Kantilal Mohanbhai Zalawadia vs Jivanbhai Parshottambhai Patel
2021 Latest Caselaw 18118 Guj

      C/MCA/1021/2012                            ORDER DATED: 06/12/2021




        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/MISC. CIVIL APPLICATION NO. 1021 of 2012

             In R/MISC. CIVIL APPLICATION NO. 1735 of 2011


                                    With

              R/MISC. CIVIL APPLICATION NO. 1735 of 2011
                                   In
                 APPEAL FROM ORDER NO. 102 of 2010

=============================================

                        KANTILAL MOHANBHAI ZALAWADIA

                                   Versus

                JIVANBHAI PARSHOTTAMBHAI PATEL & 3 other(s)

=============================================
Appearance:
MR JV JAPEE(358) for the Applicant(s) No. 1
MR DAKSHESH MEHTA(2430) for the Opponent(s) No. 1
MR JA ADESHRA(107) for the Opponent(s) No. 3
MR NV GANDHI(1693) for the Opponent(s) No. 2
RULE SERVED(64) for the Opponent(s) No. 4
=============================================

 CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE
       ARAVIND KUMAR
       and
       HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

                             Date : 06/12/2021

                          COMMON ORAL ORDER

(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)

[1] These two contempt petitions or applications are

taken up together since order passed in one of the

petitions will have direct bearing on the other.

C/MCA/1021/2012 ORDER DATED: 06/12/2021

[2] We have heard Shri J. V. Japee, learned counsel

appearing for the complainant in both the petitions and

Shri Dakshesh Mehta, learned counsel appearing for

respondent No.1, Shri N. V. Gandhi, appearing for

respondent No.2 and Shri J. A. Adeshra, learned advocate

appearing for respondent No.3. We have perused the

case papers.

[3] These two applications have been pending for the

last 11 years 2 months and on account of Registry having

been directed by this Court to list all old matters, these

two matters have seen the light of the day, namely, they

have come on board and as such fervent request made by

learned counsel for the complainant for grant of

adjournment has been refused on the ground that these

matters are pending from last one decade.

[4] The facts shorn of unnecessary details can be

crystallized as under:-

[4.1] The complainant herein filed a suit for specific

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performance against the first respondent herein in Special

Civil Suit No.23 of 2009 (re-numbered as Special Civil Suit

No.12 of 2017) which is still pending. An application

came to be filed by the complainant in the said suit herein

for grant of temporary injunction under Order XXXIX Rule

1 and 2 of the Code of Civil Procedure, which was

dismissed by the trial court by order dated 11.01.2010.

Appeal against the said order filed an Appeal From Order

No. 102 of 2010 was filed which came to be disposed of by

order dated 05.05.2010 by the learned Single Judge of this

Court on the strength of a statement made by the learned

advocates, which also came to be recorded, and we

extract the same for the purpose of immediate reference.

It reads:

"in view of the settlement arrived at between the parties, learned advocate for the appellant requests that the order impugned may be substituted by the terms of settlement".

[4.2] The settlement was to the effect that suit schedule

property would not be sold by 1 st respondent. Alleging

violation of this order, Misc. Civil Application No.1735 of

2011 has been filed. In the said contempt proceedings,

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several orders, directions and injunctions have been

passed / issued. Suffice to state that directions,

injunctions of vital importance came to be issued by this

Court which was adjudicating present the Misc. Civil

Application No.1735 of 2011 by order dated 15.09.2011.

[4.3] Alleging that this directions issued in Misc. Civil

Application No. 1735 of 2011 on 15.09.2011 are violated,

the contempt proceedings in Misc. Civil Application

No.1021 of 2012 has been filed in which petition /

application also several orders, directions and injunctions

have been issued. As such, we have taken up these two

applications together for consideration and passing a

common order.

[4.4] At the outset, it requires to be noticed that it is trite

law that when this Court is exercising the jurisdiction

under Section 11 of the Contempt of Courts Act, 1971, it

would examine as to whether there is any disobedience or

willful disobedience of the order which is complained of. If

the answer is in the affirmative, necessarily after framing

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the charge, recording the plea, recording the evidence

and thereafter recording the plea of the accused this Court

would either punish the accused if found guilty or acquit.

Issuing of interim orders or directions, injunctions is alien

to these proceedings under Section 11 of the Contempt of

Courts Act and beyond the scope of this proceedings. For

this proposition judgment of the Hon'ble Apex Court in

case of V. Senthur and Another versus M.

Vijayakumar, IAS, Secretary, Tamil Nadu Public

Service Commission and Another reported in 2021

SCC OnLine SC 846 can be looked up. However, if this

Court after having found that there has been willful

disobedience of the order and after having convicted the

accused for the charge for which he or she has been

proceeded with the illegality that has been committed

would be redone to ensure that stream of justice is not

polluted or in other words clock would be put back so that

complete justice is done.

[4.5] Keeping these salutary principles in mind when we

examine the facts on hand, it would clearly indicate that in

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a simple suit for specific performance the plaintiff who

claimed to be in possession of the suit scheduled property

by virtue of the agreement of sale executed by

respondent No.1 filed an application for temporary

injunction under Order XXXIX Rule 1 and 2 as noticed

hereinabove. The said application, after contest, came to

be dismissed by order dated 11.01.2010. The aggrieved

plaintiff pursued his grievance before this Court in Appeal

From Order No. 102 of 2010 in which proceedings, the

learned advocates filed an agreement said to be the terms

upon which the parties had settled the disputes. This

terms of settlement has been taken on record by the

learned Single Judge of this Court and disposed of the

appeal in terms of said settlement. At this juncture itself it

requires to be noticed that prima facie said settlement

arrived at between the parties is not in consonance with

Order XXIII Rule 3 of the Code of Civil Procedure, which is

not in dispute and particularly the terms of the settlement,

which is at Annexure-C is said to have been entered into

between the parties. We say so for the simple reason that

none of the parties were before this Court when

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settlement was recorded. They have not been examined

or the contents of the Settlement Deed was not read over

to them in the open Court by the Court. As to whether

that it is in due compliance with the provisions of Code of

Civil Procedure namely Order XXIII Rule 3 or not is an issue

which we will not examine and we would not express any

opinion in this regard particularly in the background of

respondent herein having disputed the same before this

Court and also before the learned Single Judge by filing an

application for review in Misc. Civil Application (Stamp)

No.2350 of 2011, which is said to be still pending before

the learned Single Judge. Any attempt made by this Court

to express any opinion in that regard is likely to prejudice

the rights of the parties in the said Review Application.

That apart, we also notice that cognate Bench by order

dated 15.09.2011 passed in Misc. Civil Application

No.1735 of 2011 has also clearly expressed in paragraph

No. 15 to the following effect:-

"(15) If the time gap between the order passed by this Court is considered, it was as back as on 05.05.2010, whereas the present proceedings are initiated by the cognizance of this Court on 11.07.2011, roughly after more than one year, that too after one alleged sale deed is executed by opponent No.1. Further the criminal complaint is of January, 2010,

C/MCA/1021/2012 ORDER DATED: 06/12/2021

whereas the settlement is of March, 2010 and it was admitted before the Court in May 2010. ........."

[4.6] We do not propose to finally conclude on the aspect

of genuineness of the settlement or otherwise since said

question may be required to be considered by the Civil

Court at the appropriate stage, if such contingency arises.

Further, the learned Single Judge in the review may also, if

deems it proper, examine the said aspect.

[5] The fact remains that the issue relating to the

genuineness of the settlement is still at large in the review

application and both parties would be at liberty to work

out their rights in the said review application. That apart,

this Court in the order dated 15.09.2011 had also granted

liberty to the learned Civil Judge adjudicating Special Civil

Suit No.12 of 2017 to examine all aspects including the

aspect of genuineness of the settlement and for this

reason also we refrain from expressing any opinion on the

alleged settlement arrived at.

[6] It would not be out of context to refer at this juncture

that the Co-ordinate Bench which had granted an interim

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injunction by its order dated 15.09.2011 had also directed

that operation and implementation of the sale deed dated

13.06.2011 would remain stayed and suspended qua the

rights of the applicant for the land in question which is the

subject matter of Special Civil Suit No.23 of 2009 (New

number as Special Civil Suit No.12 of 2017). Such

directions would be outside the scope of the proceedings

as already observed hereinabove since exercising the

power under Section 11 of the Contempt of Courts Act

would only be examining the contemptuous act committed

by a contemner namely to examine as to whether

contemner has willfully disobeying the order and if found

to be so, punish him / her for such act. Issuing of

temporary or ad-interim injunction would not arise. Be

that as it may. The fact that said injunction which had

been granted, is now the subject matter in Misc. Civil

Application No.1021 of 2012, cannot be lost sight of and it

has been filed for violation of the order dated 15.09.2011

passed in Misc. Civil Application No.1735 of 2011. Even in

the second contempt, several directions of appointing an

investigating officer namely the District Superintendent of

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Police, Navsari to ascertain as to who is in possession of

the property has also been undertaken by this Court

intriguingly, which was alien to the scope of these

proceedings as could be discerned from the order dated

02.07.2013. In fact possession of the suit property has

been taken to the custody of the Court, namely, the

possession of the suit scheduled property has been

ordered to be taken over by the Registrar, District Court,

Navsari and he has been appointed as a Court

Commissioner to take possession of the land (disputed

land), namely, the suit scheduled property with the help of

the Police. It is stated by the learned advocates appearing

for the parties that possession of the suit property now

vests with the civil court and for the past 10 years neither

of the parties are in possession of the suit property and it

is stated that Court Receiver or the Court Commissioner is

in possession and enjoyment of the said property and he

is said to have been depositing the proceeds or the

usufructs or the profits earned from the land in the Court

namely in Special Civil Suit No.12 of 2017 (old number as

Special Civil Suit No.23 of 2009). In both the orders,

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namely, 02.07.2013 as well as 15.09.2011 the Co-ordinate

Bench has observed to await orders of the civil court

which was not warranted, inasmuch as the issue as to

whether petitioner is entitled for specific performance and

as to whether the defendant No.1 i.e. respondent No.1

herein, in contravention of the agreement of sale had sold

the property to other defendants and as to whether there

was a settlement entered into between the parties are all

issues which requires to be thrashed out after a fullfledged

trial before the civil court in the pending suit i.e. Special

Civil Suit No. 12 of 2017 (Old number as Special Civil Suit

No.23 of 2009) and as such keeping this contempt

proceedings pending would only be burdening the Court

records and no fruitful purpose would be served, but, on

the other hand, it would act counterproductive, namely,

the trial court would not proceed with the suit and in spite

of observations made in the earlier orders, there seems to

have no progress of the case and it is said to be moving at

a snail's pace. As such, reserving liberty to both the

parties to work out their rights in the pending suit, the

contempt proceedings stand dropped.

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[7] It is apt and appropriate to observe at this juncture

that apart from this Court having observed on earlier

occasions that trial court should proceed to adjudicate all

the disputes and particularly on 08.08.2013 granting

liberty to both the parties to move the Civil Judge for

earlier disposal of the suit it seem to have had no effect.

Hence, we reiterate the said order to the said extent only

and request the learned Civil Judge, Navsari adjudicating

Special Civil Suit No. 12 of 2017 (old number as Special

Civil Suit No.23 of 2009) to take up the matter by following

the procedure prescribed under the case management

rules expeditiously.

[8] With these observations, the contempt proceedings

stand closed. Rule discharged. Interim relief, if any,

stands vacated.

(ARAVIND KUMAR, C.J.)

(ASHUTOSH J. SHASTRI, J.) DHARMENDRA KUMAR