1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CONTEMPT APPEAL NO. 2 OF 2009 IN CONTEMPT PETITIONNO. 255 OF 2008 IN WRIT PETITION NO. 8235 OF 2007 Mrs. VEERA DARAYUS MUNDROINA .. APPELLANT Vs. MRS. FRENY K. SIRWALLA .. RESPONDENT Mrs. S. V. Bharucha for the appellant Mr. C. N. Chawan for respondent CORAM: SMT. RANJANA DESAI & SMT. MRIDULA BHATKAR, JJ. DATED : 8/2/2010 ORAL JUDGMENT: (Per Smt. Ranjana Desai, J). Admit. Respondent waives service. By consent of the parties taken up for final hearing forthwith. 2 2. In this contempt appeal the appellant Mrs. Veera Mundroina has challenged order dated 18/11/09 passed in Contempt Petition No. 255 of 2008 filed by the respondent in Writ Petition No. 8235 of 2007. It is necessary to begin with the facts of the case. 3. The respondent filed an eviction suit against one Ms. Dhun Doctor and Maneck Doctor, sister and brother respectively, in the Small Causes Court, Bombay on the ground of bonafide requirement being R.A.E. & R Suit No. 3388 of 1985. The suit was partially decreed by the Small Causes Court, Bombay. By a judgment and decree dated 8/8/03 the tenants Ms. Dhun Doctor and Maneck Doctor were directed to hand over possession of one hall and bed room to the petitioner. The decree was not passed in respect of the remaining portion of the premises namely kitchen, bathroom and W.C. 4. The trial court decree was accepted by the tenant Maneck Doctor. However, it was challenged by Ms. Dhun Doctor by filing an appeal being Appeal No. 773 of 2003 before the Division Bench of the Small Causes Court. The said appeal was dismissed on 21/9/07. Later on a writ petition was filed by Ms. Dhun Doctor being Writ Petition No.8235 of 2007. That was also dismissed by learned Single Judge of this court by order dated 14/12/07. At the request of the appellant Ms. Dhun Doctor time to vacate the suit premises was granted to her till 31/8/08 on filing usual undertaking on or before 29/12/2007. 3 5. The case of the respondent in Contempt Petition No. 25 of 2008 is that when the writ petition was being heard the appellant was present and was giving instructions to the counsel appearing for Ms. Dhun Doctor, the original tenant. According to the respondent when the counsel for Ms. Dhun Doctor informed this court that Ms. Dhun Doctor was hospitalized, this court observed that the undertaking can be filed by anybody. Ms. Dhun Doctor died on 23/10/07 without filing any undertaking. No undertaking was filed as directed by this court on behalf of Ms. Dhun Doctor. Possession of the premises was not handed over as directed. 6. After the petition was dismissed by learned Single Judge on 14/12/07, the appellant who is the daughter of Maneck Doctor, the defendant in R.A.E. Suit No. 3388 of 1985, who had suffered the decree passed in the said suit and against whom the decree has assumed finality, filed R.A.D. Suit No. 228 of 2008 in the Small Causes Court, Mumbai, for a declaration that she is a tenant of the suit premises. The said suit is pending, but no injunction is granted. According to the respondent the appellant addressed a letter dated 5/2/08 to the Registrar, Small Causes Court, Mumbai requesting that the decree should not be allowed to be executed. The case of the respondent is that the appellant has been staying at Minerva Mansion, Eruecha, Hakim Road and at Jame Jamshed Blocks, Parsi Colony, Mumbai. The respondent sent notice to her at the above addresses calling upon her to hand over possession of the suit premises and 4 warning her that contempt proceedings would be initiated against her, if she does not hand over suit premises. The notices were received back unserved. According to the respondent the appellant has locked the suit premises. Since the possession of the suit premises was not handed over as ordered in the contempt petition, the respondent prayed for issuance of show cause notice to the appellant under the Contempt of Courts Act and also for appointment of Court Commissioner to find out the present position of the suit premises. 7. Certain other pertinent facts need to be stated. The respondent filed execution proceedings for execution of decree in R.A.E. & R. Suit No. 3388 of 1985, being Execution Application No. 279 of 2008 in the Small Causes Court, Bombay. The execution proceedings were obstructed by the appellant. The executing court allowed the execution of the decree against the appellant by order dated 12/8/09. The appellant carried an appeal from the said order which was dismissed. The appellant at the time of obstructing the execution proceedings claimed tenancy rights over the suit property through her grand parents. Both the lower courts found that the appellant could not prove her alleged tenancy rights. The appellant filed writ petition being Writ Petition No. 10129 of 2009 challenging the said order. The said writ petition has been dismissed by learned Single Judge of this court on 8/12/09. While dismissing the writ petition with a reasoned order, learned Single Judge gave two months’ time to the appellant to vacate the suit premises. The said period expires today. 5 8. By the impugned order learned Single Judge appointed Court Receiver, High Court, Bombay, in respect of the premises namely two rooms excluding kitchen, W.C. and bath room on the ground floor of the Kavarana building, Dadar Cross Road, Mumbai 400 014. He made his order subject to the order of this court that may be passed in proceedings filed by the appellant challenging order passed by the Small Causes Court in execution proceedings filed by the respondent. The said order is challenged in the instant contempt appeal. 9. We have heard learned counsel for the appellant Mrs. Bharucha at some length. Two basic submissions are advanced by learned counsel for the appellant. She submitted that learned Single Judge was dealing with a contempt petition and, therefore, he could not have appointed Court Receiver. Learned counsel relied on judgment of the Supreme Court in Prithwi Nath Ram v. State of Jharkhand & Ors, AIR 2004 SC 4277. Learned counsel further submitted that the appellant was not a party to any of the proceedings in the trial court. She submitted that contempt proceedings cannot be initiated against third party. In this connection she relied on Maharaja Pratap Udai Nath Shahi Deo v. Sara Lal Durga Prasad Nath Shahi Deo and Ors., AIR (36) 1949 Patna 39. 10. We have also heard learned counsel for the respondent who has submitted that this is nothing but an attempt to frustrate the orders passed by 6 various courts directing the appellant to hand over possession of the premises to the respondent. Learned counsel submitted that the appellant’s father had suffered the eviction decree of the Small Causes Court. He did not file any appeal. The appellant’s aunt challenged the decree. But she failed in her attempt. Writ petition filed by her in this court was also dismissed. Learned counsel submitted that to frustrate the decree the appellant obstructed the execution proceedings and filed a declaratory suit. In the suit no injunction is granted. He submitted that the challenge to the execution proceedings has failed upto this court. Learned counsel submitted that attempt to frustrate the orders of this court must be repelled by this court. In support of his submissions, learned counsel relied on judgment of the Supreme Court in Firm Ganpat Ram Rajkumar v. Kalu Ram & Ors., 1990 (1) All India Rent Control Journal, 101. 11. The admitted facts are that the appellant’s father suffered a decree which he did not challenge. He accepted it. The appellant’s aunt challenged the decree, however, she failed in her challenge upto this court. In execution proceedings initiated by the respondent the appellant obstructed. She failed upto this court. A declaratory suit is stated to be pending. No interim order is passed in favour of the appellant in that suit. 12. The basic contention raised in the petition needs to be dealt with first. 7 We shall first refer to Prithawi Nath Ram’s case as that judgment is heavily relied upon by learned counsel for the appellant to contend that learned Single Judge could not have passed the impugned order as it goes beyond the scope of contempt petition. In Prithawi Nath Ram’s case learned Single Judge of the High Court while dealing with the application for initiation of contempt proceedings had passed a judgment holding that it would not be proper to take any action for contempt. Learned Single Judge had proceeded to examine the correctness of the order and called upon the parties to satisfy him that the direction of the kind contained in the order dated 30/3/1999 could be issued. After analysis of the arguments advanced before him he came to a conclusion that the direction contained in order dated 30/3/99 could not have been given and, therefore, there was no scope for taking any action for contempt. It was contended before the Supreme Court that learned Single Judge had not kept the correct parameters of law in view while dealing with the application for contempt. In essence he has sat in judgment over the decision rendered by another learned Single Judge. It was contended that it was not open in the contempt proceedings to examine whether the order, of which implementation is sought, was valid or not. That is beyond the scope of consideration. This contention was accepted by the Supreme Court. The Supreme Court observed that if any party concerned is aggrieved by the order which in its opinion is wrong or against rules or its implementation is neither practicable nor feasible, it should always either approach the Court that passed the order or invoke 8 jurisdiction of the appellate court. Rightness or wrongness of the order cannot be urged in contempt proceedings. The Supreme Court further observed that right or wrong the order has to be obeyed. Flouting an order of the court would render the party liable for contempt. The Supreme Court observed that while dealing with an application for contempt the court cannot traverse beyond the order, non-compliance of which is alleged. 13. There can be no dispute about this proposition of law. However, in our opinion, this judgment is not at all applicable to the present case. It cannot by any stretch of imagination be said that learned Single Judge has in this case considered whether the order of which contempt is alleged is correct or not. Undoubtedly rightness or wrongness of that order can only be challenged by way of any procedure provided in law in a superior court. Learned Single Judge has not commented anywhere on the legality or otherwise of that order. By appointing Court Receiver learned Single Judge has only ensured that subject matter of the order of which contempt was alleged is protected so that it can be implemented. It is merely an interim order. In our opinion there is nothing wrong in the circumstances of a case in a court dealing with contempt proceedings passing appropriate interim orders to ensure that no difficulty is created in implementing the order. That cannot amount to commenting on the legality of that order. In this case learned Single Judge had to do so because there was a possibility of the appellant challenging the orders passed against 9 her by the Small Causes Court in execution proceedings. It is also pertinent to note that instead of hastily disposing of the petition learned Single Judge has made his order subject to the order that may be passed by the court which would be seized of the appeal or any other proceedings filed by the appellant challenging the order of the Division Bench of the Small Causes Court in the execution proceedings initiated by the respondent. Learned Single Judge stayed his order upto 7/12/2009. Thereafter another learned Single Judge of this court considered the challenge raised to the order passed in execution proceedings and dismissed the said challenge. He, however, granted two months’ time to the appellant to vacate the premises. Two months period has expired today and the possession is still not handed over. It is pertinent to note that both the learned Single Judges have given sufficient time to the appellant to vacate the suit premises. 14. We may refer to the judgment of the Supreme Court in Firm Ganpat Ram Rajkumar’s case. In that case eviction order was confirmed by the Supreme Court after granting six months’ time. The order was passed directing the appellant to file usual undertaking. However, the undertaking was not filed and possession was not given. All this was done by the other partners who were the sons and grandsons of the erstwhile prisoners. The Supreme Court observed as under: 10 “In our opinion the order must be implemented and cannot be allowed to be defeated by dubious method adopted by the partners of the said firm of Ganpat Ram Rajkumar. The whole conduct betrays a calculated attempt to defeat the order of this court and to mislead this court. If that is the position, in our opinion, parties cannot be allowed to do so and get away by misleading this court. This application was made for contempt. It may or may not be appropriate to pass any order punishing the wrongdoers. But there is no doubt that the order of this court dated 24/8/87 is being sought to be defeated and frustrated. Sons and grandsons of the partners or erstwhile partners of the firm cannot be allowed to frustrate the order of this court. Though perhaps the respondents could not be found guilty of violating any undertaking as there was none, in the facts and circumstances of the case, this court should ensure compliance with its order dated 24/8/1987 and see that vacant and peaceful possession is given to the applicant in the interest of justice.” 15. In our considered opinion the present case is clearly covered by this case. It provides answer to the argument of learned counsel for the appellant that the appellant was not party to the proceedings and she was not directed to give any 11 undertaking and as such no contempt proceedings can be initiated against her. Even then as stated by the Supreme Court, if we see that there is an attempt to frustrate the order by any relative of the person against whom the decree was passed, this court would be within its jurisdiction to pass appropriate orders to ensure that order of the court is not frustrated. 16. At the cost of repetition, we must state that the appellant’s father suffered eviction decree. He did not challenge it. The appellant cannot feign ignorance of the order passed against her father. The appellant’s aunt failed miserably in challenging the order. The appellant cannot feign ignorance of this fact. The appellant attempted to frustrate execution proceedings. She failed. Such attempts to frustrate decrees cannot be tolerated by any court of law. 17. Reliance was placed on Maharaja Pratap Udai Nath Shahi Deo’s case where a special Bench of the Patna High Court has held as under: “Equity act in personam and an injunction is a personal matter. The ordinary rule is that it can only be disobeyed in contempt by persons named in the writ. Persons who were not defendants in the suit in which injunction was granted not were named in the decree cannot be proceeded against in contempt for disobeying the injunction, even if such persons claim through the person against whom the injunction was 12 granted. In such a case, when there is no principal offender, the defendant against who the decree was passed having died, there can be no question of aiding and abetting and principles of Avery v. Andrews (1882) 51 L.J. Ch. 414 and Seaward v. Paterson (1897) 1 Ch. 545 have no application : (1882) 51 L.J. Ch. 414 and (1897) 1 Ch. 545, Disting; AIR (25) 1938 P.C. 295.” 18. It is pertinent to note that the Special Bench of the Patna High Court has observed that ordinary rule is that an order can only be disobeyed in contempt by persons named in the writ. The word ‘ordinary rule’ is significant but there can be extraordinary cases where disrespect to the orders of the court is apparent. Present case is one of such cases. Besides all that learned Single Judge has done is to take steps in aid of the order of which contempt was alleged. By the impugned interim order the possession was directed to be handed over to the Court Receiver so that no third party interest is created. Besides the order was subject to the order which was to be passed by the judge seized of the challenge to the execution proceedings. The ratio of Pratap Udai Nath’s case is not at all attracted to this case. Morever as we have already noted, learned Single Judge has dismissed the petition filed by the appellant challenging the orders passed against her by giving her two months’ 13 time to vacate which is to expire today. Today the appellant is present in the court. We asked her whether she is prepared to hand over the possession. She informed us through her lawyer that she is not prepared to hand over the possession. 19. For the reasons which, we have elaborated hereinabove, we are of the opinion that there is no substance in the appeal. The appeal is dismissed. 20. At this stage stay of this order is sought. The prayer is rejected. (Smt. Ranjana Desai, J.) (Smt. Mridula Bhatkar, J.) 14