1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CONTEMPT PETITION NO.265 OF 2008 Vishal J. Bhatia .. Petitioner Versus M/s.Batra Industries (I) & Ors. .. Respondents Mr.M.M.Vashi with Ms.Prachi Khandge for petitioner Mr.P.M.Shah for respondent Nos. 1 to 3. CORAM : S.C.DHARMADHIKARI, J. DATE : 21st April 2010. P.C.: 1] The petitioner is the original plaintiff in the suit before the trial court and the respondents are original defendants. 2] Petitioner filed a suit being RAD Suit No.226 of 2008 for a declaration that he is tenant of respondent Nos. 1 to 4. He took out interim application in the said suit and by an order dated 27th June 2008 the Small Causes Court granted an injunction restraining respondent Nos. 1 to 4 from obstructing the petitioner and his workers from entering 2 into and/or using the premises. It is the case of the petitioner that this order was passed on 26th/ 27th June 2008. The petitioner and his workers on 10th June 2008 visited factory premises of the respondent and pointed out the Court order and requested not to obstruct the entry in the premises. It is alleged that inspite of showing the order to the representative of respondent No.3, he refused to open the lock. He stated that he has not received any order from the Court and, therefore, he will not open the lock. Further, he informed that presently one Jitendra Chandan is in Daman and it will take three hours for him to reach at the premises. It is alleged that original defendant was aware of the court order. Despite this fact, petitioners and workers were prevented from entering the suit premises and it is wilful and deliberate disobedience of the interim order of the trial court. 3] Reliance is also placed by Mr.Vashi appearing in support of this petition on a letter dated 10th July 2008 addressed to the petitioner’s Advocate by the Advocate for respondents wherein the Advocate for respondent states that respondents are in possession of the premises and 3 it is the petitioner who tried to forcibly dispossess them. Mr.Vashi submits that the contents of this letter would show that not only there is a breach wilfully committed of the order but the contempt is aggravated by this correspondence. For all these reasons and when the order of the trial court was in force, the contempt petition should be admitted. 4] Mr.Jitendra Chandan – respondent No.3 has filed a reply to this contempt petition. He has stated that this contempt petition is not maintainable. He submits that there is no case of disobeying the order wilfully and deliberately. On the other hand, reliance is placed upon a leave and licence agreement whereunder the plaintiff – petitioner is claiming to be in possession of 10000 sft. However, the area is 3000 sft. Further, the petition is vague and ambiguous. Only one incident of 10th July 2000 is highlighted that too without proper description of the suit premises and an attempt is made to prejudice this Court against the petitioner. 5] My attention is invited by Mr.Shah to para 10 of the affidavit in 4 reply and he submits that the respondent No.3 has not committed any contempt. Even the other respondents cannot be said to be guilty of civil contempt. For all these reasons, contempt petition be dismissed. 6] The contempt petition proceeds on the basis that the petitioner carries on business of alloy steel casting and he required premises on rent basis and, therefore, he took the factory shed admeasuring 3000 sft., office premises admeasuring 2000 sft., i.e. 1000 sft on the ground floor and 1000 sft on the mezanine floor and surrounding open area admeasuring 5000 sft on tenancy basis. It is alleged that respondent Nos. 1 to 4 pursuaded the petitioner to sign leave and licence agreement, though the premises was given on tenancy basis and first such agreement was signed on 1st July 1983. There were different leave and licence agreements and, thereafter, respondent Nos. 1 to 4 got the electric supply disconnected, started obstructing the petitioner and his workers and representatives from entering the suit premises and, therefore, police complaint was filed. It is contended that respondent Nos. 1 to 4 clearly admit that petitioner is in occupation and possession of the premises. It 5 is stated that inspite of the order passed by the trial court, respondent Nos. 2 to 5, their servants, agents and their hirelings restrained the petitioner’s father, his workers and representatives so also the petitioner from entering the suit premises. The petitioner pointed out the order passed and tried to serve the copy of the same on representative of respondent Nos. 1 to 4. However, representatives of respondents informed that unless he speaks to the respondent Nos. 1 to 4 he will not accept service of the order. Representative of respondent Nos. 1 to 4 spoke to respondent No.2 who informed his representative not to allow the petitioner’s father and workers so also the representatives to enter the premises. 7] Thus, all through out the case is that it is not the petitioner who entered the premises but his father, workers and representatives. Further, it is not the case that respondent Nos. 1 to 4 obstructed or prevented the entry but it is their representative who allegedly obstructed and prevented the entry therein. 6 8] If in this light the order of trial court is perused, the trial court has proceeded on the basis that the rival cases denote that the defendants are claiming to be in possession of the suit premises firstly on the ground that plaintiff – petitioner has abondoned the same, secondly that the plaintiff has removed his machinery and thirdly that they are having keys of the suit premises being owner thereof. The interim application has been decided on the basis of the correspondence and other documents and the trial court has in terms held that it is not proved that plaintiff – petitioner has not removed all his furniture, machinery from the suit premises and, therefore, they are lying in the same. The trial court has in the interim order itself observed that it can be inferred from the pleading of the defendant that the petitioner – plaintiff might have abandoned the premises for want of electric supply to run the factory. However, it cannot be said that they have handed over possession. It may be that respondent defendants being owners were having keys of the premises which were with them. This was as owners of the suit premises and not as possessors. In the order itself, the Court has held that the defendant is having the keys in his capacity as owner of the premises and, therefore, 7 the possession thereof is also with the defendant on account of their retaining keys. In such circumstances all that the trial court has directed is that the keys of the premises having not been handed over and physical possession may not have been transferred, therefore, the defendants who are respondents, their servants, agents and representatives or any one claiming through them so also security guards are restrained by an order and temporary injunction from disturbing the possession of petitioner and preventing petitioner’s workers from entering the premises pending hearing of the matter. The tenor of the trial court’s order is on the basis that some works were going on and for that purpose representative of either parties were in the premises. 9] It is in such circumstances that it was necessary for the petitioner to allege in specific terms as to who obstructed entry into the premises and whether each of the respondents who are defendants to the suit have committed such acts. Further, the portions that are stated to be in his possession and claimed as forming part of the suit premises are not specifically referred to in the contempt petition. As far as obstruction 8 and other acts are concerned, I have referred to that part of the pleadings only to highlight that the leave and licence basis which is the term used in the defendant’s correspondence refers to only 3000 sft of area. The petitioner on the other hand refers to 10000 sft total area and divided into several postions including open area. In such circumstances, it is difficult to conclude that the petitioner has brought home the charge of civil contempt. Further, by relying upon the contents of the letter of the defendants, the petitioner cannot allege civil contempt. Once the nature of the controversy is seen together with the denials in para 10 of the affidavit in reply, then, I am of the opinion that the petitioner has failed to demonstrate that the trial court’s interim order has been wilfully and deliberately violated by the respondents. The petition does not set out and in fact does not allege that it was the respondents who prevented or obstructed the entry. Further, it is not the petitioner who entered the premises but his father and representative. In such circumstances and contempt jurisdiction being not ordinary and usual proceedings, it would not be proper to entertain this petition. Contempt petition is, therefore, dismissed. No costs. 9 10] These observations are made only for the purpose of disposal of this contempt petition and shall not preclude the petitioner from asserting his case in distinct proceedings either pending in this Court or in the trial court so also from proving his case of tenancy. Needless to further state that in case any further proceedings are initiated by the petitioner, these observations would not prevent the petitioner from raising appropriate pleas and asserting his rights in the property. (S.C.DHARMADHIKARI, J)