1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR C.P.NO.31 of 2010 in A.O.NO.73 of 2008 (d) Shri Vishnu Ishwarrao Bhende ..vs.. Annasaheb Haribhau Ulne and anr. =-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, Office Memorandum of Coram appearances, Court's orders or directions & Registrar's orders. Court's or Judges Order =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Mr.M.R.Joharapurkar Adv. for the peti'nr. None for the respondents. C ORAM : Smt.R.P.SondurBaldota,J. DATED : 17th February, 2010. 1. The petitioner had filed Spl.Civil Suit No.100 of 2008, against the respondent in the court of Civil Judge (Sr.Dn.),Wardha for specific performance of an oral agreement in which he had claimed that pursuant to the oral agreement he had been put in possession of the suit property which is an agricultural field and had been cultivating the same. He had filed an application for interim relief for protection of the possession of the suit property. That application was allowed by the trial court. The appeal preferred against the order was dismissed by this court by its order dated 28th of August, 2008. The respondents then filed special leave petition in the Supreme Court being Special Leave to Appeal (Civil) No.24453 of 2008, which 2 was disposed of by the order dated 6th of April, 2009. The Apex Court, considering the fact that the suit was listed for evidence on 24th of April, 2009, disposed of the special leave petition with a direction to the trial court to expeditiously hear the suit preferably within a period of six months. By way of an interim relief it directed the parties to maintain status quo as on the date of the order. This order was passed obviously in view of the claim made by the respondents that the prima facie view taken by the trial court as well as the High court of the petitioner being in possession of the suit land was not correct, and that in fact the respondents were in possession of the suit land. 2. During trial, both the respondents filed their affidavit of examination-in-chief stating that they had never handed over possession of the suit property to the petitioner and they have continued to be in possession of it all along. In the affidavit, these respondents gave details of their possession including the crop cultivated by them. 3. By this present petition, the petitioner contends that both the respondents have committed contempt of the court by filing the affidavits of examination-in-chief with averements that they are in possession of the suit land despite the prima facie finding of the trial court about possession of the petitioner, which finding is confirmed up to the Apex court. It would be convenient to reproduce here the allegations made in the petition against the respondents. 3 “What is being tried to be pointed out that, when there are categoric orders again filing an affidavit contrary to the orders passed amounts to willful and purposeful act not to adhere to the orders passed by the courts in the proceedings and filing an affidavit in contravention of the orders that respondents are still cultivating and in possession of the suit field clearly makes out a case that they did not want to abide by the orders passed by this Hon'ble Court and Hon'ble Apex Court who are courts of record under Article 215 of the Constitution of India. It is thus submitted that the act of filing false affidavit is purposeful act in disobedience of the orders passed by this Hon'ble Court to state that the respondents are still in cultivating possession of the suit field and it amounts clearly that the respondents had no regards to the orders passed by this Hon'ble Court so also the Hon'ble Apex Court and acts of respondents clearly shows that they do not want to follow the rule of law and to abide the orders passed by this Hon'ble Court by making statement on affirmation which is false, and only with motive to show their disregard to this Hon'ble Court so also of the Hon'ble Apex Court and thus it is amply clear 4 on record that their acts and filing of affidavits is to be taken into consideration and they are required to be punished as per the provisions of Contempt of Courts Act even by granting simple imprisonment for a term which may extend to 6 months or with fine which may extent to Rs.2000/- or with both.” The petitioner, therefore, prays that this court should punish the contemnors by exercising powers vested in it under Section 12 of the Contempt of Courts Act read with Article 215 of Constitution of India. 4. The learned counsel for the petitioner submits that since the interim order passed by the trial court based on the finding that the petitioner was in possession of the suit property was confirmed by the High Court and was not set aside in terms by the Apex court, the respondents could not have filed affidavit of examination-in-chief avering that they are in possession of the suit property. In view of the finding, according to him, the averment of possession would be a false averment and it would indicate that the respondents do not want to abide by the orders passed by this court. He submits that even if the order was an interim order, the same would make no difference and the parties are expected to abide by it pending the final disposal of the proceedings. In the instant case, the suit has been dismissed after trial. The learned counsel relies 5 upon the decision of the Apex Court in Patel Rajnikant Dhulabhai and ors. ..vs.. Patel Chandrakant Dhulabhai and ors. A.I.R. 2008 SC 3016 in support of his submission as regards the interim orders. He particularly relies upon para 58 of the Judgment which reads as follows - 58. Speaking for the court, Jeevan Reddy, J. stated : “Can it be said that orders passed by the Civil Court and the High Court during this period of six years were all non est and that it is open to the defendants to flout them merrily, without fear of any consequence. The question is whether the said decision of the High Court means that no person can be punished for flouting or disobeying the interim/ interlocutory orders while they were in force, i.e., for violations and disobedience committed prior to the decision of the High Court on the question of jurisdiction. Holding that by virtue of the said decision of the High Court (on the question of jurisdiction), no one can be punished thereafter for disobedience or violation of the interim orders committed prior to the said decision of the High Court, would indeed be subversive of the Rule of Law and would seriously erode the dignity and the authority of the courts.” 6 There can be no dispute with the proposition that a party committing breach of interim orders cannot escape consequences of such disobedience during its subsistence even if subsequently the interim order is set aside, or the interim order ceases to operate. 5. But it is not the case of the petitioner that the respondents have committed breach of the order of interim injunction by committing an act which was prevented by the interim injunction. Had he committed such an act he would have been guilty of contempt of court. What the respondents have done is that they have participated in the trial by filing their affidavit of examination-in-chief, reiterating the claim made by them in their pleadings. This cannot amount to having disregard to the interim orders passed in the suit. 6. The observations of any court on an application for interim relief in a suit are prima facie observations. It is not the final or conclusive decision of the court on the question. A prima facie finding is open for being upset at the time of final hearing when the parties get an opportunity to lead evidence in the matter. Prima facie view is taken before the stage of evidence and is based on the probabilities of the case. As against this, the final decision in the suit is based on the evidence, oral as well as documentary, produced by the parties before the court. Therefore, it can never be said that a party reiterating its claim in the affidavit of examination-in-chief is guilty of 7 contempt when that claim had not been accepted by the court at the prima facie level of consideration. Therefore, the contempt petition is clearly misconceived. Hence, it is dismissed. JUDGE. chute