
Ors. (AIR 1999 SC 3215), Anil Ratan Sarkar & Ors. vs. Hirak Ghosh &
Ors. (2002 CriLJ 1814), Ashok Paper Kamgar Union vs. Dharam Godha &
Ors. (2004 Cri.LJ 1239) and Commissioner, Karnataka Housing Board vs.
C. Muddaiah (AIR 2007 SC 3100), it was held that punishing a person for
contempt of court is a drastic step and such an action should not be taken
normally. At the same time, the Supreme Court observed that it is the duty
of the court to uphold and maintain the dignity of courts and majesty of law,
which may call for such an extreme step for proper administration of justice,
to ensure due compliance of the orders passed by the court. The court opined
that a strict view is required to be taken under the Act and courts should not
hesitate in wielding the potent weapon of contempt, where considered
imperative.
35. In the above context, it is pertinent to refer to the following
observations made by the Supreme Court in the case of Reliance
Petrochemicals Ltd. vs. Proprietors of Indian Express Newspapers Bombay
Private Ltd. [1988 4 SCC 592], highlighting the underlying purpose of
exercising contempt proceedings:-
"35. The question of contempt must be judged in a particular
situation. The process of due course of administration of
justice must remain unimpaired. Public interest demands that
there should be no interference with judicial process and the
effect of the judicial decision should not be pre-empted or
circumvented by public agitation or publications. It has to be
remembered that even at turbulent times through which the
developing countries are passing, contempt of Court means
interference with the due administration of justice.
36. The law of contempt secures public respect and
confidence in the judicial process and provides the
sanction for any act or conduct which is likely to destroy
or impair such respect and confidence." (emphasis added)
36. In the case of In re: Vinay Chandra Mishra reported as AIR 1995 SC
2348, the Supreme Court has discussed at length as to how the law of
contempt serves public interest and builds confidence in the judicial process.
The following observations made in para 13 are apposite:-
"13.....The rule of law is the foundation of a democratic
Society. The Judiciary is the guardian of the rule of law.
Hence, judiciary is not only the third pillar, but the central
pillar of the democratic State. In a democracy like ours,
where there is a written Constitution which is above all
individuals and institutions and where the power of judicial
review is vested in the superior courts, the judiciary has a
special and additional duty to perform, viz. to oversee that all
individuals and institutions including the executive and the
legislature act within the framework of not only the law but
also the fundamental law of the land. The duty is apart from
the function of adjudicating the disputes between the parties
which is essential to peaceful and orderly development of the
Society. If the judiciary is to perform its duties and
functions effectively and remain true to the spirit with
which they are sacredly entrusted to it, the dignity and
authority of the Courts have to be respected and
protected at all costs. Otherwise, the very cornerstone of
our constitutional scheme will give way and with it will
disappear the rule of law and the civilized life in the
Society. It is for this purpose that the Courts are
entrusted with the extraordinary power of punishing
those who indulge in acts whether inside or outside the
Courts, which tend to undermine their authority and
bring them in disrepute and disrespect by scandalising
them and obstructing them from discharging their duties
without fear or favour. When the Court exercises this
power, it does not do so it vindicate the dignity and
honour of the individual judge who is personally attacked
or scandalised, but to uphold the majesty of the law and
of the administration of justice. The foundation of judiciary
is the trust and the confidence of the people in its ability to
deliver fearless and impartial justice. When the foundation
itself is shaken by acts which tend to create disaffection and
disrespect for the authority of the Court by creating distrust
in its working, the edifice of the judicial system gets eroded.
......." (emphasis added)
37. In the case of Kapildeo Prasad Sah and Ors. vs. State of Bihar and
Ors. reported as AIR 1999 SC 3215, the Supreme Court has explained the
circumstances in which it can be held that the respondents have committed
contempt in the following words:-
"9. For holding the respondents to have committed contempt,
civil contempt at that, it has to be shown that there has been
wilful disobedience of the judgment or order of the court.
Power to punish for contempt is to be resorted to when there is
clear violation of the court's order. Since notice of contempt
and punishment for contempt is of far-reaching consequence,
these powers should be invoked only when a clear case of
wilful disobedience of the court's order has been made out.
Whether disobedience is wilful in a particular case depends on
the facts and circumstances of that case. Judicial orders are to
be properly understood and complied. Even negligence and
carelessness can amount to disobedience particularly when
attention of the person is drawn to the court's orders and its
implication. Disobedience of court's order strikes at the
very root of rule of law on which our system of governance
is based. Power to punish for contempt is necessary for the
maintenance of effective legal system. It is exercised to
prevent perversion of the course of justice." (emphasis
added)
A similar view has been expressed in the case of Debabrata Bandopadhyay
(supra) cited by counsel for the respondent No.2, where courts have been
cautioned to act with circumspection in matters relating to contempt.
38. Ordinarily, persons who are not parties in a case where orders of
injunction are passed, ought not to be proceeded against for disobeying the
injunction order. However, in cases where it is contended and proved that
the person who has violated the order of injunction, was aware of passing of
the said order, then proceedings can certainly be initiated against such a
person for wilful breach of the injunction order. The aforesaid legal
proposition and the liability of a third party for contempt dates back to the
19th Century, as was expounded in the cases of Seaward vs. Paterson & Ors.,
(1897 1 CH 545) and Hadkinson vs. Hadkinson (1952 2 All 567), followed
by the decision in the case of S.N. Banerjee vs. Kuchwar Lime and Stone
Co. Ltd. (AIR 1938 PC 295). The principles enunciated in the aforesaid
decisions have been adopted by courts in India over the years in several
judicial pronouncements. [Ref: Vidya Charan Shukla vs. Tamil Nadu
Olympic Association & Anr., AIR 1991 Mad 323].
39. For taking action of contempt against a person who may not
necessarily be impleaded in the suit, but has notice of an order, there must
be sufficient material on record that can demonstrate that he is guilty of
violating the injunction order or abetting/aiding such violation. At the same
time, a party against whom allegations of violation of an injunction order are
leveled, is entitled to prove his innocence by demonstrating that the order
passed was not to his knowledge or that the order was ambiguous and
reasonably capable of more than one interpretation or that he did not have
the intention to disobey the said order, but had conducted himself in
accordance with his own bona fide interpretation of the said order. The view
taken above finds resonance in the cases of Ram Chand Verma (supra),
Komal Nagpal (supra) and Bundu (supra), relied on by learned counsel for
the respondent No.2. In the case of Mohd. Sharfuddin (supra) relied on by
both sides, a Division Bench of the Andhra Pradesh High Court had opined
as follows:-
"22. As can be seen from the aforesaid decisions, injunction is a
remedy „in personam‟ and not in rem. But at the same time, it is
also cannot be disputed that a person who aids and abets and
violates the order of the Court is also liable for contempt of the
Court.
23. The prime question is whether the persons who are not
parties to the proceedings when the Order was passed can be
made liable for the violation of the Orders of the Court. It is
beyond the pale of controversy that the Order binds the parties
till such time they are in subsistence and they are liable for
consequences for violation of the Orders. It is also basic
principle that the person who is not a party to the
proceedings cannot be proceeded with against them for the
violation of the Order, but yet the third party cannot be
said to absolve himself of this situation in certain
circumstances. This issue came up for consideration in English
Court more than a century ago and it was held that the
disobedience of the Order by a person who is not a party to the
proceedings held to amount to contempt as it interfere with the
administration of justice. In Seaward's case (supra), it was held
that the Court has jurisdiction to commit for contempt, a person
not a party to the action, who knowing of an injunction, aids
and abets the injunction in breaching it. This principle was
again reiterated in Acrow (Automation) Limited v. Rex
Chambelt Inc. (1971)3 All.ER 1175).
xxx xxx xxx
27. We have to consider the matter within the framework of
Order 39, Rule 2-A and the said provision did not clearly
rule out as to a person against whom the injunction was
granted alone can be punished for violation. On the other
hand, it is clearly stated in the provision "a person guilty of
disobedience or breach of injunction Order" is liable for the
consequences under Rule 2-A. It cannot be disputed that an
order of the Court has to be respected by the parties who
are bound by it. But, it does not mean that it should be
disrespected by the parties who are not bound by it.
Therefore, every effort has to be made to implement the order
of the Court and not to disobey the same. (emphasis added)
40. In the instant case, the three sets of orders passed in the suit
proceedings of which the petitioner claims that the respondents are in
contempt, are dated 27.02.2013, 29.05.2015 and 24.08.2015. The grievance
raised is that though the respondents are well aware of the above orders,
they are in breach, having transferred a part of the Qutub Minar property to a
third party.
41. On 27.02.2013, counsel for the respondent No.1 (defendant No.2 in
the suit) had undertaken to maintain status quo with regard to the title and
possession of several movable and immovable properties including the
Qutub Minar property. On the said date, learned counsel had appeared for
the defendant No.4/HUF, of which the respondent No.2 herein has been
described as the Karta and had also agreed to maintain status quo in respect
of the property situated in Churiwalan, Delhi and had clarified that there
were no clear instructions in respect of the status of the Golf Link property.
The order passed on 27.2.2003, was in the presence of the counsel for the
defendant No.4/HUF but she had neither checked the counsel for the
respondent No.1, who undertook to maintain status quo in respect of the suit
properties including the entire unit at Qutub Minar, nor did the counsel
clarify to the court that in view of the physical division of the Qutub Minar
property having purportedly been effected between the respondent No.1 and
the respondent No.2, prior to institution of the suit, the respondent No.1 had
no authority to state that he and his sister (defendant No.3 in the suit) shall
maintain status quo with regard to the title and possession of the entire
Qutub Minar property. As a result, it was expected of all the aforesaid
parties to maintain status quo in respect of the suit properties including the
entire Qutub Minar property.
42. The next relevant order was passed on 29.05.2015, on which date, the
respondent No.1 (defendant No.2) and the defendant No.3 in the suit were
restrained from selling, transferring, alienating or parting with possession of
some movable and immovable properties, subject matter of the suit and the
respondent No.2 herein was specifically restrained from selling, transferring,
alienating or parting with possession of the immovable property at
Churiwalan, Delhi. Again on 24.08.2015, only the counsel for the
respondent No.1 (defendant No.2) and the defendant No.3 chose to appear
and she undertook on behalf of her clients to abide by the statement made on
their behalf on 27.02.2013, till a decision is taken in the intra-court appeal
filed by them. Noting that none had been appearing for the defendant No.3
and defendant No.4/HUF, the interim order dated 29.05.2015, passed in
respect of the Churiwalan property was made absolute qua them and further,
they were restrained from selling, transferring, alienating or parting with
possession of their respective undivided shares in the immovable properties
mentioned in the stay application, which included the Qutub Minar property.
43. There is no manner of doubt that the orders passed on 27.2.2013,
29.5.2015 and 24.8.2015 in the suit, when read collectively, had clearly and
unequivocally restrained the defendants from selling, transferring, alienating
or parting with possession of several suit properties including the Qutub
Minar property. Further, records reveal that the orders dated 27.2.2013 and
29.5.2015 were passed in the presence of the counsels appearing for the
respondents. Once the respondents had entered appearance through their
respective counsels in the suit proceedings, it cannot be urged by them that
on their absenting themselves later on, a duty was cast on the petitioner
(plaintiff) to apprise them of any injunction order passed subsequently. The
records also reveal that the respondent No.1 was being represented by a
counsel throughout the suit proceedings, particularly on the dates when the
injunction orders were passed. As for the respondent No.2, despite the fact
that he was not arrayed in the suit as a defendant in his individual capacity
and was described as the Karta of the defendant No.4/HUF, he was
appearing through a counsel in the suit till as late as 27.4.2015.
44. The seriatim of events noted above, also demonstrate that the
respondent No.2 had vigorously pursued an application ostensibly filed by
the defendant No.4/HUF under Order VII Rule 11 CPC, seeking rejection of
the plaint and on 22.02.2013 his counsel had stated in so many words that
the said application may be treated as one filed by the respondent No.2
herein, in his individual capacity. She had further sought time to obtain
instructions from her client with regard to certain averments made in the
said application on the ground that the defendant No.4/HUF, as arrayed in
the suit, did not exist any longer and the suit was bad for misjoinder.
Subsequently, respondent No.2 had moved an application under Order I
Rule 10(2) CPC asking for deletion of the defendant No.4/HUF from the
array of the defendants (I.A. No.3170/2013), which was dismissed by the
learned Joint Registrar vide order dated 18.04.2013. The said order has
recorded the submission of the counsel for the respondent No.2/applicant
that since the defendant No.4/HUF had ceased to exist, it cannot be allowed
to continue in the array of parties and that some of the properties mentioned
in the plaint are the personal properties of the respondent No.2 herein. The
said order noted that prior thereto, the respondent No.2 had stated that he did
not wish to seek impleadment in the suit though earlier thereto, his counsel
had made a statement that an application moved by the defendant No.4/HUF
under Order VII Rule 11 C.P.C., may be treated as having been filed by the
respondent No.2 herein, (Shri Ashok Kumar Nath) in his individual
capacity. Holding that Shri Ashok Kumar Nath cannot be permitted to take a
plea that the defendant No.4/HUF had ceased to exist, the said application
was dismissed. Although the said order passed by the learned Joint Registrar
was appealable, the respondent No.2 elected not to file any Chamber
Appeal. In fact, after 27.04.2015, counsel for the respondent No.2 had
abruptly stopped appearing in the suit proceedings. Later on, vide order
dated 14.09.2015, both, defendant No.3 and defendant No.4/HUF were
proceeded against ex-parte. Neither have sought recall of the above order till
date.
45. For the sake of argument, even if it is accepted that the respondent
No.2 had no knowledge of the restraint order dated 24.8.2015, knowing very
well that the intra court appeal [FAO(OS) 217/2013] filed by the respondent
No.1 against the suit order dated 11.2.2013, was pending and vide order
dated 27.5.2015, the Division Bench had vacated the stay order granted
earlier and permitted the suit to be proceeded with further, it was the duty of
the respondent No.2 to have kept a track on the matter. The explanation
offered by the respondent No.2 that till the date he was served with a copy
of the contempt petition, he had no knowledge of passing of the order dated
27.5.2015 by the Division Bench or of the injunction order granted on
24.8.2015 in the suit proceedings cannot cut any ice, more so when, as per
his own case, his personal properties were at stake in the partition suit
instituted by the petitioner and her sibling.
46. Given the aforesaid factual position, this Court does not find any
merit in the plea of the respondent No.2 that it was the duty of the petitioner
to have informed him of passing of the injunction order dated 24.8.2015 or
that he cannot be proceeded against for contempt since he has not been
arrayed as a defendant in the suit. It is clear from the sequence of events
noted above that the respondent No.2 was all along in the know of the suit
proceedings, had an interest in some of the suit properties and was aware of
the injunction orders passed therein from time to time. The alleged interse
friction between the two respondents cannot be of any assistance to the
respondent No.2 who ought to have made efforts of his own to have kept
abreast of the proceedings in the suit, having engaged a separate counsel to
protect his interests.
47. The settled position of law is that once a person has violated an
injunction order of the court, irrespective of the result in the main
proceedings, he is liable for contempt. In the case of Hadkinson vs.
Hadkinson (1952 2 ALL 567), the Court of Appeal had observed as below :-
"23. It is the plain and unqualified obligation of every
person against, or in respect of whom an order is made
by a court of competent jurisdiction to obey it unless and
until that order is discharged. The uncompromising
nature of this obligation is shown by the fact that it
extends even to cases where the person affected by an
order believes it to be irregular or even void. Lord
Cottenham, L.C., said in Chuck v. Cremer. „A party, who
knows of an order, whether null or valid, regular or
irregular, cannot be permitted to disobey it.... It would be
most dangerous to hold that the suitors, or their solicitors,
could themselves judge whether an order was null or valid
whether it was regular or irregular. That they should come to
the court and not take upon themselves to determine such a
question. That the course of a party knowing of an order,
which was null or irregular, and who might be affected by it,
was plain. He should apply to the court that it might be
discharged. As long as it existed it must not be disobeyed.‟
Such being the nature of this obligation, two
consequences will, in general follow from its breach. The
first is that anyone who disobeys an order of the court
(and I am not now considering disobedience of orders
relating merely to matters of procedure) is in contempt
and may be punished by committal or attachment or
otherwise. The second is that no application to the court
by such a person will be entertained until he has purged
himself of his contempt." (emphasis added)
48. The purpose of granting an injunction in favour of the petitioner
herein and her sibling was to preserve their rights in the suit properties, till
the disposal of the suit. Once the restraint orders were passed, they were
required to be complied with in letter and spirit, not only by those arrayed as
defendants in the suit, but by all others who had notice thereof, including
the respondent No.2 herein, who was admittedly impleaded as a Karta of the
defendant No.4/HUF. Given the facts of the present case and the legal
position as discussed above, it cannot be urged by either of the respondents
that the restraint orders granted in respect of the suit properties, including
the Qutub Minar property, were not within their knowledge or that the said
orders were capable of more than one interpretation.
49. The Court next proceeds to examine as to whether the petitioner has
made out a case for contempt of court against both the respondents or any
one of them. The respondent No.1 has sought to explain in his reply affidavit
that he and the respondent No.2 had executed a Memorandum of Family
Settlement in respect of the Qutub Minar property prior to the institution of
the suit and the portion of the said property in respect whereof the petitioner
claims violation of the injunction orders, has fallen to the share of the
respondent No.2 and therefore, he is not in breach of the orders of this
Court. Respondent No.1 had further stated that he has been maintaining
status quo in terms of the restraint orders with respect to Block-A portion of
the Qutub Minar property, that has fallen in his share. The petitioner has not
been able to demonstrate that the respondent No.1 has committed a breach
of the injunction orders or he has aided or abetted the respondent No.2 in
any manner in violating the said orders, so as to hold him guilty of contempt
of court. Accordingly, the notice of contempt issued to the respondent No.1,
is discharged.
50. Coming next to the respondent No.2, all kinds of lame excuses have
been offered on his behalf to urge that he has not violated the restraint
orders. The respondent No.2‟s plea that he is not on talking terms with his
cousin, respondent No.1 herein and was not apprised of the injunction order
dated 24.8.2015 or that the petitioner having failed to implead him as a
defendant in the suit, he could not bound down by the said order or that the
Qutub Minar property having already been partitioned by metes and bounds
between him and respondent No.1, no prejudice was caused to the petitioner
on creation of a tenancy in the portion that had fallen to his share in Block-
B, are of no consequence when it comes to deciding as to whether he had the
knowledge of the restraint orders and if so, whether he is in violation
thereof. It has already been observed that respondent No.2 cannot get away
from the fact that he had knowledge of the restraint orders passed in the suit.
Feigned ignorance of the said orders cannot be treated as bliss.
51. In order to decide as to the manner in which the respondent No.2 has
violated the interim orders, it is imperative to examine the lease deed dated
14.07.2016, executed by him as the lessor. It transpires therefrom that the
respondent No.2 has leased out an area measuring 1600 sq. ft. in the Qutub
Minar property to an entity by the name of M/s. Surya Design Line Pvt.
Ltd., initially for a period of three years, with a maximum of two extensions
of a block of three years each with 20% increase in rent for each extension.
The agreed rent of the leased portion is Rs.4,00,000/- p.m., commencing
from July, 2016. The interest free refundable security deposit received by
the respondent No.2 is to the tune of Rs.24,00,000/-. The first two paras of
the recital in the Lease Deed are reproduced herein below for ready
reference:-
"WHEREAS the LESSOR is the absolute & lawful owner in
possession of property No.1AQ, Sri Aurobindo Marg, Mehrauli,
New Delhi-110030, hereinafter called and referred to as „the
said property‟;
AND WHEREAS the Lessee after having inspected the title
documents, carried out due diligence and physically inspected
the property, has satisfied itself regarding the title, ownership,
possession and status of the said property, has requested the
LESSOR to lease out 1600 sq.ft. (approximately) of constructed
area in the said property for a period of 3 years with maximum
2 extensions of 3 years each with 20% increase in rent upon
each extension."
52. A glance at the above document shows that the respondent No.2 has
described himself as the "absolute and lawful owner in possession" of the
entire Qutub Minar property, without making any reference to any distinct
block carved out therefrom and vested in him in terms of the Memorandum
of Family Settlement purportedly executed by him and the respondent No.1,
as sought to be urged in the course of arguments. Nor has a site plan of the
demarcated area leased out to the lessee, been enclosed with the lease deed.
Even in the petition jointly filed by the respondents No.1 and 2 before the
ATMCD, describing themselves as partners of Indian Cottage Industries,
there is no mention of any partition of the Qutub Minar property or the fact
that each of them are in occupation of their respective distinct portions. In
any event, the order dated 24.8.2015 had restrained the defendant No.3 and
defendant No.4/HUF in the suit from selling, transferring, alienating or
parting with possession of their respective undivided shares in the suit
properties. So the respondent No.2‟s plea of being in distinct possession of a
particular portion of the Qutub Minar property, will not be of any avail.
53. From the above facts and circumstances, it clearly emerges that the
respondent No.2 had knowledge of the restraint orders passed in the suit and
he is in wilful disobedience of the said orders, having deliberately proceeded
to lease out a portion thereof to a third party in terms of the Lease deed
dated 14.7.2016. Accordingly, he is held guilty of contempt of court.
Consequently, any document of transfer, temporary or permanent executed
by him during the operation of the restraint orders, has to be declared as
illegal. Having held so, it is imperative to direct restoration of status quo
ante in respect of the Qutub Minar property, as existing on 24.8.2015. It is
therefore declared that the lease deed dated 14.07.2016, executed by the
respondent No.2/contemnor in favour of M/s Surya Design Line Pvt.
Limited has no sanctity in the eyes of law and is invalid. Recognizing any
such document executed in violation of court orders would tantamount to
conferring legitimacy on the contumacious acts of the respondent No.2,
which is impermissible. The view expressed above finds affirmation in the
case of Clarke vs. Chadburn, reported as (1985) 1 All England Reports,
211, wherein it was held that any act done in wilful disobedience of an
injunction order of the court is not only a contempt of court, but also an
illegal and invalid act which could not affect any change in the rights and
liabilities of others. Similarly, in the case of Satyabrata Biswas & Ors. vs.
Kalyan Kumar Kisku & Ors. (AIR 1994 SC 1837), wherein taking note of
the fact that a sub-tenancy was created during the operation of a status quo
order, the Supreme Court had declared the said sub-tenancy as in violation
of the status quo order and had relegated the parties to the position as
existing on the date of the status quo order, by observing as follows:-
"26.... Such an order cannot be circumvented by parties with
impunity and expect the court to confer its blessings. It does not
matter that to contempt proceedings Somani Builders was not a
party. It cannot gain advantage in derogation of the rights of the
parties, who were litigating originally. If the right of sub-
tenancy is recognized, how is status quo as of 15.9.1988
maintained? Hence, the grant of sublease is contrary to the
order of status quo. Any act done in the teeth of the order of
status quo is clearly illegal. All actions including the grant of
sub-lease are clearly illegal." (emphasis added)
54. The next question that arises is whether the present case calls for
imposition of punishment on the respondent No.2/contemnor as
contemplated in law. It is worthwhile to note that nowhere in his affidavit,
has the respondent No.2 offered any apology, qualified or unqualified while
praying for discharge of the notice of contempt. In fact, the petition has been
hotly contested by the respondent No.2 and his stand all along has been that
no order of restraint could have been passed on 24.08.2015, in respect of the
assets owned by him, including the Qutub Minar property and that he was
never made aware of the said order. Fact of the matter is that even after the
order dated 24.08.2015 came to the knowledge of the respondent
No.2/contemnor, he did not offer to purge himself of the contempt during
the pendency of the present proceedings, nor has he demonstrated any
penitence, contrition or regret at any stage. Despite the above, having regard
to the fact that the respondent No.2 is a senior citizen, aged 67 years, the
Court is taking a lenient view. It therefore refrains from directing his
detention in civil imprisonment for his contumacious conduct. At the same
time, it is felt that interest of justice would be adequately met if attachment
orders are passed in respect of the leased out portion of the Qutub Minar
property.
55. As the lease deed dated 14.07.2016 executed by the respondent
No.2/contemnor in respect of a part of the Qutub Minar property has been
held to be in gross violation of this Court‟s orders and the same has been
declared as illegal and invalid, the leased out portion is hereby attached. The
lessee, M/s Surya Design Line Pvt. Limited is directed to vacate the portions
of the Qutub Minar property under its occupation in terms of the lease deed
and deposit the keys thereof in the Registry within one month from the date
of service of the present orders on them. The lessee is permitted to retain the
subject premises for a period of four weeks so as to make alternate
arrangements in that duration on the condition that it shall file an affidavit
within one week, undertaking inter alia not to part with possession or create
any third party interest therein till the keys are deposited. Any further
rent/occupation charges due or payable in respect of the leased premises
shall be deposited by the lessee directly in the Registry.
56. Furthermore, this Court is of the view that the respondent
No.2/contemnor cannot be permitted to enjoy the fruits of an invalid and
illegal lease deed and he must be made to feel the pinch by disgorging the
profits earned by him as rent, @ Rs.4.00 lacs per month w.e.f. July, 2016,
till the leased out portion is vacated. It is therefore directed that the
respondent No.2/contemnor shall deposit the entire rent received by him in
respect of the Qutub Minar property in the Registry within four weeks from
the date of passing of this order. Immediately upon receipt of the aforesaid
amount, the Registry shall place the same in a FDR, initially for a period of
one year, to be renewed thereafter from time to time, till appropriate orders
for disbursement are passed in the suit. Additionally, since the respondent
No.2/contemnor has been earning interest w.e.f. July, 2016 onwards, on the
interest free security deposit of Rs.24.00 lacs deposited by the lessee, he is
directed to deposit the interest component which, having regard to the fact
that he is a senior citizen, is calculated at a conservative rate of 7% p.a., as is
being paid by Banks/Financial Institutions on FDRs. The aforesaid amount
reckoned from July 2016, till the date the interest free security amount is
refunded to the lessee, shall be deposited by the respondent No.2/contemnor
in the Registry within four weeks. The Registry shall place the said amount
in a FDR, as directed above. While making compliances, a computation of
the period for which the rent is being deposited and the interest earned on
the security deposit at the rate mentioned above, shall be separately
furnished by the respondent No.2/contemnor on an affidavit within four
weeks. Release of the aforesaid amounts are made subject to the final
outcome of the pending suit.
57. The petition is partly allowed on the above terms alongwith litigation
costs quantified at Rs.30,000/-, payable by the respondent No.2/contemnor
to the petitioner within four weeks. It is made clear that the view expressed
above is limited to the disposal of the present contempt petition and this
Court has refrained from making any observations on the merits of the pleas
taken by the parties in the suit, which is pending disposal.
58. List on 10.11.2017, for reporting compliance of the orders passed
above by the respondent No.2/contemnor and the lessee, M/s Surya Design
Line Pvt. Ltd.
OCTOBER 11, 2017 HIMA KOHLI, J
sk/rkb/ap/na
