P.S- Dibrugarh vs Santoshi Agarwalla And Anr
2023 Latest Caselaw 4535 Gua

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GAHC010215042023




                        THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                         Case No. : Cont.Cas(C)/215/2023


         MANSUR ALI AHMED
         S/O- NIZAMUDDIN AHMED

         R/O- NEAR TV CENTER
         P.O- CR BUILDING

         P.S- DIBRUGARH
          DIST- DIBRUGARH
         ASSAM
          PIN-786001


          VERSUS

         SANTOSHI AGARWALLA AND ANR
         W/O- SANJAY AGARWALLA

         R/O- MANCOTTA TOM TOM TULA

         P.O- MANKOTTA
          P.S AND DIST- DIBRUGARH
         ASSAM
          PIN-786001

         2:SANJAY AGARWALLA
         R/O- MANCOTTA TOM TOM TULA

         P.O- MANKOTTA
          P.S AND DIST- DIBRUGARH
         ASSAM
          PIN-786001
          ------------
         Advocate for : MR SISHIR DUTTA
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           Advocate for : MR. P J SAIKIA
           SR. ADV (R-1AND 2) appearing for SANTOSHI AGARWALLA AND ANR



                                BEFORE
           HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

                                           ORDER

Date : 07.11.2023

Heard Mr. S. Dutta, learned senior counsel assisted by Mr. A. Biswas, learned counsel for the contempt petitioner. Also heard Mr. P.J. Saikia, learned senior counsel assisted by Mr. R.S. Mishra, learned counsel for the respondent contemnors.

2. The contempt petitioner instituted Title Suit No. 166/2022 in the Court of learned Civil Judge, Dibrugarh in respect of the suit property claiming a right of pre-emption. The respondent contemnors on the other hand as defendants take a stand that the suit property has been purchased by the defendants. In Title Suit No. 166/2022, Misc. (J) Case No. 126/2022 had also been instituted by the contempt petitioner plaintiff seeking for an injunction restraining the respondent contemnor defendants from taking possession of the premises. By the order dated 17.11.2022 in Misc. (J) Case No. 126/2022, injunction was refused upon a factual satisfaction having arrived that the respondent contemnor defendants were in possession of the suit premises. Being aggrieved, FAO No. 58/2022 was instituted by the contempt petitioner which was given a final consideration by the judgment and order dated 16.12.2022, wherein it was provided as extracted below:

"So, considering the entire facts and circumstances of this case, I find that modification of the order passed by the learned Court below is deemed necessary and hence, I find it justified to direct both the parties to maintain status quo over the suit property till disposal of the title suit. Accordingly, both the parties are hereby directed to maintain status quo Page No.# 3/6

over the suit property as on today and the learned Court below is directed to proceed with the case and shall dispose of the case expeditiously within 6 (six) months."

3. This contempt petition is instituted on an allegation that the respondent contemnors in spite of the order of status quo dated 16.12.2022, have been undertaking certain construction on the suit premises and to substantiate the allegation, reliance is placed upon a report of the Process Server dated 17.12.2022, wherein he stated that when he visited the disputed premises he found some workers working inside and outside in an under-construction shop. In the circumstance, the petition No. 5619/2022 by the contempt petitioner under Section 151 of the CPC was instituted with a prayer for a direction to the Officer-in-charge of Dibrugarh Police Station to implement the order of status quo dated 16.12.2022 passed in FAO No. 58/2022.

4. The trial Court while considering the petition No. 5619/2022 by its order dated 19.12.2022 considered the bailiff report dated 17.12.2022 which provided that the Process Server had captured certain photographs and video of the under-construction shop of both inside and outside and further that the husband of the respondent contemnor No. 1, namely, Sri Sanjay Agarwala had given a reply that he was working on his own property. Accordingly, by the order dated 19.12.2022, the learned trial Court deemed it appropriate that it was a fit case for taking police assistance for executing the status quo order of the High Court dated 16.12.2022 in FAO No. 58/2022.

5. Thereafter, the Sub-Inspector of Milan Nagar Out Post submitted a report dated 22.12.2022 before the learned trial Court wherein it is provided that he locally visited the disputed premises and found that no further construction was done but the opposite parties opened a hardware shop after repairing the front side of the shop.

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6. In the contempt proceeding, it is the stand of Mr. S. Dutta, learned senior counsel for the contempt petitioner that having undertaken the construction after the order of status quo, the respondent contemnors had wilfully and deliberately violated the order of the Court whereas on the other hand, it is the stand of Mr. P.J. Saikia, learned senior counsel for the respondent contemnors that they had all along been operating their shop and they had not undertaken any further construction in the shop premises and relies upon the report of the Sub-Inspector dated 22.12.2022 that they had undertaken certain repairing work in the front side of the shop.

7. On the aforesaid stand of Mr. P.J. Saikia, learned senior counsel for the respondent contemnors, Mr. S. Dutta, learned senior counsel for the contempt petitioner has urged upon that as on 16.12.2022 when the order of status quo was passed, no business was being carried out by the respondent contemnors and therefore even the act of conducting of business was a violation of the order of the status quo.

8. In the circumstance, we requested Mr. S.C. Keyal, learned counsel to make a local enquiry and submit a report as to whether as on 16.12.2022, the respondent contemnors were operating any business activity in the disputed premises. The report of Mr. S.C. Keyal, learned counsel dated 16.10.2023 reveals that certain GST returns of December, 2022 corroborated the statements of some of the customers of the shop of the respondent contemnors that they have purchased some items as on 12.12.2022 and 13.12.2022 and based upon such material, a report has been submitted that it has to be understood that as on 16.12.2022 the respondent contemnors were operating a business in some form or the other.

9. In view of the materials above, we have to understand that business in Page No.# 5/6

some form was being carried out by the respondent contemnors as on the said date when the order of status quo was passed on 16.12.2022. But at the same time, it cannot be accepted that the respondent contemnors would undertake any further construction work over the suit premises. Accordingly as a consequential relief in a contempt petition, we modify the earlier order of status quo dated 16.12.2022 to the extent that from the date of the present order i.e. 07.11.2023, no construction, modification, renovation or alteration in any form of the disputed property would be carried forward by the respondent contemnors. But at the same time, as some business was being carried out, the respondent contemnors are permitted to carry on the business in the manner they were conducting without any further alteration of the nature of the business that is already being carried on.

10. We also take note that the order of status quo dated 16.12.2022 which is alleged to have been wilfully and deliberately violated had imposed a time limit of six months for the actual dispute to be decided in the Title Suit No. 166/2022 and we have also taken note that the time limit of six months that has been fixed had already elapsed by more than five months. In this circumstance, the order dated 16.12.2022 is further modified to the extent that the entire proceeding shall invariably be completed within two months from the date of the present order i.e. 07.11.2023. If there is a delay in completing the proceeding because of any act or omission on the part of the respondent contemnors, the order of status quo as modified by the present order shall not operate any further on and from the completion of the two months from the date of the present order and the respondent contemnors are directed not to operate any activity including business activity from the disputed premises.

11. On the other hand, if any delay is caused because of any act or omission Page No.# 6/6

on the part of the contempt petitioner, for every day of such delay that may be caused, the contempt petitioner shall compensate the respondent contemnors in monetary terms commensurating with the business activities that was being carried out, but with a further condition that upon receiving the daily compensation, the disputed premises shall not be used for any purpose by the respondent contemnors. The learned trial Court is always at its own discretion to complete the proceeding on any date prior to the completion of two months meaning thereby, that the two months is to be considered to be outer limit.

12. Both the contempt petitioner and the respondent contemnors shall appear before the learned trial Court on 10.11.2023 and the learned trial Court shall make its endeavour to complete the proceeding within the time limit.

13. We further take note of the objection of Mr. S. Dutta, learned senior counsel for the contempt petitioner that the contempt petitioner is not satisfied with the report dated 16.10.2023. But at the same time, the parties shall not raise the said issue before the trial Court so as to avoid the possibility of the litigation be prolonged any further, and neither the report shall be construed to be a material for the trial Court as regards the contents therein.

14. Contempt petition stands closed as indicated above.

JUDGE

Comparing Assistant