Cont. Case (Crl.) No. 0009/2009 Page 1 of 27 * IN THE HIGH COURT OF DELHI AT NEW DELHI + Cont. Case (Crl.) No. 0009/2009 % Date of Decision: 8.12.2010 Abdul Mueed & Ors. …. Petitioners Through Mr. Ravinder Sethi, Sr. Advocate with Mr. Simran Mehta and Ms. Shalini Kapoor, Advocates Versus Hammad Ahmed & Anr. …. Respondents Through Mr. J.P. Sengh, Sr. Advocate with Mr. Bobby Lao, Advocate CORAM: HON’BLE MR. JUSTICE ANIL KUMAR HON’BLE MR.JUSTICE S.L.BHAYANA 1. Whether reporters of Local papers may be allowed to see the judgment? YES 2. To be referred to the reporter or not? NO 3. Whether the judgment should be reported in the Digest? NO ANIL KUMAR, J. * 1. This is an application by the petitioners under Section 2(c) 11, 12 & 15 of the Contempt of Courts Act, 1971 r/w Article 215 of the Constitution of India against Abdul Mueed, the respondent for initiating criminal contempt proceedings on account of allegedly filing of false affidavit in an appeal being FAO No. 262 of 2005. The said appeal was filed by an ex-employee of petitioner No.4 against dismissal of his petition under section 92 of the Code of Civil Procedure. Cont. Case (Crl.) No. 0009/2009 Page 2 of 27 2. The petitioners have contended that petitioner No.1 is the Chief Muttawalli of Hamdard Dawakhana (Wakf) Laboratories whereas the petitioners No. 2 & 3 are other Muttawallis. The respondent Hammad Ahmed is also stated to be a Muttawalli. 3. The grievances of the petitioners are that an ex-employee of Hamdard Dawakhana (Waqf) Laboratories had filed a petition under Section 92 of the Civil Procedure Code to institute a suit against Hamdard Dawakhana (Waqf) Laboratories and against its Chief Muttawallis and other Muttawallis. 4. In the petition under Section 92 of the Civil Procedure Code, the respondent, Shri Hameed Ahmed and his son had filed replies before the District Judge. The respondent filed an affidavit deposing and contending that the petitioners had disposed of the properties of Waqf without his knowledge and consent, though he is one of the Muttawali. 5. The suit filed by the ex-employee of Hamdard Dawakhana (Waqf) Laboratories under Section 92 of the Civil Procedure Code was, however, dismissed in view of Section 85 of the Waqf Act, 1995 contemplating that the jurisdiction of the Civil Court is barred under the provision of Waqf Act, 1995. Cont. Case (Crl.) No. 0009/2009 Page 3 of 27 6. In the said petition filed under Section 92, the petitioners had filed an application under Section 340 of Crl. Procedure Code for allegedly filing a false affidavit. However, the application of the petitioners for taking action for filing a false affidavit by the respondent was dismissed. The trial Judge had held that it is well settled that the proceedings under section 340 of Cr.P.C should not be permitted to be utilized by a party to serve his own ends or to satisfy his own urge for revenge and it seems that was the purpose of the petitioner. The observations while dismissing the application under Section 340 of Cr. P.C by the trial Judge are as under: "24. Perusal of the record further shows that there are several disputes between the parties and various litigation are pending between the parties and in the petition under section 92 of the CPC, all the applicants as well as the respondents were the defendants, but the petitioners in the petition under section 92 of the CPC have not afford any similar application against any of these parties. Furthermore, Further more as discussed in various judgments, as above, it is well settled law that the proceedings under section 340 Cr. P.C should not be permitted to be utilized by a party to serve his own ends court to satisfy his own urge for revenge and it seems that the same has been done by the applicants, in the present case. From the material on record, it appears that the object of filing of the present application was not so much vindicate purity of the administration of justice, but to see that the respondents, who have been contesting various litigations with the applicants, herein, before various courts, be punished under the provisions of penal law. From the record, it is clear that the applicant have filed the present application with the motive, only to gratify his feeling to revenge and to use the present proceeding as an instrument of oppression and harassment to the respondents. " Cont. Case (Crl.) No. 0009/2009 Page 4 of 27 The trial court while dismissing the application did not determine whether the affidavit filed by the respondent was false or not. It was, however observed prima facie that the affidavit was not false. Against the dismissal of their application under Section 340 of the Crl. Procedure Code, an appeal has been filed by the petitioners, which is also pending adjudication. 7. The learned counsel has further elaborated the facts and has contended that against the order of dismissal of the suit filed by the ex- employee under Section 92 of the Code of Criminal Procedure, an appeal being FAO No. 262-264 of 2005 was filed in which another affidavit dated November, 2005 was filed deposing similar facts that though the respondent is a senior Muttawalli he was not informed of the details of the sale of properties comprising of four flats at Rishi Apartment, Farm House at Pul Pehaladpur, One Garage at Lal Kuan and property bearing No. 3636 Kara Dina Bg. Khan, Lal Kuan, Delhi. 8. The learned senior counsel for the petitioner, Mr. Sethi has contended that though correctness of the affidavit dated November, 2005 of Sh. Hammad Ahmed, son of late Sh. Hakim Haji Abdul Hameed filed in FAO No. 262/05 titled Nauman Khan & Anr. Vs. Sh. Abdul Mueed & Ors., has not been adjudicated and decided, deposing that though he is a Senior Muttawalli he was neither informed of the details of the sale of flats No. 601, 602, 603, 604, Rishi Apartment, Cont. Case (Crl.) No. 0009/2009 Page 5 of 27 Alakhnanda, Tara Apartment, New Delhi-19 and property at 3636, Kara Dina Bg Khan, Lal Kuan, Delhi and Farm House at Pul Pehaladpur, New Delhi nor did Abdul Mueed permit anyone to disclose the financial affairs of the defendant No.1 to the respondent. 9. To refute the allegation of the respondent and contend that the plea raised by the respondent in the affidavit is false, the petitioners have relied on the entries of the attendance register of the meeting of Majlis-e-Aiwaan of Hamdard National Foundation (India) held on 21st December, 2001 which bears respondent‟s signatures at item No. 2 and approval of Majlis-e-Aiwaan, Governing Body, Proposal regarding sale of four Rishi Apartment Flats, Alakhnand, New Delhi which was approved on the same date and similarly, the meeting of Majlis-e-Aiwaan of Hamdard National Foundation (India) held on 17th October, 2002 which bears the signature on the attendance register and shows the respondent's presence. Meeting on that date had approved the sale of 15 Bighas Agricultural land on Mehrauli-Badarpur Road. Though the attendance register is signed by the respondent which is also admitted by him, but the minutes of the meeting stipulating as to what transpired and what was decided does not bear the signatures of the respondent. 10. It is contended by the petitioners that in view of the documents filed by the respondent, the affidavit filed in FAO No. 262-264 on Cont. Case (Crl.) No. 0009/2009 Page 6 of 27 November, 2005 is false and therefore criminal contempt has been committed by the respondent. It is further pleaded by the petitioners that permission was granted under Section 15 of the Contempt of Courts Act, 1971 to file the contempt petition and in the circumstances this Court has to adjudicate that the affidavit of Sh. Hammad Ahmed is false and take action by invoking criminal contempt jurisdiction as the false affidavit filed by the respondent has prejudiced or interfered with the due course of judicial proceedings and has obstructed the administration of justice as contemplated under Section 2(c) of Contempt of Courts Act, 1971 defining criminal contempt. 11. The learned counsel has contended that under Section 17(5) of the said act since any person charged with the contempt under Section 15 can file an affidavit in support of his defense and the Court has to determine the matter of charge either on the affidavits filed or after taking such further evidence as may be necessary, it is imperative that in order to determine the falsity of the affidavit of November, 2005 of Hammad Ahmed, respondent, the Court can take evidence and determine that the false affidavit has been filed and after determining that the affidavit filed in the appeal was filed, take action for committing contempt of Court. 12. Relying on Welset Engineers and Anr. vs. Vikas Auto Industries & ors, 2006 (32) PTC 190 (SC) it is contended that for determining the Cont. Case (Crl.) No. 0009/2009 Page 7 of 27 matter of the charge in a contempt petition, the Court may rely either on the affidavit filed or may decide after taking such evidence as deems fit and merely because disputed questions of fact are involved, it would not preclude the Court from exercising its jurisdiction under the Contempt of Courts Act, 1971. The learned senior counsel further contended that making false statements on oath may deliberately constitute criminal contempt and relied on Murray and Company vs. Ashok Kr. Newatia & Anr. (200) 2 SCC 367. Mr. Sethi has also relied on Pallav Sheth vs. Custodian & Ors., (2001) 7 SCC 549 to contend that the decision of Om Prakash Jaiswal vs. D.K.Mittal, (2000) 3 SCC 171 had been over ruled by the Supreme Court in the case of Pallav Sheth (supra). Mr. Sethi, learned senior counsel has also relied on Dhananjay Sharma vs. State of Haryana, (1995) 3 SCC 757 to contend that filing false affidavit amounts to conduct which has the tendency to interfere with the administration of justice or the due course of judicial proceedings and amounts to commission of criminal contempt. 13. The court had issued notice to the respondent pursuant to which a reply has been filed on behalf of respondent contending inter-alia that the respondent has not filed any false affidavit and the contempt petition is a device to prevail upon the respondent to dissuade him to seek remedies against the petitioners. It is asserted that the contempt petition filed by the petitioners is barred by law of limitation and is not maintainable. It has also been pleaded that the petitioners remedy Cont. Case (Crl.) No. 0009/2009 Page 8 of 27 under section 340 of Criminal Procedure Code is still pending and in the circumstances the petitioners cannot invoke the Criminal contempt Jurisdiction of the Court. According to respondent the petitioners have filed four contempt petitions and two applications under section 340 of Criminal Procedure Code in different courts against the answering respondent on similar allegations with a view to harass and intimidate the respondent. 14. The respondent stated that he had not signed the minute books as the minutes were not circulated nor his objections against disposing the properties were recorded. According to him he had only signed the attendance sheet. It is asserted that the minute book is separate from the attendance register. The respondent also contended that petitioner no.1 has illegally appointed Petitioner No. 3 who is his son as fifth Mutawalli of respondent no.4 in contravention of the wakf deed and he is using the funds of respondent no.4 for his personal use instead of Charitable public purpose which is the major object and purpose for which respondent no.4 wakf was created. The respondent also contended that the minutes of meeting dated 21st December 2001 does not bear his signatures nor were the minutes circulated and what is stated in the minutes was not decided in the two meetings. 15. The respondent also disclosed that the petitioners had filed a contempt petition no. 1479-1482 of 2005 which was withdrawn by Cont. Case (Crl.) No. 0009/2009 Page 9 of 27 order dated 20.12.2005. Thereafter another contempt petition was filed being Cont. Case no. 64-67 of 2006 titled as Abdul Mueed & Ors. vs. Hammad Ahmed & Anr. which was vehemently pursued but when the petitioners realized that the court may dismiss the petition, it was withdrawn by the petitioners with liberty to file an appropriate legal proceeding by order dated 17.02.2009 and present contempt proceedings has been filed thereafter. 16. The learned counsel for the respondent has also relied on AIR 1975 Allahabad 366, Gulab Singh & Anr. vs. The Principal, Sri Ramji Das; 70 (1997) DLT 60, Indian Music Industry (IMI) vs. Charanajit Gupta @ Chandi & Ors.; 154 (2008) DLT 647, R.P. Malik vs. Anil Sharma & Ors. and (2000) 3 SCC 171, Om Pakash Jaiswal vs. D.K. Mittal and Anr. to contend that the contempt petition is barred by limitation and it cannot be held that the respondent has committed a criminal contempt. 17. This court had directed the petitioners to produce the relevant original attendance register and minute books. The original record directed by the court was produced by the petitioners which was perused by this court. The alleged false affidavit was filed by the respondent in November, 2005 regarding the minutes of 21st December, 2001 and 17th October, 2002. If the petitioners knew that the affidavit filed by the respondent in November, 2005 was false whether the Cont. Case (Crl.) No. 0009/2009 Page 10 of 27 contempt petition filed on 31st March, 2009 would be within time or not is the first question to be determined. 18. To determine whether the Criminal Contempt petition is within time or not the following dates and events would be relevant: November, 2005: Alleged false affidavit filed by the respondent in FAO No.262-264/2005 contending that though he is senior Mutawalli, he is neither aware nor is informed of the details of the property disposed of as the Abdul Mueed does not permit any one to disclose the financial affairs. 19.11.2005: Petitioners filed contempt case (C) No. 1479- 1482 of 2005 in FAO No. 262/2005. The said contempt petition was filed with respect to the affidavits contending that the respondent is not aware or informed about the details of properties sold filed in: (i) Suit No. CS (OS) No. 326 of 2005 titled Hammad Ahmed vs. Asad Mueed and others. (ii) C.S. (OS) No. 1149 of 2005 titled Hammad Ahmed and another Versus Abdul Mueed and others. (iii) FAO No. 262/2005 titled Mohd. Nauman Khan and others vs. Abdul Mueed and others. 20.12.2005: The petitioners alleged that they were advised that one contempt petition in respect of false affidavits filed in different cases would not be maintainable and as such the petitioners withdrew the said contempt case No.1479-1482 of 2005 in FAO No. 262 of 2005 with liberty to file a fresh petition. Cont. Case (Crl.) No. 0009/2009 Page 11 of 27 9.01.2006: The Petitioners filed another petition for Criminal Contempt being CCP No. 64-67 of 2006 in FAO No. 262 of 2005 against the respondent for contumaciously and deliberately filing a false affidavit in Court. Though the petitioners had sought initiation of Criminal Contempt, however, permission as contemplated under law was neither applied nor taken before filing the said contempt petition. 2.11.2006: The Respondent filed a reply taking the plea that the contempt petition will not be maintainable. The contemnor still persisted with the contempt petition and rather contended that in reply the respondent has filed another false affidavit. 17.2.2009: The petitioners withdraw the said contempt petition with the liberty to take appropriate legal proceedings. 27.2.2009: The applicants applied vide their letter to the standing counsel, State of NCT of Delhi, Delhi High Court, New Delhi for approval to file the Criminal complaint. 12.3.2009: The standing counsel granted approval to file the Criminal contempt petition. 20.3.2009: The approval was received by the petitioners. 31.3.2009: Petition filed for Criminal Contempt by the petitioners under section 2 (c) read with section 11 and 12 of the Contempt of Courts Act, 1971 with an application under Section 5 read with Section 14 of the Limitation Act and 151 of CPC 22.12.2009: The respondents filed their reply to the contempt petition stating that the petitioners have filed 4 Contempt Petitions and 2 Applications u/s 340 Cr. P.C. in different courts against the answering respondent and his son on similar allegations with a view to harass and intimate the respondent and Cont. Case (Crl.) No. 0009/2009 Page 12 of 27 contempt petition is barred under section 20 of the Contempt of Courts Act, 1970. 19. The Limitation for initiating contempt by the Court either on its own motion of otherwise is one year from the date on which the contempt is alleged to have been committed. This is not disputed that for the present petition, the alleged contempt was committed when the affidavit was filed by the respondent in FAO 262-264 of 2005. According to section 20 of the Contempt of Courts Act, 1970, the contempt could be initiated against the respondent till November, 2006. Admittedly the present petition is not filed by the petitioners by November, 2006. The next question is whether the petitioners are entitled for exclusion of period spent on filing other contempt petitions under section 14 of the Limitation Act, 1963 or any other provision. The petitioners have also sought condonation of delay in filing the petition under section 5 of the Limitation Act. 20. The petitioners have invoked section 5 & section 14 of the Limitation Act, 1963. Section 5 for condonation of delay and section 14 to contend that the time taken in pursuing other petitions for contempt be excluded. It has been held in; T.M.A. Abdul Hamed vs.S.Radhakrishnan, 1989 LW (Crl) 237 that delay in initiating contempt proceedings cannot be condoned. In Krishnalal Chhoteylal, (1987) 13 ALR 44, it was held that the provisions of the Limitation Act, Cont. Case (Crl.) No. 0009/2009 Page 13 of 27 1963 do not apply to the Contempt of Courts Act, 1971. No intervening event or order stops the running of time specified under section 20 of the Contempt of Courts Act, 1971 as was held in Golcha Advertising Agency v. The State of Maharashtra, (1990) 2 Bom CR 262 (Bom). In V.M.Kanade vs Madhao Gadkari, (1990) 1 Mah LR 544 (Bom), it was held initiation of any proceedings for contempt is barred after the expiry of a period of one year from the date on which the contempt is alleged to have been committed. 21. The learned counsel for the respondent has relied on AIR 1975 Allahabad 366, Gulab Singh & Anr. vs. The Principal, Sri Ramji Das holding that no provision stops running of the time of limitation of one year under section 20 of the Contempt of Courts Act, 1971. It was categorically held that “ there is no provision under the Contempt of Courts act which in any manner stops the running of time of one year contemplated by Section 20 of the Act…. the time, within which the proceedings for contempt are to be initiated, is prescribed by the Contempt of Courts Act and not by the Limitation Act. ” In para 8 of the said judgment at page 367 it was held as under: “8. Sri Bhattacharya, learned counsel for the petition, contended that the period during which the writ petition no. 1015 of the 1973 was pending should not be counted in computing the period of one year under section 20 of the Contempt of Courts Act. This is a hollow argument without any thoughtful content in it. There is no provision under the Contempt of Courts Act which in any manner stops the Cont. Case (Crl.) No. 0009/2009 Page 14 of 27 running of time of one year contemplated by Section 20 of the Act. Sri Bhattacharya then made a more hollow argument to the effect that the Indian Limitation Act applies. We fail to understand what benefit can Sri Bhattacharya derive from the provisions of the Indian Limitation Act when the time, within which the proceedings for contempt are to be initiated, is prescribed by the Contempt of Courts Act and not by the Limitation Act.” 22. The learned counsel for the respondent has also relied on (2000) 3 SCC 171, Om Prakash Jaiswal vs. D.K.Mittal & Ors. to contend that Section 5 of the Limitation Act is not applicable under Section 20 of the Contempt of Courts Act, 1971. The counsel for the respondent has also relied on Indian Music Industry (IMI) v. Charanajit Gupta @ Chandi & Ors: 70(1997) Delhi Law Times 60 to contend that Section 20 of the Act talks of “initiation” of proceedings by a court. It is axiomatic that “initiation” of contempt proceedings would be only when the Court has applied its mind and passed some order. “Institution” of a petition for proceedings under the Act cannot be equated with “initiation” of proceedings by court. The two are distinct stages. The first is the institution, which is just filing of the petition in the court and the second is its consideration and initiation of action thereon by the Court. Thus, if an application for taking action under the Act is filed within a period of one year from the date of the alleged commission of contempt, but the Court has passed no order thereon before the expiry of one year from the said date, such application automatically fails because the Court could not apply its mind to complaint within a period of one year. Cont. Case (Crl.) No. 0009/2009 Page 15 of 27 23. The learned counsel for the respondent has also relied on R.P. Malik vs. Anil Sharma and Ors., 154 (2008) DLT 647 holding that Section 5 of the Limitation Act, 1963 does not deal with the condonation of period of limitation prescribed under the Contempt of Courts Act, 1971 and therefore, the delay in initiating proceedings under Section 20 of the Contempt of Courts Act, 1971 cannot be condoned under the provisions of the Limitation Act. 24. The learned counsel for the petitioner has relied on Pallav Sheth vs Custodian and Ors., (2001) 7 SCC 549 to contend that the provisions of Limitation Act, 1963 would apply to Contempt of Courts Act, 1971 and considering that the petitioners had been filing contempt petitions which were allowed to be withdrawn with liberty to file appropriate proceedings, the present petition is within time. 25. The Allahabad High Court in Islamuddin vs. Sri Umesh Chandrara Tiwari and Anr. 2009(4) AWC 3680 had dealt with the question of power of the Court to condone and waive the delay in initiation of Contempt Proceedings under section 12 of the Contempt of Courts Act, 1971. The following issues were crystallized by the Court and answered. The issues considered by the division bench of the Allahabad High Court were as follows: Cont. Case (Crl.) No. 0009/2009 Page 16 of 27 (i) Whether the decision in Pallav Sheth case : 2001CriLJ4175 , can be construed so as to apply all the principles enshrined in the provisions of the Indian Limitation Act (except Section 17 thereof) and as to whether the same can be made applicable to proceedings to be initiated under Section 12 of the Contempt of Courts Act, 1971. (ii). Whether the High Court in exercise of its powers for initiating contempt of its Court or the contempt of its subordinate court or Tribunal, as the case may be, has the power to condone and waive the delay in initiation of contempt proceedings under Section 12 of the Courts Act. In paras 75 and 76 of the said judgment of Islamuddin (supra) the Allahabad High Court had held as under: “75. Thus, the judgment in Pallav Sheth (supra), in our view, cannot be said to be an authority on the question as to whether the provisions of Section