1 23cp133-11 rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURSIDICTION CONTEMPT PETITION NO. 133 OF 2011 IN WRIT PETITION NO. 8162 OF 2010 Veletina Cooperative Housing Soceity Ltd. .. Petitioner V/s. Mohan Subhale & Ors. .. Respondents ..... Mr. R.V. Govilkar for the petitioner. Mr. A. I. Patel, AGP for respondent Nos.2 and 3. Mr. Joaquim F. Reis, Senior Advocate and Ms. Reena Salunkhe i/b. M/s. Omkar Kulkarni for respondent No.4. ..... CORAM : A.S.OKA, J. DATE : DECEMBER 15, 2011. P.C.: Heard the learned counsel appearing for the petitioner- society and the learned senior counsel appearing for the respondent No.4. I have heard the learned AGP appearing for the respondent Nos.2 and 3. The breach alleged in this Contempt Petition is of the order dated 20th November, 2006 passed by the learned Judge of the Co-operative Court granting temporary injunction. 2. In a dispute filed by the petitioner-society for declaration and injunction, an application for temporary injunction was taken out. The dispute was filed under Section 91 of the 2 23cp133-11 Maharashtra Co operative Societies Act, 1960 to which initially the predecessor in title of the fourth respondent was impleaded as the opponent. On 16th August, 2006, on application for temporary injunction, ad-interim order was passed by the learned Judge of the Co-operative Court which reads thus: “Oppt. is hereby directed to maintain status quo in respect of using the suit premises for commercial purposes till further order. Issue show cause R/O. 16.08.06.” 3. By order dated 20th November, 2006 the said application was finally allowed by passing the following order: “1] Interim application Exh.5 is hereby allowed. 2] Status quo order passed on 16.8.06 is hereby confirmed till final adjudication of the dispute. 3] Parties to bear their own costs.” 4. It appears that the fourth respondent acquired the suit plot by registered sale deed dated 30th November, 2006. An application for impleadment of the fourth respondent was made by the petitioner. On 2nd November, 2010, an application was made by the petitioner praying that the earlier order of injunction passed by the Court be extended to the proposed respondents (partners of fourth respondent herein). On the said application, an order was passed on the very day by the Co- operative Court issuing show cause notice to the proposed 3 23cp133-11 respondent Nos.3 and 4. In the said order it was observed that the purchaser of the suit plot will be bound by the earlier order dated 20th November, 2006 and, therefore, as soon as the purchaser purchased the suit plot, the said order would operate against him. In the writ petition No.8162 of 2010, a partner of the fourth respondents filed an affidavit dated 29th November, 2010 stating therein that on 16th August, 2006 the bungalow on the suit plot was already being used for the non residential use. In the affidavit it was stated that the fourth respondent would abide by the order passed by the Co-operative Court on the interim application. 5. The learned counsel appearing for the petitioner pointed out that ad-interim relief granted on 16th August, 2006 prevented user of the bungalow for commercial purpose. He invited the attention of the Court to the order dated 2nd November, 2010. He submitted that the Co-operative Court specifically held that the fourth respondent being the purchaser will be bound by the interim order passed on 20th November, 2006. Inviting attention to the affidavit of the fourth respondent dated 29th November, 2010 filed in this Court, he stated that this affidavit makes it very clear that in breach of ad-interim order dated 16th August, 2006 and interim order dated 20th November, 2006, the bungalow on the suit plot was admittedly being used for non residential use. 4 23cp133-11 He also pointed out the subsequent order passed by this Court in writ petition No.8162 of 2010 on 13th June, 2011 which directed that until the dispute is heard and disposed of, the subject premises will be used only as an Art Gallery/Studio and the purpose shall not be altered or changed in any manner to any other commercial or non residential activities. He, therefore, submitted that in breach of the orders passed by the Co-operative Court, the non residential use continued till 13th June, 2011 when the Writ Petition was disposed of. He, therefore, submitted that this is a clear case where a gross breach was committed by the fourth respondent and its partners of the order of the injunction of the Co operative Court. 6. I have carefully considered the submissions. When the ad- interim relief was granted by the Co-operative Court on 16th August, 2006, the fourth respondent was not a party to the dispute. It appears that the application for impleadment of the fourth respondent was made on 2nd November, 2010. The petitioner is relying upon the order dated 2nd November, 2010 which is an order passed on an application made by the petitioner praying for extending the interim relief granted against the original opponent to the proposed opponents (partners of the respondent No.4 herein). Even the petitioner proceeded on the footing that the order of the injunction passed 5 23cp133-11 against the original opponent will not bind the fourth respondent. That is apparent from the application made on 2nd November, 2011. Otherwise, there was no occasion for the petitioner to apply for extending the order of injunction to the fourth respondent. It is true that in the order dated 2nd November, 2010, there are observations made by the learned Judge of the Co-operative Court that the transferee of the original opponent will be bound by the order of injunction. In my view, there is a serious doubt regarding the legality of the view taken by the learned Judge of the Co-operative Court that the transferee of the original opponent to the dispute will be automatically bound by the order of injunction passed earlier against the original opponent. It is not possible to exercise the jurisdiction under the Contempt of Courts Act, 1971 against the fourth respondent on the basis of the observations made in order dated 2nd November, 2010, especially when in the affidavit dated 29th November, 2010 filed by the fourth respondent in this Court it is stated that the non residential user was already commenced when ad-interim order was passed by the Co-operative Court on 16th August, 2006. 7. Now, by virtue of subsequent order passed by this Court in the Writ Petition No.3016 of 2011, the non residential user only to the extent of use for Art Gallery/Studio has been permitted till 6 23cp133-11 the disposal of the dispute. There is no allegation of the breach of the said order. It is well settled that the powers of this Court under the said Act of 1971 are required to be exercised with utmost care and caution. The powers are required to be exercised very sparingly. For the reasons which are recorded earlier, this is not a case where the jurisdiction under Contempt of Courts Act, 1971 can be exercised. Hence, the Contempt Petition is disposed of. 8. All contentions of the parties on the merits of the pending dispute are kept open. (A.S.OKA, J.)