Cont. Case (Crl.) 9/2004 1 of 33 * IN THE HIGH COURT OF DELHI AT NEW DELHI + Date of Decision: 20th July, 2009 % Contempt Case (Crl.) No. 9/2004 # In the matter of Contempt Proceedings Against Kanwar Singh Saini ...Respondent/contemner ^ Through: Mr. Vijay Aggarwal & Mr. Rakesh Mukhija, Advocates Mr. Deepak Gupta, Advocate for the complainant. CORAM: * HON'BLE MR. JUSTICE B.N. CHATURVEDI * HON'BLE MR. JUSTICE P.K.BHASIN 1. Whether Reporters of local papers may be allowed to see the judgment?(Yes) 2. To be referred to the Reporter or not?(Yes) 3. Whether the judgment should be reported in the digest?(Yes) ORDER P.K.BHASIN, J: A Reference was made to this Court by a Civil Judge for initiation of contempt proceedings against one Kanwar Singh Cont. Case (Crl.) 9/2004 2 of 33 Saini, who was the sole defendant in a Civil Suit for injunction (hereinafter referred to as „the defendant/contemner‟) which had been disposed of on 12/05/03. On a preliminary examination of the Reference and the records forwarded alongwith it by the learned Civil Judge on the administrative side of the High Court by a Single Judge Committee constituted for examining contempt applications/References it was found to be a case of „criminal contempt‟ and Hon‟ble the Chief Justice concurring with the view of the learned Single Judge directed the Reference to be placed before a Division Bench since cognizance of „criminal contempt‟ of a Subordinate Court could be taken only by a Division Bench as provided under Section 18 of the Contempt of Courts Act, 1971(hereinafter referred to as „the Act of 1971‟). Accordingly the Reference was placed before the Division Bench and the Division Bench directed issuance of show-cause to the defendant/contemner who entered appearance and filed his response to the show-cause notice. 2. After considering that reply and other material cognizance of „criminal contempt‟ was taken. The defendant/contemner decided to contest the contempt action. The defendant- contemnor and the plaintiff thereafter led evidence by filing their Cont. Case (Crl.) 9/2004 3 of 33 respective affidavits and cross-examined each other. We now proceed to dispose of the contempt Reference. 3. The background in which these contempt proceedings came to be initiated may first be noted. On 26-04-2003 one Mohd. Yusuf(hereinafter referred to as „the plaintiff‟) filed a suit for permanent injunction against the defendant/contemner. That suit was filed by the plaintiff on the averments that he had purchased property No. 148, in village Khirki, Tehsil Mehrauli, New Delhi-110017 from the defendant vide registered sale deed dated 5-9-2002 and further that at the time of the execution of the sale deed the physical possession of the said property (hereinafter to be referred as „the suit property‟) was also handed over by the defendant to the plaintiff. The plaintiff had kept household articles there. On 24-04-2003 the defendant alongwith 5-6 unknown persons came to the suit property and started throwing the articles lying in the suit property belonging to the plaintiff and also threatened to take forcible possession of the suit property. However, because of the resistance offered by the plaintiff and his raising hue and cry several neighbours gathered at the spot and when they were shown the sale deed which the defendant had executed in respect of the suit property those neighbours intervened and the defendant could not then Cont. Case (Crl.) 9/2004 4 of 33 succeed in taking forcible possession of the suit property and went away but while leaving they extended further threats that he would come again within 2 - 3 days with full force and would take possession of the suit property forcibly. On these allegations, the plaintiff prayed for a decree of permanent injunction restraining the defendant as well as his associates, agents, servants etc. from dispossessing the plaintiff from the suit property or interfering in any manner in his peaceful possession thereof, illegally and without following due process of law and an ex-parte injunction to the same effect was also sought by filing an application under Order XXXIX Rules 1 & 2 CPC. 4. On 26-04-2003 the following order was passed in the suit: “Present : Ld. counsel for the plaintiff. Arguments on injunction application heard. No ground for granting ex-parte stay order at this stage, request in this regard is declined. Issue summons of the suit and notice of the interim application to the defendants on PF and RC, courier, UPC and dasti also for 29-04-2003. Sd/- CJ/Delhi 26-04-2003” 5. On 29-04-2003 the defendant appeared in the Court of the Civil Judge and filed his written statement wherein he took the plea that although he had executed the sale deed in question in favour of the plaintiff and had also handed over the possession of Cont. Case (Crl.) 9/2004 5 of 33 the suit property to the plaintiff but he had not threatened to take back its possession. The defendant,however, further pleaded that he had the right to take back the possession since the plaintiff had not made the payment of Rs.25,000/- despite having given the assurance to him to pay that amount. He denied that he had been left with no right or interest in the suit property. The defendant had prayed for the dismissal of the suit. Reply to the injunction application was also filed in which also the defendant took the plea that since the plaintiff had yet to pay him Rs.25,000/- he was not entitled to any interim injunction and so prayed for dismissing that application also. The learned Civil Judge after noticing the said pleas of the defendant recorded the following proceedings on 29/04/03:- “Counsel for the plaintiff. Defendant in person. He states that he is not likely to dispossess the plaintiff from the suit premises as he has already sold the same. However, he has stated that he has to take certain amount from the plaintiff towards expenses which has not been paid by the plaintiff. There is counter claim of the defendant affixing the court fee and in any case, he has legal remedy to exercise it. The defendant is ready to make the statement. Let it be recorded. CJ/Delhi “Statement of Shri Kanwar Singh Saini, Defendant on S.A. Neither I have threatened the plaintiff nor I will dispossess him as I have already sold the suit property vide sale deed. The suit of the plaintiff may kindly be dismissed as there is no merit in the same. R.O. & A.C. Sd/- Cont. Case (Crl.) 9/2004 6 of 33 (Kanwar Singh Saini) Sd/- CJ/DELHI 29.4.2003” “Statement of Ld. Counsel for plaintiff Shri Iqbal Ahmed without oath: I have heard the statement of defendant and I have instruction from the plaintiff to accept the same. The suit of the plaintiff may kindly be disposed of. R.O. & A.C. Sd/- (Iqbal Ahmed) Sd/- CJ/DELHI 29.4.2003” Then on 12-5-2003 the plaintiff made the following statement in the suit:- “I have heard the statement of defendant and I accept the same. My suit be disposed of in terms of statement of defendant. RO&AC Sd/- (Mohd. Yusuf) Sd/- C J/DELHI 12.5.2003” Thereafter the learned Judge passed the following order:- “12.5.2003 Present : Plaintiff in person. Ld. Counsel for the defendant. Statement of plaintiff is recorded on a separate sheet. Statement of defendant is already recorded. Keeping in view of the statements of parties, the suit of the plaintiff is disposed of. Parties are bound by their statements as given in the court. No orders as to costs. File be consigned to Record Room. Sd/- CJ/DELHI 12.5.2003” Cont. Case (Crl.) 9/2004 7 of 33 6. It appears that sometime after the disposal of the suit of the plaintiff defendant‟s son Vikram Saini filed a suit for partition in respect of the suit property and for setting aside the sale deed executed by his father in favour of the plaintiff in respect of the suit property as the same had been executed by his father in collusion with the plaintiff and one Ved Prakash, who was a relative of the defendant. That suit was stated to be still pending and in that suit the plaintiff Mohd. Yusuf was also stated to be a party. 7. It also appears that after the aforesaid suit was filed by Vikram Saini, Mohd. Yusuf, the plaintiff of the suit against Kanwar Singh Saini, filed an application before this Court in September,2003 for initiating contempt of court proceedings against the defendant/contemner for the violation of the undertaking given by him before the trial Court not to dispossess the plaintiff from the suit property. However, the Single Judge Bench before which that petition(being CCP no. 501/2003) was placed did not even issue notice to the defendant/contemner and the petition was dismissed. Cont. Case (Crl.) 9/2004 8 of 33 8. Thereafter, the plaintiff filed an application under Order XXXIX Rule 2A CPC read with Sections 10,11 and 12 of the Act of 1971 in the trial Court. The defendant was impleaded as respondent no.1 in that application, his wife was impleaded as respondent no.2 and his sons Vikram Saini and Gaurav Saini were impleaded as respondents 3 and 4 respectively. It was alleged in the said application that on 4th August, 2003 the plaintiff on visiting the site i.e.148, village Khirki, New Delhi learnt that the respondents/contemners had in collusion with each other and in wilful breach of the undertaking given to the Court by Kanwar Singh Saini on 29-04-2003 broken open the locks and doors of the suit property and had taken its possession and thereby they had committed grave contempt of Court. 9. The learned Civil Judge issued notice of the plaintiff‟s application under Order XXXIX Rule 2-A CPC to the four respondents/contemners. Only Kanwar Singh Saini and his son Vikram Saini filed their replies to the application. The wife of defendant Kanwar Singh Saini and his other son Gaurav Saini, however, did not even enter appearance despite service of notice of contempt application. The defendant/ contemner Kanwar Singh Saini filed a detailed reply to the contempt application in which he claimed that the sale deed in respect of Cont. Case (Crl.) 9/2004 9 of 33 the suit property relied upon by the plaintiff had been got executed from him by playing fraud upon him by the plaintiff and one Ved Prakash, who was his(defendant‟s) relative. It was claimed that the plaintiff was never given the possession of the suit property which was always with the defendant and further that the statement in the Court of the Civil Judge which he had allegedly made on 29th April, 2003 was also got made from him by playing fraud upon him by the plaintiff and Ved Prakash. He had not engaged any advocate. It was further pleaded by the defendant that there were in fact two plots one of which was plot no. 148 measuring 120 sq. yds. and the other one was plot no. 178-A measuring 85 sq. yds. in Khirki Village, Malaviya Nagar, New Delhi and both these plots were adjoining each other and construction thereupon was also raised by the defendant joining the two plots and there was no partition wall in between the said two properties nor was there any separate entrance for the two properties and there was no separation of the constructed portion of the two plots from basement upto the top and so there was no question of selling property no.148 or handing over its possession to the plaintiff. It was further claimed that defendant was in need of money and his nephew Ved Prakash assured him that he and the plaintiff Mohd. Yusuf would arrange loan for him and so at their instance property documents in respect of the suit Cont. Case (Crl.) 9/2004 10 of 33 property were got signed from him and Ved Prakash and the plaintiff had also told him that when the loan would be sanctioned he will have to appear before the Court. After some time he received a notice from the court of Shri S.S. Malhotra, Civil Judge, Delhi and then at the request of the plaintiff and Ved Prakash he accompanied them to the Court where he was asked to make a statement as desired by them. He did sign certain papers at the instance of Mohd. Yusuf and Ved Prakash but no loan was given to him. Thereafter on 4-8-2003 Ved Prakash came to the suit property along with 4-5 persons and started keeping certain household goods in one of the rooms and when the defendant protested and asked Ved Prakash to remove the goods but he refused to do that and then police was called and only thereafter Ved Prakash had to remove the goods which he had kept in the room. Later on it was revealed that Ved Prakash had, in fact, got the sale deed of suit property executed from him in favour of Mohd. Yusuf and he had come to take possession of the suit property at the instance of Mohd. Yusuf. The defendant/ contemner pleaded that in that manner plaintiff Mohd. Yusuf and Ved Prakash had played fraud not only upon him but also on the Court. Cont. Case (Crl.) 9/2004 11 of 33 10. Vikram Saini, respondent no. 3 in the application, in his reply to the contempt application claimed that the contempt application has been moved by the plaintiff in collusion with his father Kanwar Singh Saini and Ved Prakash. He claimed that the suit property was never in possession of his father or in the possession of the plaintiff and further that even his father was not the owner of suit property. It was further claimed by Vikram Saini that the suit property was bequeathed by his grand-father late Shri Sher Singh in favour of his two grand-sons, namely, respondents no. 3 & 4 in the application. It was further pleaded that Shri Kanwar Singh Saini in collusion with the plaintiff and Ved Prakash were guilty of obtaining frivolous decree from the Court and that already a suit had been instituted by respondent no. 3 challenging the sale deed in respect of suit property executed by his father in favour of the plaintiff. 11. The plaintiff filed separate rejoinders to the replies filed by the defendant and his son Vikram Saini reiterating the averments made in the contempt application and denied the stands taken by these two respondents in their respective replies. The plaintiff admitted the filing of suit by respondent no. 3 Vikram Saini challenging the sale deed in respect of the suit property in favour of the plaintiff. Cont. Case (Crl.) 9/2004 12 of 33 12. After examining the entire material the learned Civil Judge while disposing of the plaintiff‟s application under Order XXXIX Rule 2-A CPC and Sections 10,11 and 12 of the Act of 1971 held that, prima-facie, case of contempt of Court was made out against the defendant/contmener Kanwar Singh Saini only and accordingly made the present Reference to this Court. 13. Before proceeding further it may also be noticed here that the defendant/contemner has already filed a suit against Mohd. Yusuf and the Sub-Registrar, Mehrauli, New Delhi on 23-02-2005 for the cancellation of the Sale Deed dated 05-09-2002 executed by him in favour of Mohd. Yusuf in respect of the suit property. 14. On receipt of the Reference from the Court of Civil Judge the Division Bench, before which it was placed after it was found to be a case of criminal contempt, had given a show-cause notice to the defendant/contemner. The defendant/contemner Kanwar Singh Saini had filed his reply supported by an affidavit and in that reply he maintained the same stand which he had taken before the reference Court in response to the plaintiff‟s contempt application. Cont. Case (Crl.) 9/2004 13 of 33 15. After examining the records received alongwith the reference order our predecessor Bench observed as under on 02-02-2005:- “..........It is also an admitted position in the written statement that the respondent has admitted that he had sold the suit property to the plaintiff, namely, Mohd. Yusuf by a registered sale deed....................... .......... It is, however, interesting to note that a sommersault has been taken by the respondent in the said reply, inasmuch as it is stated in the said reply filed, on affidavit, that Mohd. Yusuf was never ever in possession of the suit premises and, therefore, the question of dispossessing would not and need not arise. ............It is, therefore, crystal clear that the respondent at different stages is taking up diametrically conflicting and opposite stands in order to suit his interests. It is noted by counsel appearing for the respondent now that this matter could not have been registered as a criminal contempt...................................................... .....................A similar question as to whether or not filing of an affidavit allegedly containing false averments and statements would amount to criminal contempt, was considered by the Supreme Court in the case of M.C. Mehta Vs. Union of India & Ors. reported in Vol. III (2003) SLT 58. In the said decision the Supreme Court has considered the said issue and held that filing of false affidavit and statement would amount to committing criminal contempt. We are, therefore, supported by the aforesaid decision of the Supreme Court in coming to the conclusion in this case that prima facie the respondent, by making a statement on solemn affirmation before the court and also in verified written statement and thereafter completely denying the said position in the pleadings supported by affidavit/verification with false contentions and statement, has committed a criminal contempt. In the light of the aforesaid conclusions and prima facie opinion we take cognizance of the case under Section 15(2) of the Contempt of Courts Act. The respondent, therefore, shall be present in court in person on 16th February, 2005 when charge against the respondent, alleged contemnor shall be framed and a trial shall be held.” Cont. Case (Crl.) 9/2004 14 of 33 16. Thereafter on 20-05-2005 the Bench after once again taking note of the factual backgound observed that:- “.....The learned Civil Judge thereupon made a reference under the Contempt of Courts Act to this Court for initiating proceedings for criminal contempt...................................................................... In view of the foregoing narration, it is prima facie established that respondent-contemnor has by making false and contradictory statements and averments in the pleadings interfered with the due process of law and obstructed the course of justice. Notice is accordingly issued to the respondent to show cause as to why he should not be punished for criminal contempt in the aforesaid facts. Respondent-contemnor accepts notice and states that he would like to defend himself and lead evidence ...........” 17. Thereafter evidence was adduced by the defendant/contemner as well as the plaintiff which has been examined by us for deciding the Reference. We have also heard the learned counsel for the defendant/ contemner as well as the learned counsel for the plaintiff. 18. Mr. Deepak Gupta, learned counsel for the plaintiff, submitted that on the basis of allegations made against the defendant/contemner and the evidence adduced in these proceedings it is clearly established that the defendant/ contemner by violating his own solemn undertaking given to the trial Court in the plaintiff‟s suit not to dispossess the plaintiff from Cont. Case (Crl.) 9/2004 15 of 33 the suit property had committed contempt of Court by dispossessing the plaintiff from the suit property. It was also contended that the defendant/contemner instead of showing any remorse even after the trial Court had issued him the show-cause notice after the filing of the contempt application by the plaintiff had in fact compounded the contempt by filing false reply supported by his affidavit taking therein a stand regarding the ownership and possession of the suit property which was totally contradictory to the stand taken by him in his written statement in the suit as well as at the time of making statement on oath on 29/04/03 before the trial Court. Mr. Gupta contended that in these circumstances the defendant/contemner deserves to be punished appropriately by this Court and additionally he should also be directed to deliver back the possession of the suit property to the plaintiff. 19. On the other hand, Mr. Vijay Aggarwal, learned counsel for the defendant/contemner, had submitted that the submissions made by the counsel for the plaintiff that the plaintiff had been dispossessed from the suit property by the defendant/contemner in breach of his categorical undertaking given to the trial Court in the plaintiff‟s suit not to dispossess him cannot be gone into now in the present proceedings which have been initiated on specific Cont. Case (Crl.) 9/2004 16 of 33 allegations of filing of false affidavits in Court by the defendant/contemner. Mr. Aggarwal submitted that the violation of an undertaking given to a subordinate Court amounts to „civil contempt‟. It was submitted that the plaintiff himself had initially approached the High Court for taking action against the defendant/contemnor for contempt of Court on account of the alleged violation of the undertaking given by him to the trial Court but the learned Single Judge had not entertained that petition for civil contempt. Thereafter the plaintiff had moved the trial Court under Order XXXIX Rule 2A CPC and then the trial Court made a reference to this Court for criminal contempt. Mr. Aggarwal also submitted that on receipt of the Reference it was placed before the Division Bench which took cognizance of criminal contempt and so now the proceedings cannot be converted into one for „civil contempt‟. 20. As an alternative plea, Mr. Aggarwal had also contended that the defendant/contemner was in any case disputing even the correctness of the allegation that he had violated any undertaking given to the trial Court. Mr. Aggarwal submitted that in the statement of the defendant recorded on 29/04/03 in the plaintiff‟s suit, even if it is accepted to have been made by the defendant voluntarily, he had stated that the suit should be dismissed as Cont. Case (Crl.) 9/2004 17 of 33 there was no merit in it and the same thing was stated in the written statement also which is being relied upon by the plaintiff, and in addition to that plea the defendant had also claimed that he had the right to take back the possession of the suit property from the plaintiff as the plaintiff owed some money to the defendant and even the trial Court had noted that plea in his proceedings of 29th April. It was submitted that reading of the written statement and the oral statement together makes it clear that there was no unequivocal and unconditional undertaking to the Court not to disposses the plaintiff and in fact the defendant had categorically claimed that he had the right to dispossess him. 21. Regarding the charge against the defendant/contemner of taking contradictory stands in his written statement and his affidavits filed subsequently before the Reference Court and also before this Court Mr. Aggarwal submitted that this charge is not made out at all. Mr.Aggarwal contended that the defendant/ contemner was not disputing that the written statement available in the suit file was signed by him but he has been able to show in the present proceedings from his evidence that that written statement was got signed from him as a result of fraud played on him by the plaintiff and one Ved Parkash who was closely related Cont. Case (Crl.) 9/2004 18 of 33 to the defendant/contemner and had taken undue advantage of that relationship. It was further contended that written statement purporting to be that of the defendant/contemner was in fact placed on record in the absence of the defendant/contemner and that was evident from the fact that in the proceedings recorded by the Civil Judge on 29/04/03 there is no reference of any written statement having been filed on that date. Learned counsel also submitted that the defendant /contemner had neither verified any false pleadings nor had sworn false affidavits at any stage inasmuch and in the written statement filed in the suit certain admissions were got made from him as a result of