acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CONTEMPT PETITION NO. 327 OF 2008 Shri Pandurang Appa Koli & Ors. ... Petitioners. Vs. The Most. Rev. Joel V. Mal & Ors. … Respondents. ­­­ Mr. A.M. Kulkarni, for the Petitioners. Mr. R.V. Govilkar, for Respondent Nos.2 to 4. ..... CORAM: S.C.DHARMADHIKARI,J. DATE : 28 th APRIL, 2010. P.C. 1. By an Order passed on this Contempt Petition on 4.12.2009, the Court recorded that Petitioner Nos.2 and 4 have cancelled the Power of Attorney executed in favour of power of attorney holder Dayadhan Lahu Sonawane. It is this Power of Attorney holder who has presented this Contempt Petition and from the verification clause it is apparent that he states that whatever is set out in paragraphs 1 to 22 of the Contempt Petition is based on the facts and legal submissions and last paragraph 23 is humble prayer. Once he verified the Contempt Petition on behalf of the Petitioners but his Power of Attorney has been cancelled by the Petitioners Nos.2 and 4 that Court permitted deletion of the said Petitioners. 1 2. Accordingly Petitioner Nos.2 and 4 have been deleted as Petitioners from this Contempt Petition. 3. The Contempt Petition was then placed before the Court on 8.1.2010 but the amendment was not carried out and therefore it was adjourned to 22.1.2010. Subsequently, what the Petitioners’ Advocate has done is to go ahead and delete Respondent Nos.2 and 4 in stead of the Petitioners, therefore, the Contempt Petition was liable to be dismissed. Yet, I have proceeded to hear Shri Kulkarni appearing on behalf of the Petitioner Nos.1,3 and 5. 4. The preliminary objection has been raised by Shri Govilkar appearing on behalf of Respondent Nos.2 to 4. Shri Govilkar submits that the Contempt Petition cannot be prosecuted by the Petitioners any longer. He submits that even the Petitioners’ whose names are not deleted viz. Petitioner Nos.1,3 and 5 have thereafter issued public notice cancelling the Power of Attorney in favour of Power of the Attorney holder Dayadhan Lahu Sonawane. He produces copies of public notices. The public notices prima facie demonstrate that the Power of Attorney have been cancelled because the Petitioner Nos.1,3 and 5 have put an end to their dispute with the Respondents to this Contempt Petition. Shri Govilkar submits that the Power of Attorney holder could not have proceeded with this Contempt Petition after revocation of the power of attorney. 2 5. Shri Kulkarni appearing on behalf of the Petitioners submits that the revocation and the cancellation of the Power of Attorney would not be of any consequence because the willful disobedience of the Order of this Court has been brought to the notice of this Court and Court must therefore take appropriate action. The Contempt Petition still survives and should not be dismissed is his submission. 6. Ordinarily in law the Petitioner’s duty in such matters ends when he brings to the notice of this Court the willful disobedience of the Court’s Order. Once he presented such Contempt Petition alleging civil contempt, it is for the Court to decide the matter. However, once this Court Petition for civil contempt is presented by the Petitioners who style themselves as Applicant/Original Plaintiff and it is brought to the notice of this Court that the Petition is presented and verified by a Power of Attorney holder but the Power of Attorney has been cancelled, then, in such peculiar circumstances and when the Applicants in this case are concerned with receipt of moneys from the Trust on sale of the Trust property, then their conduct and act attributed to them cannot be ignored and brushed aside. Mr. Kulkarni disputes that the authority of the Power of Attorney holder had been cancelled by the public notice brought to the Court’s notice. However, he does not dispute that what was originally filed before this Court was a Second Appeal by the original Defendants­Respondents to this 3 Contempt Petition. During the pendency of the Second Appeal and when it was placed for admission the consent terms were filed, copy of which is at Exh. “B” to the Petition. The consent terms record the agreement and understanding between the parties namely that original Plaintiff Respondents to the Second Appeal and Applicants in this Contempt Petition agreed that the Trust is the owner of the property and they have no objection to any sale or alienation of the Trust property wholly or partly in favour of any person or persons of the choice of the Trust and Trustees. The second stipulation was they agreed not to raise any objection of whatsoever nature to any application that would be made by the Trust either to the Charity Commissioner or to any other Authority seeking permission for sale or alienation of the Trust property either wholly or in part. 7. What they were to be paid are the sale proceeds as stipulated in clauses 2(iii) and (v). In the consent terms itself it is admitted that a sum of Rs.7,00,000/­ was received by Shri Pandurang Appa Koli who is none other than Applicant No.1 to the Contempt Petition. The balance was to be paid within 15 days of receipt of sale proceeds/consideration. Though the consent terms stipulate that sale consideration was pursuant to a sale of the Trust property and such sale would be with the permission of the Charity Commissioner, yet, essentially what was agreed between the parties was that the Respondents to the Appeal give up their claim to the property, they acknowledged and admit that the property belong to the Trust which is 4 public charitable Trust and that they have no objection if the Trust sells the property in favour of person or persons of their choice. 8. The Petitioners­Applicants were essentially aggrieved by the fact that they have not received the consideration agreed and therefore, applied for modification of the consent terms by filing Civil Application bearing No.419 of 2006. By detailed Order made on that Civil Application, this Court on 16.8.2006 recorded that both sides are seeking modification of the Order/decree. Essentially the consent terms after being taken on record is a Decree of this Court and which substitutes that of the Court below. 9. It appears that thereafter the Civil Application for modification was placed before the learned Single Judge of this Court who took note of the grievance of the Petitioners­Applicants and directed that the Charity Commissioner shall be approached by issuing the public advertisement and right from initial step of issuing public advertisement till ultimate sanction to the sale be granted within a time schedule. 10. It is stated that this Order was passed in the presence of the parties on 4.9.2007. What has been done by this Court is taking on record Consent Minutes of Order. The grievance of the Applicants is that no public notice was issued, no application was made seeking sanction of the Charity Commissioner and therefore, Order of this Court has been violated. All that the Power of Attorney states on oath is that he brought to the notice of the 5 Trust and Trustees this Court’s Order but they did not take any steps. 11. The Power of Attorney holder who has presented and verified this Petition represents the Applicants original Plaintiffs. Therefore, their conduct is very relevant aspect in this matter. They have given up their title to the suit property. They have no objection to the disposal of the Trust property by the Trustees in any manner and to any person. They are the recipients of the amounts which has been mentioned in the affidavits filed by the Trustees to this Contempt Petition. They have appropriated those sum and to themselves. They have no grievance subsisting with regard to non compliance of the Court’s Order. It is in such circumstances, they go ahead and cancelled the Power of Attorney. In such circumstances, the Contempt Petition appears to be prosecuted by the Power of Attorney holder without any authority from the Applicants original­Plaintiffs. They have no subsisting grievance and are satisfied with the amounts that they have received. They do not wish to make any complaint about the disposal of the Trust property without prior sanction or permission, they are concerned with their moneys and those have been paid to them and duly received by them. 12. In such circumstances, argument of Shri Kulkarni that the Trustees and Trust have willfully disobeyed the Order of this Court by not issuing public advertisement and not approaching the Charity Commissioner is without any merit. This argument is not coming from the 6 Applicants anymore. They cannot be heard to say this after they have cancelled the Power of Attorney and have not approached the Court with their independent grievance, if subsisting despite they being paid the moneys that are referred to and set out in the affidavits of the Respondents. There is no denial of the statements on oath. Some of the Petitiones have cancelled the Power of Attorney. All of them have received the monies from the Trust. The Power of Attorney is not independently concerned with the matter as this was a Private Litigation. Once the Contempt Petition is not being proceeded by the Applicants and they have not come forward to make any complaint nor bring to the notice of this Court willful disobedience of the Order of the Court, then, in my view no useful purpose will be served by proceeding with the Contempt action. The Contempt Petition is therefore not maintainable and preliminary objection of Shri Govilkar is upheld. The Contempt Petition is dismissed accordingly. (S. C. DHARMADHIKARI, J.) 7