Gujarat High Court
Bhodarbhai Vicchiyabhai Pargi vs Panglabhai Khatrabhai Damor on 1 February, 2024
Author: Umesh A. Trivedi
Bench: Umesh A. Trivedi, Rajendra M. Sareen
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C/MCA/254/2024 ORDER DATED: 01/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/MISC. CIVIL APPLICATION (FOR CONTEMPT) NO. 254 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 10267 of 2013
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BHODARBHAI VICCHIYABHAI PARGI
Versus
PANGLABHAI KHATRABHAI DAMOR
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Appearance:
MR BJ TRIVEDI(921) for the Applicant(s) No. 1,2
MR JT TRIVEDI(931) for the Applicant(s) No. 1,2
MS JIGNASA B TRIVEDI(3090) for the Applicant(s) No. 1,2
for the Opponent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
and
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
Date : 01/02/2024
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE UMESH A. TRIVEDI)
[1] This Misc. Civil Application No.254 of 2024 in Special
Civil Application No.10267 of 2013 is filed by the applicants
(Applicant No.2 is deleted as she is not a necessary party in the
matter, as mentioned in the cause-title by the applicant).
[2] By filing this application, the applicant sought to
invoke jurisdiction of this Court under the Contempt of Courts
Act, 1971 (for short "the Act") requesting to take action for
contempt under "the Act" against the respondents herein.
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Surprisingly, respondent No.3, who is District Superintendent of
Police of District - Dahod, was neither the party to the suit or
the Appeal or the proceedings before this Court in the aforesaid
Special Civil Application, he has been joined as party
respondent, which is according to us, not necessary at all to be
joined as party respondent in this proceedings.
[3] Respondent Nos.1 and 2 herein filed Special Civil
Suit No.34 of 2010 in the Court of 03 rd Additional Senior Civil
Judge, Dahod, District - Dahod, against the applicant as also
one Bai Khetiben Kidiyabhai Damor for declaration and
permanent injunction. At the same time, vide application Exhibit
- 5, they prayed for interim injunction against the applicant and
one another. On summons being issued and served, applicant
along with another filed an application Exhibit -13, praying for
counter injunction against the plaintiff praying to prevent them
or their servants, agents from entering upon the suit land or any
way interfering with the use of the same for the purpose of
agriculture. Both the applications, Exhibit -5 filed by respondent
Nos.1 and 2 and Exhibit - 13 filed by the applicant and one
another for counter injunction against respondent Nos.1 and 2
herein, came to be rejected by common order dated 11.08.2011
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passed by 03rd Additional Senior Civil Judge, Dahod.
[4] However, as coming out from the record, the
applicant along with another preferred an appeal being Civil
Misc. Appeal No.37 of 2011 challenging the order refusing
counter injunction against the original plaintiffs i.e. respondent
Nos.1 and 2. The learned Principal Judge, Dahod, vide judgment
and order dated 08.05.2013, dismissed the Civil Misc. Appeal
confirming the order passed by the learned Judge below Exhibit
- 13. The applicant along with another carried it further and
filed Special Civil Application No.10267 of 2013, wherein this
Court, after hearing the learned advocate for the petitioner,
admitted the same and granted interim relief in terms of para 6
(B) till the final decision of the petition aforesaid. Though memo
of aforesaid petition being Special Civil Application No.10267 of
2013 is not produced along with this application, learned
advocate for the applicant tendered it for the perusal of the
Court wherein para 6 (B) reads as under:
"6 [b] to stay the operation, execution and enforcement of the
judgment and the order delivered at exh. 16 in Misc. Civil
Appeal No.37 of 2011 by the learned Principal District Judge,
Dahod, on 08-05-2013 and to grant injunction, as prayed for
in the application [exh. 13] in Special Civil Suit No.34 of
2010, presently pending in the Court of the learned 3 rd
Additional Senior Civil Judge, Dahod, District Dahod, pending
the final disposal of the present petition;"
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[5] Admittedly, the aforesaid petition before the Single
Judge of this Court as also the suit are pending at present. In
the suit, the evidence on behalf of the plaintiffs is already over
and the case is posted for evidence on behalf of the defendants
since 26.12.2022. Since status of that case was available on the
website, we have downloaded the case details which suggest that
it has been adjourned several times and as on date also it is
posted for the evidence of the defendants. Learned advocate for
the applicant is not aware as to exact date and present status of
the case but according to him, not only the suit, the aforesaid
petition also posted for hearing in a recent past.
[5.1] Be that as it may, suit as also aforesaid SCA whereby
according to submission of the learned advocate for the
applicant - original defendant, injunction is granted by the
learned Single Judge of this Court are still pending as on date.
Along with the application, learned advocate for the applicant
produced several orders as also some photographs, copies of sale
deeds, an application addressed to the Officer of Superintendent
of Police, copies of Village Form No.7/12, 8-A etc.
[6] Drawing attention of the Court to the photographs, it
is submitted that respondent Nos.1 and 2 - original plaintiffs
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started construction on the disputed land in breach of injunction
granted by this Court in the aforesaid SCA. Therefore, he has
filed the present application praying for taking action for
contempt under "the Act" against respondent Nos.1, 2 as also
against respondent No.3, who is Superintendent of Police of the
District, who was not a party to the suit joined here in this case,
may be because application made to him to enforce an order of
injunction. He has vehemently submitted that breach of an
injunction granted by this Court amounts to contempt of this
Court, and therefore, action under "the Act", as prayed for, be
initiated against the respondent Nos.1 and 2 - original plaintiffs
as also respondent No.3 - the S.P. of the District.
[7] Relying on a decision in the case of Nareshbhai
Hathising Shah V/s Dinaben Jitendrabhai Thakar reported in
2014 LawSuit (Guj) 2024, it is submitted that in this case also
interim order / injunction granted by the High Court where
Court has taken an action in contempt and alleged contemnor is
punished, even refusing unconditional apology after dealing with
several judgments. Relying on the decision of the Supreme Court
in the case Amit Kumar Das V/s Shrimati Hutheesingh Tagore
Charitable Trust reported in 2024 INSC 73 being Civil Appeal
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No.1405 & 1406 of 2024, it is submitted that the Supreme Court
has also not only held the action of the concluded act in violation
of the status quo order in relation to possession of the suit
premises to be 'Civil Contempt' under Section 2(b) of "the Act",
merely vacating the stay order, an action of restitutive or a
remedying character should have been taken by the High Court
and case was remanded back to the High Court for that purpose,
though contemnor held guilty of willfully violating the status
quo. Referring to paragraph 13 of the aforesaid decision, it is
submitted that power vested in this Court as also the Supreme
Court to punish for contempt is a special and rare power
available both under the Constitution as well as under "the Act".
[8] Mr. B.J. Trivedi, learned advocate for the applicant,
further relied on a decision in the case of Patel Rajnikant
Dhulabhai V/s Patel Chandrakant Dhulabhai, referring to
paragraphs 46 to 49, submitted that this Court should initiate
action in contempt under "the Act" against the respondents.
Referring to the earlier decisions of the Supreme Court referred
in that case, it is submitted that it is concluded by the Supreme
Court in para 59 that punishing a person for contempt of Court
is indeed a drastic step and normally such action should not be
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taken. At the same time, however, it is not only the power but
the duty of the Court to uphold and maintain the dignity of the
Courts and majesty of law which may call for such extreme step.
It is further submitted that for proper administration of justice
and to ensure due compliance with the orders passed by a
Court, it is required to take strict view under "the Act",
it should not hesitate in wielding the potent weapon of "the Act".
(vehemently stressed by the learned advocate for the applicant)
In short, it is the submission of the learned advocate for
the applicant that this Court may take cognizance of contempt
committed by the respondents herein and initiate action under
"the Act" against them.
[9] Having heard the learned advocate for the applicant
and going through the record i.e. documents annexed with the
application as also supplied across the table by the learned
advocate for the applicant, it emerges that request to initiate
action in contempt bypassing equally potent power of the Court
which granted the injunction, as claimed by the learned
advocate for the applicant, may not be required for the reason
that not only the suit filed by respondent Nos. 1 and 2, as
plaintiffs, is still pending and pending at the stage of leading
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evidence on behalf of the applicants i.e. defendants, appearing to
be nearer to the conclusion, even aforesaid SCA which is filed
before learned Single Judge of this Court and order of injunction
granted by this Court, is also pending.
[10] To a pointed query by this Court, repeatedly, as to
exercise the jurisdiction under "the Act", bypassing already
equally potent remedy by way of proceedings under Rule 2A of
Order XXXIX of the Code of Civil Procedure, 1908 (for short "the
Code") would be permissible or not, more particularly petition
before Single Judge is pending for final hearing as also suit
awaits final conclusion on evidence to be concluded by the
applicant as defendant? To the said question, as such, there was
no clear answer from the learned advocate for the applicant but
it has been attempted to be said that this Court can certainly
initiate action under "the Act" as well. He was unable to show
any precedent on the point that when remedy under Rule 2A of
Order XXXIX of "the Code" is available, exercise of jurisdiction
under "the Act" would be permissible. Here, he is praying for an
action in breach of injunction granted by the learned Single
Judge of this Court, for which, there is a specific remedy
available under Rule 2A of Order XXXIX of "the Code", more
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particularly, when that very petition, in which said injunction is
ordered, is still pending. As such, suit itself is still pending, that
too, at his evidence stage. Not only that, determining willful
disobedience of order of injunction based only on photographs,
which may be or may not be of the same place, which is required
to be shown to the Court. By initiating action against them
under "the Code" where no willful disobedience of injunction
order is to be shown, only the disobedience, maybe willful or not,
is sufficient for initiating action under "the Code" for very breach
of injunction. Remedy under "the Act" is an extraordinary
remedy and when a remedy before the Court which granted the
injunction is already available under "the Code", more
particularly injunction application, breach of which is claimed is
still pending before Single Judge of this Court as also the whole
suit is pending against applicant for the conclusion on evidence
being led by him as defendant, we may not resort to that remedy
which may require so many fact finding activities to be
undertaken.
[11] Very fervent attempts are made by the learned
advocate for the applicant to suggest that it is a clear violation of
the injunction granted by this Court and it has to act upon it.
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However, that can be done by the learned Single Judge before
whom even main petition wherein injunction granted is already
pending, complaining breach of injunction under Rule 2A of
Order XXXIX of "the Code". Contempt jurisdiction of the Courts,
that too, under "the Act" is of course for the purpose of
upholding the majesty of judicial system that exists but at the
same time, while exercising this power, the Court must not be
hypersensitive or swung by emotions but must act judiciously
and that can very well be undertaken where main petition itself
is pending.
[12] The decision in the case of Nareshbhai Hathising
Shah (supra), relied on by the learned advocate for the applicant,
is also misplaced as it is not an authority on the point that
despite availability of remedy of invoking the jurisdiction under
Rule 2A of Order XXXIX of "the Code", Court can initiate an
action under "the Act". If the facts of that case is examined,
Court took action against the contemnor for breach of injunction
granted by High Court as it is evident from conclusion recorded
at paragraph 15.4, while awarding punishment upon opponent
No. 11 under "the Act" for breach of injunction under Rule 2A of
Order XXXIX of "the Code". If paragraph 2 of the said decision is
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seen, it is an application filed in pending Civil proceedings for
initiating appropriate proceedings for committing breach of
Court's order / interim order, however, as stated in that
decision, alleged contemnor is said to have played the mischief,
and therefore, even Court did not accept his apology but
punished him for action in contempt. However, it cannot be said
to be an authority or a precedent on the issue that when remedy
initiating action for breach of injunction under Rule 2A of Order
XXXIX of "the Code" is available and main petition before Single
Judge is still pending, whether any application can be moved for
initiating action under "the Act", which is altogether different
jurisdiction, more particularly, when the proceedings in which
the said injunction is granted, are still pending final
adjudication.
[13] Not only that, learned advocate has also filed this
MCA in that very proceedings being SCA No.10267 of 2013,
though praying for an action in contempt, though not pending
before this Division Bench but before the learned Single Judge.
Merely stating in the title as application for taking action under
"the Act", Registry should not have placed this matter for hearing
before this Court taking up contempt matters under "the Act",
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more particularly when action in contempt for breach of
injunction is sought for in that very pending SCA. At any rate,
the judgment in the case of Nareshbhai Hathising Shah (supra),
is not on the issue as involved in the present case. Though every
contempt has to be viewed very seriously, applicant may not
perceive that learned Single Judge will not view it very seriously.
At the same time, when both the parties are available before the
Court, which granted injunction, it would be very easy for it to
determine whether there is any breach of injunction / order or
not, based on the pleadings already on record along with that
may be filed in application praying for breach of injunction.
[14] Another decision in the case of Amit Kumar Das
(supra) of Supreme Court is also not of any help to him as
despite Division Bench of the High Court in that case held that
act of contemnor was in willful disobedience to the stay order
passed in First Appeal and was not only contemptuous but also
illegal and invalid, instead of initiating proceedings for contempt,
the Division Bench opined that justice would be subserved by
vacating the stay order passed in First Appeal. At the same time,
aggrieved by the said turns of event, contemnor went to the
Supreme Court and there the order of High Court came to be
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quashed and set aside and matter was remanded back to the
High Court. It is again not on the question involved in this
application.
[15] The decision in the case of Patel Rajnikant Dhulabhai
(supra), relied on by the applicant, is again of no help to him as
in the said decision also the question involved here was never
involved in the case determined. It is again a decision more on
the point that whether apology tendered, despite disobedience of
order passed by the Court is proved, be granted or contemnor
should be punished and a view was taken seeking apology is no
alternative, in the facts of the case which is not an act of
penitence, contrition or regret and he was punished
appropriately.
[16] Punishing contemnor by the High Court or the
Supreme Court for the disobedience of the order or undertaking
given is well within the powers of this Court but when main Civil
proceedings are pending, evidence is also on verge of completion,
even petition under Article 227 of the Constitution of India
against refusal of counter injunction is pending, wherein it is
claimed that injunction is granted, that petition is still pending,
this Court would not initiate an action under "the Act", more
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particularly when applicant has already filed this application for
action in contempt in that pending proceedings, he should pray
for it before that Court under "the Code", instead of requesting
this Court to initiate that action under "the Act". In view thereof,
this application is rejected.
(UMESH A. TRIVEDI, J.)
(RAJENDRA M. SAREEN,J.)
Lalji Desai
