capl3.11 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CONTEMPT APPEAL NO.3 OF 2011 IN CONTEMPT PETITION NO.93 OF 2008 IN SECOND APPEAL NO.339 OF 2001 Subhash Ramlal Jaiswal, Age-60 years, Occu: Business, R/o-Juna Bazar, Aurangabad. ...APPELLANT. VERSUS 1) Syed Shah Hussain Nehri S/o-Syed Ahmed Nehari, Age-65 years, Occu:Service, R/o- At present: Beed, Through G.P.A. Shaikh Rasool S/o Shaikh Vazir, Age-32 years, Occu:Business, R/o-Bhadkal Gate, Aurangabad, 2) Syed Shah Mohammad Durawesh Nehari S/o Syed Ahmed Nehri, Age-60 years, Occu:Service, R/o-Aurangabad. ...RESPONDENTS. capl3.11 2 ... Mrs. Asha S. Rasal Advocate for Appellant. Shri.A.D. Kasliwal Advocate for Respondent Nos. 1 and 2. ... CORAM: NARESH H. PATIL AND T.V. NALAWADE, JJ. RESERVED ON : 7TH DECEMBER, 2011. PRONOUNCED ON : 14TH DECEMBER, 2011 JUDGMENT [PER NARESH H. PATIL, J.] : 1. By an order dated 21st September 2011, notice for final disposal of the Appeal was issued. Record and Proceeding was called. The Appeal is heard finally. 2. The Appellant was convicted and sentenced for non-compliance, breach of undertaking furnished on 30th August, 2004 in the proceedings of Second Appeal No.339 of 2001. By an order dated capl3.11 3 11th August, 2011 passed by the learned Single Judge of this Court in Contempt Petition No.93 of 2008, the Appellant was convicted and sentenced to undergo detention in Civil Prison for a period of two months and to pay fine of Rs.2000/- (Rupees Two Thousand) . 3. The Appellant - Subhash Ramlal Jaiswal was defendant in a Suit filed by the Respondents herein, being Regular Civil Suit No.252 of 1982, for mandatory injunction. The plaintiffs prayed for direction to restore possession of the suit property bearing C.T.S. No.3115 situated at Juna Bazar, Aurangabad, admeasuring about 16 X 30 ft. The plaintiffs also prayed for perpetual injunction restraining the Respondent therein from committing further encroachment. The said Suit was decreed by Judgment and order passed by 4th Joint Civil Judge, Junior Division, Aurangabad, on 29th April, 1995. The Appellant herein preferred Regular Civil Appeal No.177 of 1995 against the capl3.11 4 said Judgment and decree. The Appeal came to be dismissed on 19th June, 2001. Being aggrieved by the dismissal of the Appeal, the Appellant preferred Second Appeal No.339 of 2001 before the High Court. By an order dated 19th August 2004, the Second Appeal came to be dismissed in limine, by speaking order. At that stage the Appellant herein prayed for three months protection on the ground that he wants to challenge the said order in the Apex Court. The learned Single Judge granted three months time, subject to filing of an undertaking to the effect that he shall vacate the property in accordance with the decree passed by the trial Court within three months. Undertaking was to be filed within two weeks from the date of order. 4. The record placed before us reveals that Special Leave Petition No.24865 of 2004 was filed by the Appellant herein, which came to be dismissed by the Apex Court on 14th May, 2007. The capl3.11 5 Appellant preferred Review Petition against the said order, which came to be dismissed. The Respondents - Contempt Petitioners stated before the Court that inspite of filing of undertaking and dismissal of Special Leave Petition by the Apex Court, the Contemnor did not comply with the undertaking and solemn assurance given to the Court. It was submitted that the act and conduct of the Appellant amounts to willful disobedience of the order passed by the Court in the proceedings of the Second Appeal. 5. In response to the notice issued by the Court, the Appellant - Contemnor appeared. It was submitted on behalf of the Appellant that he is illiterate and the undertaking was furnished in haste as his Advocate asked him to sign some papers. The record further reveals that the Respondents took steps to execute the decree. The Appellant appeared and contested the matter. His objections were rejected by the Civil Court. The capl3.11 6 Appellant preferred Civil Revision Application against the said order, which was dismissed by the High Court. 6. The learned counsel for the Appellant herein submits that the Appellant was unable even now to hand-over the suit premises in accordance with the order passed by the Civil Court and the undertaking furnished by the Appellant to the High Court. The Contempt Petition is barred by limitation, according to the counsel. It is further submitted that the undertaking furnished to the Court had merged in the proceedings filed by the Appellant in the Apex Court. The Appellant had no knowledge of undertaking being furnished to the Court, he being educated up-to 7th standard only. His age is 55 years. He runs a ice factory. Considering all these circumstances, it is submitted that the Appellant is still not able to comply with the undertaking as the same is inconvenient to the Appellant. capl3.11 7 7. On behalf of the Respondents, learned counsel submits that this is a fit case of gross contempt of Court, which is evident from the record and the conduct of the Appellant. In- executability of the decree and inconvenience of the party to obey the order of the Court and undertaking given to the Court, cannot be a ground in the facts of this proceedings, according to the counsel. It was submitted that the Contemnor through-out maintained a stand, which is highly unreasonable and contemptuous. Even now the Contemnor has no remorse in respect of his conduct, which amounts to flouting the orders of the Court in breach of undertaking furnished to the Court. In support of his submissions, the learned counsel for Respondents placed reliance on the reported Judgment in the case of Harshwadan Bandivadekar vs. Taramati Harishchandra Ghanekar and others, 2009 (2) ALL M.R. Page 223. capl3.11 8 8. We have perused the original record, the impugned Judgment and order passed by the learned Single Judge, the Judgments cited before the learned Single Judge and the Judgment cited before us. 9. In the facts of the case, we find that the Appellant had exhausted all the remedies available to him in law in contesting the matter on the merits right up-to the Apex Court. The Appellant even contested the execution proceedings initiated by the Respondents - original plaintiffs. The Appellant was unsuccessful in getting any relief. The Appellant was pursuing his legal remedies and exhausted the same, being fully aware that he had furnished undertaking to the Court to hand-over possession of the suit premises. The Second Appeal came to be dismissed on 19th August, 2004. The Contempt Petition was filed in the year 2008. The Appellant had four years time to comply with the order of the Court capl3.11 9 and the undertaking furnished to the Court. The Appellant proceeded to defy the undertaking by raising different pleas, which conduct is unreasonable and contemptuous. 10. We are not convinced to accept the plea that the Appellant was/is unable to comply with the undertaking due to inconvenience which would be caused to the Appellant in respect of compliance of the same. The plea in defence raised by the Appellant seems to have been raised for the sake of it. We do not find that the criteria of the age of the Appellant could be a matter for our consideration, considering the peculiar facts of the case. 11. During the course of hearing of the Appeal, we had even enquired from the counsel as to whether the Appellant would be, now, in a position to comply with the order passed by the Court and the undertaking furnished. The learned capl3.11 10 counsel, on instructions, expressed that it will be inconvenient for the Appellant to honour the solemn assurance given to the Court by way of undertaking. In the facts of the case and the Judgments relied upon by the learned Single Judge, we do not think that the Contempt Petition is barred by limitation. 12. The learned Single had, in detail, discussed the facts and the pleas raised by the parties and had even noticed the conduct of the Appellant - Contemnor, before the Court. The serious concern shown by the learned Single Judge in appreciating the facts of the case, is justified. 13. The learned counsel for the Appellant submitted that leniency be shown to the Appellant. But in the facts of the case as emerging from the record, we do not find that the Appellant has made out any case for showing leniency. capl3.11 11 14. There is no merit in the Appeal. The Appeal is accordingly dismissed. [T.V. NALAWADE, J.] [NARESH H. PATIL, J.] asb/DEC11 15. After pronouncement of the Judgment, learned counsel for the Appellant prayed for staying the effect and operation of the Judgment for the period of four weeks. The request is refused. [T.V. NALAWADE, J.] [NARESH H. PATIL, J.] asb/DEC11