IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision : 21.12.2010 COCP No.1440 of 2010 Amin Lal and another ...Petitioners Versus Rajinder Kumar and others ...Respondents CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present : Mr. Saurabh Arora, Advocate, for the petitioners. Mr. G.S. Sandhu, Advocate, for respondent Nos.1 to 3. Mr. Sukhdev Kamboj, Advocate, for respondent Nos.4 to 8. HEMANT GUPTA, J. The plaintiffs have filed the present contempt petition alleging willful and deliberate disobedience to the orders passed by the Civil Court and affirmed by this Court in RSA No.3301 of 2006 on 5.2.2009. The petitioners filed a suit for possession of house measuring 40’ x 70’ approx. situated in Village Kundal, Tehsil Abohar, District Ferozepur against Shagan Lal, who was in its possession as tenant. The said suit was dismissed by the learned trial Court, but decreed by the learned first Appellate Court on 26.07.2005. The defendant Shagan Lal filed Regular Second Appeal before this Court alongwith an application for condonation of delay and for stay of the judgment. During the pendency of the appeal, Shagan Lal died on 17.10.2008 and his legal heirs i.e. respondent Nos.1 to 3 COCP No.1440 of 2010 filed an application for being impleaded as legal heirs of said Shagan Lal. That application was allowed on 11.11.2008. In the said application, the legal heirs alleging themselves to be resident of Village Kundal, Tehsil Abohar, District Ferozepur. The said address is that of the property in dispute. It was on 05.02.2009, the regular second appeal filed by Shagan lal and prosecuted by his legal representatives was dismissed with modification in the judgment and decree, whereby the relief of mesne profits was set aside, but decree for possession was confirmed. Before the decision of the said appeal by this Court, the petitioners filed a separate suit for injunction against defendant Nos.4 to 8. It was alleged in the said suit that an execution petition has been filed to enforce the decree granted by the learned first Appellate Court, wherein warrants of attachment of the judgment-debtor have been issued. The judgment-debtor Shagan Lal has died and the house in question is lying vacant and the defendants residing in the adjoining house, have taken undue advantage and have tried to enter upon the house by making an attempt to remove wall between the house of the parties to dispute. Thus, the petitioners sought permanent injunction to restrain respondent Nos.4 to 8 to enter into the possession of the premises, which was once in possession of Shagan Lal. Respondent Nos.4 to 8 filed their written statement in the suit asserting that they are owners in possession of the suit property. The application for ad interim injunction has been dismissed by the learned trial Court on 04.06.2010 as not pressed. Respondent Nos.4 to 8 also filed objections in the execution pending before the Executing Court alleging that the property, subject matter of the present execution is owned and possessed 2 COCP No.1440 of 2010 by the objectors and that the objectors are necessary parties in the execution proceedings. On the other hand, legal representatives of deceased Shagan Lal in their separate written statement asserted that Shagan Lal alone was residing in house in dispute, who died on 17.10.2008. The house in question was lying vacant after his death and respondent Nos.4 to 8 have tried to take possession of the property in dispute, which is apparent from the averments made in the suit for injunction filed by the plaintiffs. It is also pointed out that respondent No.1 has made a statement before the Executing Court on 20.03.2009 that the decree holder can take possession which statement was reported on 25.06.2009 as well. It was asserted that property is vacant and has no objection if the decree is executed. It is also pointed out that there is no allegation that respondent Nos.4 to 8 have colluded with respondent No.1, therefore, the contempt petition has been filed to defeat the rights of the respondents to get the property released from attachment, attached in pursuance of the decree granted by the learned first Appellate Court for the mesne profits. Learned counsel for the petitioners has vehemently argued that the respondents have colluded so as to defeat the fruits of the decree affirmed by this Court. It is also argued that during the course of execution, the Bailiff, who was deputed to execute the warrants of possession, has been man-handled by respondent No.1 and respondent Nos.5 to 8, which is apparent from his report dated 16.09.2009. The report is as under: “Sir, It is submitted that today (16.9.2009), I alongwith the decree holder and the witnesses went to execute the warrants of possession in respect of the disputed house. The door of the outer gate of the disputed house was got broken from Mistri 3 COCP No.1440 of 2010 Brij Lal. When we entered the house, as per the site plan, we found that the wall of the disputed house from the side of the house of Baldev Singh Fauji had been broken. Baldev Singh Fauji, his wife Baljeet Kaur, Member Panchayat, and his sons Jaswinder Singh, Gurvinder Singh, Rajbinder Singh came in front of us from the side of the broken wall. The identification of these persons had been done by Decree Holder Daulat Ram. These persons started quarelling with me and started pushing us and they pushed us outside the gate. Baldev Singh Fauji locked the door from inside. I have danger to my life. Please provide me police help and grant me permission to break open the lock from inside the door so as to get the warrants of possession executed. The report is submitted. Sd/- Joginder Pal, Bailiff 16.9.2009” It is, thus, argued that respondent Nos.4 to 8 have taken advantage of neighbourhood by demolishing the wall, in connivance of the legal representatives of the deceased Shagan Lal and have obstructed the due execution of the decree. Therefore, the said conduct of the respondents discloses willful and deliberate disobedience to the orders passed by the Civil Court. It is argued by the counsel for the respondent Nos.1 to 3 that the said respondents have made a statement before the learned Executing Court that the property is lying vacant and its possession can be taken by the decree-holder. The petitioners have already filed a suit for injunction even before the decree was affirmed by this Court, therefore, respondent Nos.1 to 3 have not violated any part of the decree, much less a willful and deliberate disobedience to the decree. On the other hand, learned counsel for respondent Nos.4 to 8 has argued that the suit for injunction, before affirmation of decree by this 4 COCP No.1440 of 2010 Court, was filed and in which the petitioners have not granted any ad interim injunction. Therefore, it cannot be said that the respondents have violated the civil Court decree, as the said respondents were not party to the civil Court decree, therefore, the said respondents cannot be said to be bound by the said decree so as to deliver possession to the petitioners. The fact, whether the contempt is maintainable even if the decree is executable has been examined in detailed in COCP No.2138 of 2010 on 17.12.2010 titled “Nachhattar Singh Vs. Surinder Pal Singh and another”, wherein it was held to the following effect: “Section 2(b) of the Act defines “civil contempt” to mean willful disobedience to any judgment, decree, direction, order, writ or other process of a Court or willful breach of an undertaking given to a Court. Willful breach of an undertaking given to the Court is a separate than willful disobedience to any judgment, decree, direction, order, writ or other process of the Court. This is what has been held by the Hon’ble Supreme Court in Rama Narang Vs. Ramesh Narang and another 2006 (11) Supreme Court Cases 114. It was held to the following effect: “18. The Act has been duly widened. It provides inter alia for definitions of the terms and lays down firmer bases for exercise of the court’s jurisdiction in contempt. Section 2(b) of the Contempt of Courts Act, 1971 defines civil contempt as meaning “willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court”. (emphasis supplied) Analysed, the definition provides for two categories of cases, namely, (1) willful disobedience to a process of court, and (2) willful breach of an undertaking given to a court. As far as the first category is concerned, the word “any” further indicates the wide nature of the power. No distinction is statutorily drawn between an order passed after an 5 COCP No.1440 of 2010 adjudication and an order passed by consent. This first category is separate from the second and cannot be treated as forming part of or taking colour from the second category. The legislative intention clearly was to distinguish between the two and create distinct classes of contumacious behaviour.” The Hon’ble Supreme Court in Rama Narang’s case (supra) further held that merely because an order or decree is executable, would not take away the Court’s jurisdiction to deal with a matter under the Act provided the Court is satisfied that the violation of the order or decree is such, that if proved, it would warrant punishment under Section 13 of the Act on the ground that the contempt substantially interferes or tends substantially to interfere with the due course of justice. It was held to the following effect: “24. All decrees and orders are executable under the Code of Civil Procedure. Consent decrees or orders are of course also excutable. But merely because an order or decree is executable, would not take away the court’s jurisdiction to deal with a matter under the Act provided the court is satisfied that the violation of the order or decree is such, that if proved, it would warrant punishment under Section 13 of the Act on the ground that the contempt substantially interferes or tends substantially to interfere with the due course of justice. The decisions relied upon by the respondents themselves hold so as we shall subsequently see. 25. In such circumstances, it would neither be in consonance with the statute, judicial authority, principle or logic to draw any distinction between the willful violation of the terms of a consent decree and willful violation of a decree which is passed on adjudication. 26. xxx xxx xxx 30. This decision reinforces our view of the law. It does not in any way run contrary to our opinion as expressed 6 COCP No.1440 of 2010 earlier on the interpretation to be put on Section 2 (b) of the Act. On the other hand, the Court repelled the submission of the respondents that the petitioner’s remedy lay in executing the decree in the following words: “The fact that the petitioner can execute the decree can have no bearing on the contempt committed by the respondents”. In view of the aforesaid judgment, it is required to be examined that whether the conduct of the respondents is such which substantially interferes or tends substantially to interfere with the due course of justice and whether the disobedience to the order of eviction is “willful”. In Court on Its Own Motion v. N.S. Kanwar, Executive Engineer, 1995(1) PLR 106, a Division Bench of this Court interpreted the words “wilful disobedience” appearing in Section 2(b) of the Act and after examining the precedents on the subject and the dictionary meaning of the word held that: “28. From the above quoted dictionary meaning of the term ‘wilful’ and the decisions of the Courts, it is reasonable to derive that term ‘wilful disobedience’ used in section 2(b) of the Contempt of Courts Act, 1971 cannot be construed to mean that an act must in all cases be designed and deliberate to be held as Civil Contempt. If a party who is fully in know of the order of the court or is conscious and aware of the consequences and implications of the Court's order, ignores it or acts in violation of the Court's order, it must be held that disobedience is wilful. In our view ordinarily it is never practicable to prove the actual intention behind the act or omission. A court can approach the question only objectively and it may presume the intention from the act done as every man is presumed to intend the probable consequence of his act.” 7 COCP No.1440 of 2010 In Ashok Paper Kamgar Union v. Dharam Godha, (2003) 11 SCC 1, the Hon’ble Supreme Court held to the following effect: ““Wilful” means an act or omission which is done voluntarily and intentionally and with the specific intent to do something the law forbids or with the specific intent to fail to do something the law requires to be done, that is to say, with bad purpose either to disobey or to disregard the law. It signifies a deliberate action done with evil intent or with a bad motive or purpose. Therefore, in order to constitute contempt the order of the court must be of such a nature which is capable of execution by the person charged in normal circumstances. It should not require any extraordinary effort nor should be dependent, either wholly or in part, upon any act or omission of a third party for its compliance. This has to be judged having regard to the facts and circumstances of each case. The Hon’ble Supreme Court in Kapildeo Prasad Sah v. State of Bihar, (1999) 7 SCC 569, held to the following effect: “9. …. 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 with. Even negligence and carelessness can amount to disobedience particularly when the attention of the person is drawn to the court’s orders and its implications. Disobedience of the court’s order strikes at the very root of the 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. 10. In his famous passage, Lord Diplock in Attorney General v. Times Newspapers Ltd (1973) 3 All ER 54 (HL) said that there is also 8 COCP No.1440 of 2010 “an element of public policy in punishing civil contempt, since administration of justice would be undermined if the order of any court of law could be disregarded with impunity”. Jurisdiction to punish for contempt exists to provide ultimate sanction against the person who refuses to comply with the order of the court or disregards the order continuously. Initiation of contempt proceedings is not a substitute for execution proceedings though at times that purpose may also be achieved. 11. No person can defy the court’s order. Willful would exclude casual, accidental, bona fide or unintentional acts or genuine inability to comply with the terms of the order. A petitioner who complains breach of the court’s order must allege deliberate or contumacious disobedience of the court’s order. The Hon’ble Supreme Court has considered the scope and purport of the Contempt proceedings in J. Vasudevan v. T.R. Dhananjaya, (1995) 6 SCC 249 and held to the following effect: 14. …..while awarding sentence on a contemner the Court does so to uphold the majesty of law, and not with any idea of vindicating the prestige of the Court or to uphold its dignity. It is really to see that unflinching faith of the people in the courts remains intact. But, if the order of even the highest Court of the land is allowed to be willfully disobeyed and a person found guilty of contempt is let off by remitting sentence on plea of mercy, that would send wrong signals to everybody in the country. It has been a sad experience that due regard is not always shown even to the order of the highest Court of the country. Now, if such orders are disobeyed, the effect would be that people would lose faith in the system of administration of justice and would desist from 9 COCP No.1440 of 2010 approaching the Court, by spending time, money and energy to fight their legal battle. If in such a situation mercy is shown, the effect would be that people would not knock the door of the courts to seek justice, but would settle score on the streets, where muscle power and money power would win, and the weak and the meek would suffer. That would be a death-knell to the rule of law and social justice would receive a fatal blow. This Court cannot be a party to it and, harsh though it may look, it is duty-bound to award proper punishment to uphold the rule of law, how so high a person may be.” In view of the above, what is required to be examined is whether the respondents have colluded together so as to obstruct and defeat the execution of the decree which can be said to be willful disobedience. Shagan Lal-the defendant died during the pendency of the second appeal before this Court on 17.10.2008. His legal representatives- respondent Nos.1 to 3 herein filed an application before this Court alleging themselves to be resident of Village Kundal, Tehsil Abohar, District Ferozepur. The argument that Shagan Lal was living alone and that the house was lying vacant after his death, the possession of which could be taken by the decree holder is not tenable. If the house fell vacant after the death of Shagan Lal, there was no necessity of respondent Nos.1 to 3 to prosecute the appeal to protect the interest of Shagan Lal. The address mentioned in the application is that of the Village Kundal, Tehsil Abohar, District Ferozepur, where the property is situated. Therefore, it cannot be said that respondent Nos.1 to 3 were not in occupation of the said house, when the decree for possession was affirmed by this Court on 05.02.2009. Respondent Nos.4 to 8 are admittedly residing adjoining to the house of respondent Nos.1 to 3. As per the report of the Bailiff, the wall of 10 COCP No.1440 of 2010 the house from the side of respondent No.4 stands demolished. Such act of demolition of wall, cannot be disbelieved as it is based upon the report of the official of Court. Therefore, the collusion of respondent Nos.1 to 3 with respondent Nos.4 to 8 is beyond dispute. Such collusion is for the purpose of obstructing the due execution of the decree for possession. Though respondent Nos.4 to 8 are not party to the decree, but the said respondents have no independent ownership, interest or title over the suit property. The respondents assert themselves to be owner of the suit property, however, there is no assertion as to how they derive their title over the suit property. Mere assertion that they are owners of the suit property in cryptic manner shows that such stand is for the purpose of defeat and delay the due execution of the decree. The arguments in the petition were heard on 16.12.2010 and the case was posted for hearing on 20.12.2010. However, on 20.12.2010, none of the contemners were present in Court. Learned counsel representing the respondents sought some time to cause appearance of the respondents. However, on the request of learned counsel for respondent No.2, her presence was dispensed with. Today, the respondents are present in Court. Separate statements of respondent Nos.1, 3, 4 & 8 have been recorded. Such statements show that respondent Nos.4 to 8 are asserting title over the suit property on the basis of alleged purchase of land from Shagan Lal about 10-11 years back on payment of Rs.90,000/-. Therefore, the possession of respondent Nos.4 to 8 is through Shagan Lal. Such transfer is during the pendency of the suit and, therefore, suffers from doctrine of lis pendense. The transfer of rights of Shagan Lal in the suit property is subject to final decree. Since the final decree is against Shagan Lal, the transferee pendente lite is bound by the terms of the decree as well. 11 COCP No.1440 of 2010 Respondent No.1 has stated on oath that he signed the affidavit in support of the application for impleading the legal heirs without reading the same and that he is unable to read English. The said statement of respondent No.1 is not believable as the affidavits are attested after understanding the contents of the same to the executant. In the affidavit, respondent Nos.1 and 3 are stated to be resident of Village Kundal, Tehsil Abohar, District Ferozepur, whereas in the statements made in the Court today, they are stated to be resident of Abohar City. It, therefore, shows that respondent Nos.1 and 3 have been taking stands as per their convenience. The conduct of respondent Nos.4 to 8 in asserting title and possession over the suit property, when Shagan Lal was a licencee, shows that all the respondents have joined hands together so as to deprive the petitioners of the fruits of the decree. The action of the respondents is that of willful and deliberate disobedience to the decree for possession of the Civil Court. Therefore, the present contempt petition is disposed of with the following terms:- (i) The respondents are held guilty for willful and deliberate disobedience to the decree for possession granted by the Civil Court. (ii) The learned Executing Court shall ensure delivery of possession to the decree-holders expeditiously in accordance with law and submit report to this Court within a period of three months. 21.12.2010 (HEMANT GUPTA) Vimal JUDGE 12 COCP No.1440 of 2010 Present : Mr. Saurabh Arora, Advocate, for the petitioners. Mr. G.S.Sandhu, Advocate, respondent Nos.1 to 3. Mr. Sukhdev Kamboj, Advocate, for respondent Nos.4 to 8. *** Vide separate order of today, the respondents have been held guilty for willful and deliberate disobedience to the decree for possession granted by the Civil Court. I have heard the respondents and their counsel on the question of sentence. In respect of Smt. Baljeet Kaur-respondent No.8, learned counsel for the said respondent states that her Gall Bladder has been removed and, therefore, some leniency may be shown. The removal of Gall Bladder is not such a complication which leads to any indulgence on the question of quantum of sentence. Therefore, keeping in view the findings recorded, respondent Nos.1, 3 to 8 are sentenced to undergo rigorous imprisonment for a period of three months and to pay a fine of Rs.2000/- each. In the event of default of payment of fine, the respondent-contemners shall undergo further rigorous imprisonment for a period of two weeks as well. However, keeping in view the old age of contemner-respondent No.2, she is sentenced to pay a fine of Rs.2000/-. In the event of default of payment of fine, she shall undergo rigorous imprisonment for a period of one week. The respondents shall surrender before the Chief Judicial Magistrate, Ferozepur, on or before 14.01.2011. 13 COCP No.1440 of 2010 The implementation of the order shall remain stayed for a period of three weeks to enable the respondents to avail their remedy of appeal. 21.12.2010 (HEMANT GUPTA) Vimal JUDGE 14