1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CONTEMPT PETITION NO.275 OF 2007 Shabbir Patel .. Petitioner Versus Sky Anchorage Coop.Hsg. Society Ltd. And Ors. .. Respondents Mr.F.E.D’Vetri, Senior Advocate with Mr.S.V.Doijode K.G.Mhatre i/b. Doijode Associates for petitioner and for respondent in CP 354 of 2007. Mr.Sharan Jagtiani with Vijay Dhingreja and Mr.Yogendra Kanchan i/b. M/s.Kumana and Co. for respondents and for petitioners in CP 354 of 2007. CORAM : S.C.DHARMADHIKARI, J. DATE : 21st April 2010. P.C.: 1] This contempt petition is filed by the original defendant in Suit No. 4028 of 1999. 2] It is common ground that the respondents had filed the said suit in the City Civil Court, Mumbai for a permanent injunction restraining the 2 petitioner and/or his agents or servants, employees etc. from in any manner obstructing and/or interfering and/or preventing the management, possession, administration and control of the club house and swimming pool situate at Plot No.CTS 1200/7/1 to 7 and Plot Nos. 1200/2 to 5 in any manner. 3] It is further common ground that this suit was decided by the learned Judge, City Civil Court and by his judgement and decree dated 20th November 2006 he decreed the suit and granted a permanent injunction restraining the petitioner – defendant from preventing the plaintiff in managing, controlling and administering the club house and swimming pool. The permanent injunction is also in other terms which are more particularly mentioned in the decree. 4] The petitioner defendant applied for stay of the execution of the decree and on that application an order came to be made on 21st November 2006 which reads thus:- 3 “As per admitted facts the plaintiffs and members of A and B wing are entitled to have the common amenities viz., swimming pool and club house. Admittedly defendant No.1 had given management, control and administration of the club house and swimming pool to the plaintiffs in April 1999 and he has forcibly locked one room from club house referred to as Cafeteria in July 1999. After hearing the parties on merits, I have decreed the suit and granted perpetual injunction and mandatory injunction for removal of the lock. The members of the plaintiffs who have paid huge amount for getting the flats along with the amenities of swimming pool and club house are deprived of these facilities since 1999. Defendant No.1 is not going to suffer if the plaintiffs continue to have management, control and administration of the swimming pool and club house subject to the conditions imposed on them. By keeping the premises locked or by depriving the use of swimming pool and club house to the plaintiffs, no purpose would be 4 served. This is not a ffit case for grant of stay as the defendant is not going to suffer by not staying the decree. In case he succeeds he can get back the possession of the room. In the circumstances, it is made clear that possession of the room shall not be given to the plaintiffs unless the plaintiffs undertake to return the possession to the defendants immediately in case of reversal of the decree subject to the orders of the superior court. With this observation the application is rejected.” 5] The allegations in the contempt petition are that despite such a decree being granted and the condition imposed therein, the original plaintiffs – respondents to this petition filed appeal in this court, which is pending. However, after the application of stay was decided by the aforementioned order, taking advantage of the decree, the respondent broke open the locks of a room so also window shutters with intention to take forcible possession of the room. Petitioner’s security guards tried to stop respondent Nos. 2, 3 and 5 from doing so but he was over powered. 5 Petitioner has stated in para 23 of this petition that the security guards posted at Cafeteria requested these respondents to produce copy of the order allowing them to break open the lock but they were unable to produce any such order. Despite resistance put up by the security guards, these respondents broke open the locks forcibly and replaced them with their own locks. This is contrary and in blatant disregard to the orders dated 15th June 2004, 20th November 2006 and 21st November 2006. 6] Mr.D’Vetri, learned Senior Counsel appearing in support of this petition contended that earlier an attempt was made to amend the plaint and include another room/ second room within the purview thereof. However, the order passed on the chamber summons taken out in that behalf clearly prohibits the plaintiffs – respondents from including the said room. Therefore, the second room of the Cafeteria was excluded from the suit. The respondents had no right of any nature to enter or interfere with the exclusive possession of the petitioners in respect of second room. They could not have forcibly taken possession of the said room. They were required to comply with the conditions and then take 6 advantage and benefit of the decree, yet, these acts were committed. The complaints before the police and the result of the same are already set out and in the submission of Mr.D’Vetri, the annexures to the contempt petition, including the letters would go to show that the respondents do not dispute that the aforementioned acts were committed by them. On the other hand, they justified the acts by urging that the necessary undertaking has been executed in terms of the City Civil Court’s order and only thereafter, they have opened two rooms termed as Cafeteria. They have very clearly stated that there is no question of any steps being taken to execute the decree because it was permissible for them to enter two rooms termed as Cafeteria pursuant to the clear finding and observations in the City Civil Court’s order of November 2006. Therefore, Mr.D’Vetri submits that they have blatantly denied that any breach of the orders have been committed. Their action is not at all illegal. If this stand is taken not only during correspondence but reiterated on oath before this Court, then, this is a case of breach of the order of a subordinate court and, therefore, this court is empowered to take action in terms of section 10 of the Contempt of Court’s Act, 1971. 7 Mr.D’Vetri, therefore, submits that a case of civil contempt being made out, this Court should take appropriate action against the respondents. 7] On the other hand, the Secretary of the first respondent society has filed an affidavit and Mr.Jagtiani appearing on behalf of respondents invites my attention to the detailed affidavit in reply filed by the society. He submits that the society has pointed out on oath before this Court that the order passed by the City Civil Court has not been violated as is falsely alleged. It is stated that the City Civil Court in its order has recorded a finding of fact that possession of the club house, including two rooms termed as cafeteria form part of the club house, was given to respondents on 8th April 1999. The respondents have kept their sports articles inside the premises. The original defendant has merely locked the rook from outside without removing the articles from the room. The City Civil Court has recorded a finding that this was not case of dispossession but prevention of use and occupation. In such circumstances, possession of both rooms termed as cafeteria has always been with the respondents and, therefore, there is no question of they 8 having committed any breach of the judgement and decree dated 20th November 2006 passed by the City Civil Court. My attention is invited to the fact that Suit No.4028 of 1999 was not a suit for possession but a suit against the petitioner - defendant for perpetual injunction restraining him from preventing the respondents from managing, controlling and having possession of the club house and swimming pool. Once the City Civil Court has given clear finding that possession of both the rooms termed as Cafeteria was with the respondent – original plaintiffs, then, the question of they filing any application for execution or committing any contempt of court’s order does not arise. My attention is also invited by Mr.Jagtiani to the detailed affidavit in reply, the judgement and decree of the trial court and he has submitted that this contempt petition is totally misconceived and deserves to be dismissed. 8] With the assistance of the learned Counsel appearing for parties, I have perused the contempt petition and all annexures thereto, including the orders of City Civil Court. To my mind, this Court is empowered to take note of contempt of the subordinate court’s order in the same 9 manner as if a contempt is committed of any order and direction of this Court. This is a power conferred upon the court with a avowed object. The object and purpose is to ensure that the High Court can take cognisance of contempt of courts subordinate to it and exercise the same powers, jurisdiction and authority in respect of contempt of itself. In the instant case, there is no doubt that City Civil Court is subordinate to this Court. Therefore, the contempt petition could have been filed. Ordinarily and normally one finds that an application of the present nature is made to the subordinate court and the subordinate court, after hearing parties submits its report to this Court for taking appropriate action in accordance with law. In the instant case, directly a petition has been filed and possibly this Court has allowed parties to file affidavits and proceed with the matter because both parties have filed petitions alleging contempt of the same order. 9] Therefore, assuming that it was open for them to adopt such a procedure and there was no necessity of parties approaching the subordinate court and the said court forwarding its report, yet, I find that 10 the petitioner is unable to make out a case of civil contempt. This is a case where both sides have placed their interpretation on the order and decree of the trial court. The petitioner complains that decree is passed in favour of the respondents but the same is conditional and is confined to one room. On the other hand, respondents urge that the decree speaks of club house which includes and denotes the cafeteria. Therefore, all portions/ rooms which are utilised as a club house can be said to be covered by the decree. Reliance upon the decree itself is placed. It is clear from a perusal thereof that it speaks of club house and swimming pool. The same speaks of obstruction or interference with use, occupation and possession. Therefore, it prevents the defendants from restraining the plaintiffs from managing, controlling and administering the club house and obstructing and interfering with their use and occupation. When the application for stay of the decree was made, the court below has passed an order recording that the petitioner – defendant No.1 had given management, control and administration of the club house and swimming pool to the respondent plaintiff in April 1999 and he has forcibly locked one room referred to as cafeteria in July 1999. 11 The Court referred to the decree of perpetual injunction and putting up of lock. It records that even if the defendant – petitioner before me has applied for stay of the decree, he would not suffer because the respondent – plaintiff continue to have management, control and administration of the swimming pool and club house. 10] As to what constitutes a club house has been a part of some debate before me. Mr.D’Vetri would submit that only one room on the ground floor is a club house and the respondents could not have taken possession of the room on the first floor. On the other hand, the respondents submit that the sanctioned plan of the club house and swimming pool would clarify that two rooms termed as cafeteria with an internal staircase, form part and parcel of the club house building. The two rooms are termed as cafeteria and this fact is confirmed by letter dated 31st July 1999 written by the Municipal Corporation of Mumbai. A copy of the said letter has been annexed and a reference to all this has been made in para 7 of the affidavit in reply. To my mind, the contempt jurisdiction cannot be invoked in this case so as to clarify as to what constitutes club 12 house and whether it comprises of single or two rooms. There cannot be any adjudication as to the nature of the decree nor can this court go into the fact as to whether the decree permits use of the rooms conditionally or otherwise and whether the conditions have been breached, if at all, by the respondents. In such circumstances, when parties have remedies available to them in law to seek clarification with regard to the nature of the decree, the extent of the premises mentioned therein, then, the contempt jurisdiction need not be invoked. All the more, when the petitioners have failed to point out from the decree and judgement clearly that the respondents were not permitted use of the room which is being referred to during the course of arguments. For these reasons, the contempt petition No.275 of 2007 fails and the same is dismissed. No costs. (S.C.Dharmadhikari, J) 13 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CONTEMPT PETITION NO.354 OF 2007 Sky Anchorage Coop.Housing Society Ltd. And Ors. .. Petitioners Versus Shabbir N. Patel and Anr. .. Respondents Mr.F.E.D’Vetri, Senior Advocate with Mr.S.V.Doijode K.G.Mhatre i/b. Doijode Associates for petitioner and for respondent in CP 354 of 2007. Mr.Sharan Jagtiani with Vijay Dhingreja and Mr.Yogendra Kanchan i/b. M/s.Kumana and Co. for respondents and for petitioners in CP 354 of 2007. CORAM : S.C.DHARMADHIKARI, J. DATE : 21st April 2010. P.C.: 1] This contempt petition is filed by the Petitioners – original plaintiffs alleging that the respondent – original defendant has violated the judgement and decree passed by the City Civil Court willfully and deliberately. The same incident has been cited wherein the respondent – defendant allegedly came to the site with unknown persons and moved around the club house in a threatening manner and sabotaging the water 14 in the swimming pool. He has also allegedly put one watchman and it is contended that these acts more particularly set out in the petition would constitute breach and violation of the judgement and decree of the City Civil Court. 2] Having perused this petition as well together with affidavit in reply, I am of the opinion that if the respondents – plaintiffs are in any manner aggrieved and agitated by the acts set out, then, it would be open for them to approach such authorities including the nearest police station and lodge appropriate complaint/ proceedings. Surely, this court cannot merely on the basis of some allegations and isolated acts alleged in the contempt petition take any cognisance of the grievances of the petitioners. More so, when the respondent has raised issue with regard to the import of the order passed by the City Civil Court. For this reason, even this contempt petition which is a counter blast to the Contempt Petition No.275 of 2007 must fail and it is also dismissed. (S.C.DHARMADHIKARI, J)