1 AO-913-2003.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Mhi APPEAL FROM ORDER NO. 913 OF 2003 IN NOTCE OF MOTION NO. 3116 OF 2003 IN CONTEMPT NOTICE OF MOTION NO. 957 OF 2003 IN S.C. SUIT NO. 8985 OF 1991 1. Motiram Manghu Keni ) 2. Smt. Satyabhama Motiram Keni, ) Both residing at 100, Bhandarwada, ) Malad (W), Mumbai 400 064. ).. Appellants (Orig. contemnors/respondents) Vs. 1. Mrs. Chmabai Pundalik Kini, (since deceased) of hIndu, Bombay Indian Inhabitant, ) residing at 100 Bhandrawada, Malad (W), ) Boombay 400 064. ).. Org.Plaintiff. 2. Mrs. Vrinda Gokuldas Pai, ) of Bombay Indian Inhabitant, ) last known address ) Gokul Mansion, Gaothan Road, ) Bhandarwada, Malad (W), Mumbai 400 064).. Petitioner (Org. defendant No.1) 3. M/s. Dharti Developers, ) C/o. Surya Group, carrying on business ) at 34, Malanii Estate, Opp. Swadsagar ) Hotel, S.V.Road, Borivali (W), ) Bombay 400 092. ) 4. M/s. Thakur Estate Development ) Pvt.Ltd. Limited Company incorporated ) under the Companies Act, 1956, having ) 2 AO-913-2003.sxw its office at Thakur House, Ashok Nagar, ) Kandivli (E), Bmbay 400 101. ) 5. Shri Uday Himathal Shah, ) of Bombay, Indian INhabitant, ) carrying on business at Ravji Premji ) Apartment,S.V.Road, Borivli (W), ) Bombay 400 092. ) 6. The Court Receiver, High Court, Bombay. ).. Respondents (Org.defendants) 7. Kashinath Motiram Keni alias ) Kashinath Pundalik Keni ) residing at 100, Bhandarwada, ) Malad (W), Mumbai 400 064. )..One of the contemnors. Mr. Vishal Thaker i/b. Mr. Vinod Thaker ,Advocate, for the appellants CORAM: J.H.BHATIA,J. DATE : 6th June , 2011. JUDGMENT: 1. The Appeal is filed by the original contemnors/respondent Nos. 3 and 4 against the order dated 14.10.2003 passed by the learned Judge of the City Civil Court, Bombay in Contempt Notice of Motion No. 957 of 2003 taken out by the original defendant No.1, who is respondent No.2 in the present Appeal. 2. Heard the learned Counsel for the appellants. None appears for the respondents. 3 AO-913-2003.sxw 3. To state in brief, deceased respondent No.1 - Chimabai, who was the plaintiff in S.C. Suit No.8985 of 1991, had claimed certain reliefs against the defendants Nos. 1 to 4, who are respondent Nos. 2 to 5 in the present Appeal. It appears that the original plaintiff Chimabai was owner of a piece of land and she had entered into an agreement for development with the defendant No.1 i.e. respondent No.2 on 27.7.1982 and as per that agreement, after development, the defendant No.1 was to give her 325 sq. ft. of constructed area. The suit was decreed by consent terms dated 10.2.1992 whereby the defendant No.1 agreed to give possession of a flat of 325 sq. ft. or thereabout marked in red colour boundary in the Map as soon as the construction would be completed. In the consent terms, it was mentioned that the plaintiff, her relatives,servants, agents and assigns shall not interfere with the construction work of the existing building. The original plaintiff took out Notice of Motion No.3736 of 2000 alleging that the defendant No.1 had not completed the construction and was not giving possession of the flat to her inspite of the consent terms. In that proceeding, on 5.3.2002, Court Receiver was appointed by the learned Judge to take possession of the plinth area on which construction was to be made, so that after possession was taken by the Court Receiver, construction could be undertaken by the defendant No.1. When the Court Receiver approached the site for taking possession, an 4 AO-913-2003.sxw objection to the same was taken by the present appellants. They contended that they were in possession of that portion in their own right as owners and as per the agreement dated 18.6.1988, entered into between the appellant No.1 and the defendant No.1, the appellants were to be provided with a flat of 180 sq. ft. after completion of construction and before that alternative accommodation was to be provided to them. According to them, their right was independent of rights of original plaintiff and that they were not covered or governed by the consent terms between the plaintiff and defendant No.1. 4. In view of the objection, the defendant No.1 took out Contempt Notice of Motion No.957 of 2003 seeking directions to the Court Receiver to take forcible possession of the said plinth portion of the property situated at Gokul Mansion, Gaothan Road, Bhandarwada, Malad (West), Mumbai with the help of the police and to hand over formal possession of the same to the defendant No.1 for completing the construction of the ground plus two floors and for providing a flat of 325 sq. ft. on the ground floor to the plaintiff. It was contended that objection to taking possession by the Court Receiver was taken by the plaintiff and three others at the instance of the plaintiff. The plaintiff and one Kashinath, who were shown as respondent Nos. 1 and 2, did not appear to contest that Notice of Motion. The said Contempt Notice of Motion was contested by the 5 AO-913-2003.sxw present appellants, who were respondent Nos. 3 and 4 therein, alleging that they have independent right over the said property. It was contended that the Contempt Notice of Motion could not taken nor any injunction could be sought by filing such Notice of Motion as neither any suit was pending nor the present appellants were parties to such suit nor they were parties to the consent terms filed in the suit. In support of their contention, they produced several documents. 5. From the record, it appears that the appellant Nos. 1 and 2 are son-in- law and daughter respectively of the original plaintiff Chimabai. The original plaintiff and the defendant No.1 had entered into an agreement dated 27.7.1982 for development of the piece of land bearing Survey No.473, Hissa No.6 CTS No. 424 (Part) admeasuring 359.9 sq. mtrs. and after development, the defendant was to give possession of a flat admeasuring 325 sq. ft. built up area to the plaintiff. On the basis of that agreement, the plaintiff had filed Suit No.8985 of 1991 against the defendant Nos. 1 to 4 and that suit was decreed as per the consent terms dated 10.2.1992. In fact, the consent terms only confirmed the original agreement and the defendant was to hand over possession of the flat of 325 sq. ft. to the plaintiff after completing construction. The flat to be given to her was shown by red colour in the map filed with the consent terms. Admittedly, the appellants were not parties either to the agreement dated 27.7.1982 or in the suit or to the consent 6 AO-913-2003.sxw terms. It was contention of the defendant No.1 and that contention appears to have been accepted by the trial Court, that the present appellants were creating obstruction in delivering possession of the disputed plinth area to the Court Receiver as relatives or representatives of the plaintiff. However, the record reveals that on 18.6.1988, a separate development agreement was entered into between the appellant No.1 and the defendant No.1. The said agreement clearly reveals that defendant No.1 was developing the land CTS No.424 admeasuing 359.9 sq. mtrs. but it was found that the appellant No.1 Motiram was in possession of 50 sq. mtrs. of the land as owner by adverse possession for 35 years and his ownership by adverse possession was recognized and admitted by the defendant No.1. In view of this, right of the appellant No.1 - Motiram on 50 sq. mtrs. area of that land, the defendant No.1 agreed to develop that land and to hand over possession of 180 sq. ft. built up area on the ground floor of the building after completion of construction. The cost of the land and the cost of the alternative accommodation were estimated and as per the said agreement, the appellant No.1 was to pay amount of Rs.5,000/- to the defendant No.1 at the time of taking possession of the alternative accommodation i.e. the flat which was to be given to him after construction in terms of the contract. This agreement finds further support from the correspondence which took place between the appellant No.1 and the defendant No.1. The period was also fixed for completing the 7 AO-913-2003.sxw different stages. The construction was to be completed within 2-1/2 years from the date of agreement. As per para 7 of the said agreement, if the builder i.e. defendant No.1 would not give actual physical possession of the alternative accommodation to the owner i.e. the present appellant No.1 within the stipulated period of 2-1/2 years from the date of execution of the agreement, the said agreement shall be deemed to be automatically terminated and the ownership with the actual physical possession of the land shall be deemed to have been restored to the appellant No.1. It is to be noted that the said agreement was on a stamp paper of Rs.10/-, but it was not registered. 6. It appears that after defendant No.1 had entered into the development agreement with the plaintiff No.1 in 1982, it was revealed that the plaintiff No.1 was not in possession of whole of the land and about 50 sq. mtrs. area of the land was in adverse possession of the appellant No.1 Motiram and he claimed ownership of that portion on the basis of adverse possession. In view of this position, the defendant No.1 entered into an independent agreement with the plaintiff No.1 in 1988 and agreed to take possession of the said 50 sq. mtrs. area from the appellant No.1 and to give possession of a flat of 180 sq. ft. after completion of the construction. The possession was to be given within 2-1/2 years from the date of the agreement and as per para 7 of the agreement, if the 8 AO-913-2003.sxw possession would not be given as per the said agreement, the possession of original 50 sq. mtrs. of land would automatically stand restored to the owner i.e. the appellant No.1. It appears that the construction was not completed nor the defendant No.1 handed over possession of the accommodation of 180 sq. ft. to the appellant No.1 as per the terms of the agreement of 1988. In view of the terms of the contract, the possession of 50 sq. mtrs. area was deemed to have been restored to the appellant No.1 automatically. 7. The Court Receiver was appointed by the learned Judge on 5.2.2002 in Notice of Motion No.3736 of 2000 and when the Court Receiver went to take possession of the plinth area, the objection was taken by the present appellants on the basis of their own rights, independently of the original plaintiff. Thereafter, in the year 2003, the defendant No.1 filed Contempt Notice of Motion No.957 of 2003. This indicates that inspite of lapse of about 25 years after the agreement of 1988 between the defendant No.1 and the present appellant No.1, the defendant No.1 could not complete the construction and hand over possession of the accommodation to the appellant No.1 as per the agreement with him. The learned trial Court observed that the alleged agreement was not a registered document and the present appellants had not filed any suit for specific performance of that contract and that even if such suit would be filed, it was hopelessly time-barred. I 9 AO-913-2003.sxw am afraid, the learned trial Court did not properly appreciate and understand the contents of the agreement between the appellant No.1 and the defendant No.1. In fact, if the defendant No.1 wanted implementation of that agreement and to take possession of the land on the basis of that agreement, she could have filed a suit or any other proceeding against the appellants. As noted above, due to failure of the defendant No.1 to give alternative accommodation within the stipulated period of 2-1/2 years from the date of agreement, the possession of 50 sq. mtrs. area was automatically restored to its owner i.e. appellant No.1. Thus, prima facie the appellant No.1 was in possession of the 50 sq. mts. area as owner when the Court receiver went to take possession. In view of the facts and circumstances, it was impossible to come to conclusion that the appellants were acting merely as relatives,agents or servants of the original plaintiff while taking objection to taking possession of the property by the Court Receiver. They had taken objection on the basis of their own rights in the property and if defendant No.1 wanted to take possession, she could have filed suit or any other proceeding, as could be permissible under the law, against the appellants. 8. The Contempt Notice of Motion was take out by the defendant No.1 under Order XXXIX Rule 2-A of C.P.C. Rule 2-A reads thus :- 10 AO-913-2003.sxw "2-A. Consequence of disobedience or breach of injunction - (1) In the case of disobedience of any injunction granted or other order made under rule 1 or rule 2 or breach of any of the terms on which the injunction was granted or the order made, the Court granting the injunction or making the order, or any Court to which the suit or proceeding is transferred, may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the Court directs his release." From the language of clause (1) of Rule 2-A, it is clear that in case of disobedience of injunction granted or the other order made under rule 1 or rule 2 or breach of any of the terms on which the injunction or order was made the Court granting the injunction or making the order may order the property of the person guilty of disobedience or breach, to be attached and if necessary such person may be detained in civil prison. The order of detention can be passed under rule 1 of Order 39 and the order of injunction can be passed under rule 2 to restrain repetition or continuation of breach. These orders can be passed only until disposal of the suit or until further orders. 11 AO-913-2003.sxw 9. In the present case, the Suit No.8985 of 1991 was already disposed of by consent terms dated 10.2.1992. After the suit was disposed of, the Court could not have passed any order of temporary injunction under Order 39 Rules 1 and 2 and therefore question of disobedience of such order would also not arise. Further, the action for disobedience of the order can be taken only against the party against whom such order has been passed or a person who acts at the behest of the party against whom such order is passed. As noted above, the appellants were not parties to the suit or to the consent terms by which the suit was disposed of. No order of injunction was ever passed against them and therefore they could not be held guilty of disobedience or breach of any order passed against them. In view of the facts and circumstances noted above, the trial Court clearly committed an error in holding that the appellants were acting on behalf of and as relatives, agents or servants of the original plaintiff. 10. Therefore, in view of the facts and circumstances, the Contempt Notice of Motion could not have been take out by the original defendant No.1 against the present appellants nor in such notice of motion any order could be passed to take forcible possession of the property from the appellants. If the defendant No.1 wanted to take possession of 50 sq. 12 AO-913-2003.sxw mtrs. area of the land in dispute she could take independent action against the appellants. 11. For the aforesaid reasons, the Appeal is allowed and the impugned order dated 14.10.2003 in Notice of Motion No.957 of 2003 is hereby set aside. (J.H.BHATIA,J.)