C.P. No.93/2008 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CONTEMPT PETITION NO.93 OF 2008 IN SECOND APPEAL NO.339 OF 2001 1. Syed Shah Hussain Nehri s/o Syed Ahmed Nehri, Age 65 years, Occ. Service, R/o At present Beed, through G.P.A. Shaikh Rasool s/o Shaikh Vazir, Age 32 years, Occ. Business, R/o Bhadkal Gate, Aurangabad 2. Syed Shah Mohammad Duravesh Nehri s/o Syed Ahmed Nehri, Age 60 years, Occ. Service, R/o Aurangabad ... PETITIONERS. VERSUS Subhash Ramlal Jaiswal, Age 60 years, Occ. Business, R/o Juna Bazar, Aurangabad ... RESPONDENTS ..... Shri A.D. Kasliwal, Advocate for the petitioners Mrs. A.S. Rasal, Advocate for the respondent ... CORAM : S.S. SHINDE, J. Dated: 11 th August, 2011 ORAL JUDGMENT : 1. This contempt petition alleges that there is non adherence to the undertaking filed by the respondent on C.P. No.93/2008 2 30.8.2004 before this Court in Second Appeal No.339/2001. In Second Appeal, the respondent herein sought three months time to approach the Hon’ble Supreme Court for challenging the order passed in the Second Appeal. This Court granted three months time to the respondent subject to filing of an undertaking by the respondent herein who was appellant in the Second Appeal, that he shall vacate the property in accordance with the decree passed by the trial Court within three months from the date of passing of the order in Second Appeal. Such affidavit/ undertaking was to be filed within two weeks from 19.8.2004. It was also indicated in para 19 of the order in Second Appeal that the appellant has to make his statement in said undertaking that he shall not create any third party interest in the suit property and/or alienate the suit property during the protection period of three months. 2. Brief facts as narrated in the Contempt Petition are as under : The petitioners herein filed Regular Civil Suit No. 252/1982 against the respondent herein for mandatory injunction, thereby directing the respondent to restore possession of the suit property bearing C.T.S. No.3115, situated at Juna Bazar, Aurangabad, admeasuring about 16 x 30 ft. i.e. 16 ft. towards C.P. No.93/2008 3 east-west and 30 ft. towards north-south and also for perpetual injunction restraining the respondent from committing further encroachment. The said suit was decreed by the 4th Jt. Civil Judge, Junior Division, Aurangabad by judgment and decree dated 29.4.1995. The respondent herein preferred Regular Civil Appeal No.177/1995 against the judgment and decree passed by the 4th Jt. Civil Judge, Junior Division, Aurangabad. The said Regular Civil Appeal came to be dismissed on 19.6.2001. Being aggrieved by the dismissal of Regular Civil Appeal, the respondent herein filed Second Appeal No.339/2001 before this Court. By order dated 19.8.2004, the Second appeal came to be dismissed by speaking order. While disposing of the said Second Appeal, this Court, in para 18 observed that there is no substantial question of law involved in the Second Appeal and, therefore, Second Appeal came to be dismissed in limine. At that stage, learned counsel Mr. R.D. Deshpande, appearing for the appellant i.e. respondent herein, in the said Second Appeal submitted that the appellant i.e. respondent herein is running an ice factory in the suit property since about 1968. He is seeking further protection of three months. Such statement was made on instructions of the appellant in the Second Appeal on the ground that the appellant in the Second Appeal i.e. respondent herein C.P. No.93/2008 4 wants to approach the Hon’ble Supreme Court. After hearing the parties to the Second Appeal, this Court, in para 19 held :- “19. In view of the facts and circumstances of the present case, I am inclined to grant three month’s time, subject to filing of an undertaking by the appellant that he shall vacate the property in accordance with the decree passed by the trial Court, within three months. The affidavit/ undertaking to be filed within two weeks from today. In the affidavit, the appellant has to make a statement that he shall not create any third party interest in the suit property and/or alienate the suit property, during this protection period of three months.” 3. It is not in dispute that, the Special Leave Petition No. 24865/2004 was filed by the respondent herein before the Hon’ble Supreme Court challenging the order dated 19.8.2004 in Second Appeal No.339/2001. The said Special Leave Petition came to be dismissed on 14.5.2007. The review petition which was preferred in the Supreme Court also came to be dismissed. The precise contention of the petitioners in this contempt petition is that, the respondent filed undertaking before this Court, thereby giving solemn assurance to this Court that he will vacate the premises within three months. However, the respondent has not vacated the same even after the order dated C.P. No.93/2008 5 14.5.2007, passed by the Hon’ble Supreme Court, dismissing the Special Leave Petition filed by the alleged contemner. Therefore, according to the learned counsel for the petitioners, in spite of undertaking given by the respondent before this Court, that he will vacate the premises within three months from the date of order passed by this Court in Second Appeal No.339/2001, the respondent has not followed the said undertaking given to this Court, which amounts to willful disobedience of the order passed by this Court. According to the learned counsel for the petitioners, it was statement of the counsel for the appellant in the Second Appeal that three months time may be granted and accepting the request/ prayer of the appellant in Second Appeal, this Court granted three months time subject to filing of an undertaking by the appellant that he shall vacate the property in accordance with the decree passed by the trial Court within three months. 4. It is also not in dispute that pursuant to directions in para 19 of the order in Second Appeal, the undertaking was filed before this Court by the respondent herein. It is submitted by the counsel for the petitioner that, the three months time which was granted to the respondent, was on the request of the respondent C.P. No.93/2008 6 and on filing undertaking that he will vacate the premises within three months from the date of order in Second Appeal. Therefore, according to the counsel for the petitioners, when the respondent has filed the undertaking and if the said undertaking is not abided or followed, in that case, it amounts to willful disobedience of the order passed by this Court in para 19 of the order dated 30.8.2004 in Second Appeal No.339/2001. 5. The learned counsel for the petitioners invited my attention to the affidavit-in-reply filed by the respondent in this contempt petition. He submits that, the contention of the respondent that he is illiterate, the undertaking is filed in haste and the Advocate asked to sign the papers, are the contentions which are taken afterthought and deserves to be rejected. The respondent, who is litigating in the Court for so many years, cannot plead the ignorance. It is also submitted that, the stand taken by the respondent that undertaking was filed in haste is also misleading statement. It is further submitted that, even after dismissal of the Special Leave Petition and review petition in the said Special Leave Petition by the Supreme Court, the respondent has not abided by the undertaking given before this Court in Second Appeal and, therefore, there is a clear disobedience of C.P. No.93/2008 7 the directions given by this Court in para 19 of the order in Second Appeal No.339/2001. This Court, on the basis of statement made by the appellant through counsel, granted three months time to the responent to vacate the premises subject to filing undertaking before this Court that he will vacate the said premises within three months and he will not create any third party rights during this protection period of three months. Therefore, according to the learned counsel for the petitioners, the respondent, has given undertaking before this Court in the year 2004, and non adherence of the said undertaking even after six years from giving such undertaking and that itself shows intention of the respondent not to follow the undertaking given before this Court and thereby the respondent has shown disrespect and disregard to the order dated 30.8.2004 passed in Second Appeal No.339/2001 and in particular observations in para 19 of the said order. It is further submitted that, in execution petition, the plea was taken by the respondent that the execution petition is time barred. However, said plea has been negated by the executing Court and thereafter Civil Revision Applications filed before this Court are also dismissed by this Court. The learned C.P. No.93/2008 8 counsel for the petitioners submits that, the suit property, which is shown/ described in the Second Appeal and in undertaking given to this Court is one and the same, therefore, now it is not open for the respondent to contend that in undertaking the description of property was wrongly given. Therefore, according to the learned counsel for the petitioners, this Court granted three months time to the respondent subject to filing of the undertaking, and after giving such undertaking the respondent, in utter disregard to the observations of this Court in para 19 of the order passed in Second Appeal, has not ahdered to the said undertaking. Therefore, this is a fit case in which this Court may punish the respondent for breach of undertaking given to this Court and for breach of order in Second Appeal and in particular para 19 of the said order. 6. The learned counsel appearing for the respondent/ alleged contemner submits that, the contempt petition is filed in the year 2008 and it is barred by limitation as prescribed under Section 20 of the Contempt of Courts Act. According to the learned counsel for the respondent, if at all the petitioners wanted to file contempt petition, they should have filed the same within one year from the date of undertaking given to this Court or from C.P. No.93/2008 9 the expiry of period of three months as stated in the undertaking. Therefore, according to the learned counsel for the respondent, since the contempt petition is not filed within one year from the filing of the undertaking, therefore, such contempt petition cannot be entertained. The learned counsel for respondent invited my attention to provisions of Section 20 of the Contempt of Courts Act and also the judgment of this Court in case of Mahendra Builders Vs. Parvez Ghaswala & ors. reported in [ 2006 (3) Mh.L.J. 668 ]. The learned counsel invited my attention to paras 4 and 7 to 9 of the said judgment and submitted that the limitation would have to be reckoned from the date of knowledge acquired by the petitioners in relation to the existence of the fact. According to the counsel for respondent, from that date on which undertaking was given before this Court, the petitioners were aware that such undertaking has been given and if according to the petitioners such undertaking is violated or there is a breach of undertaking, in that case, contempt petition/ contempt proceedings should have been filed within one year. Since the contempt petition is filed after four years, same may not be entertained since Section 20 of the Contempt of Courts Act provides one year’s limitation for filing the contempt petition. It is further submitted that, throughout the proceedings, there was no stay running against the petitioners C.P. No.93/2008 10 and, therefore, proper course would have been to file execution proceedings. It is further submitted that, the contempt petition should have been filed before 30.11.2005. It is further submitted that, instead of filing contempt petition, the petitioners should have filed execution proceedings and rightly the execution proceedings are filed by the petitioners now and those are pending, therefore, this Court may not entertain this contempt petition. It is further submitted that, filing such contempt petition is an attempt by the petitioners or short cut to get the decree executed. It is further submitted that, the order passed by this Court in second Appeal merged in the order of the Supreme Court in Special Leave Petition and further in review and, therefore, proper course which is open to the petitioners was to file execution petition and now since execution proceedings are pending, this Court may not entertain this contempt petition. The learned counsel submits that, after filing this contempt petition, Darkhast No.177/2009 is filed by the petitioners before the executing Court. In said execution petition, the respondent herein raised the point of limitation. However, said objection was negated by the executing Court and, therefore, the Civil Revision Applications were filed before this Court and this Court has also rejected the said Civil Revision Applications. The learned counsel C.P. No.93/2008 11 further submitted that, the property which was subject matter of the Second Appeal is situated in such a way that it is difficult to hand over the possession of said property. Therefore, according to the learned counsel for the respondent, when the execution petition is pending, this Court may not entertain this contempt petition. 7. The learned counsel for the respondent invited my attention to the reported judgment of the Supreme Court in case of R.N. Dey & ors. Vs. Bhagyabati Pramanik & ors., reported in [JT 2000 (4) SC 629] and submitted that the weapon of contempt is not to be used in abundance or misused. It cannot be used for execution of the decree or implementation of an order for which alternative remedy in law is provided for. The learned counsel invited my attention to paras 7 and 8 of the said judgment and submitted that since execution petition is pending, this Court may not entertain this contempt petition. The learned counsel further invited my attention to the reported judgment of this Court in case of Mrs. Pushpalata w/o Bhausaheb Ghorpade & ors. Vs. Bhimrao Dinkar Fadtare & ors., reported in [ 2010 (1) ALL MR 277 ]. Relying on said judgment, the learned counsel for respondent submits that, it is difficult to hand over the possession of the suit C.P. No.93/2008 12 property since it is situated in such a fashion that unless proper demarcation of the property is done, it is not possible to hand over the possession of the suit property. Therefore, if the respondent is not able to hand over the possession because of the difficulties stated hereinabove, in that case, there is no willful disobedience of the order passed by this Court or undertaking given to this Court. The learned counsel further invited my attention to the reported judgment of the Supreme Court in case of Deoram, reported in AIR 1991 SC 326. It is submitted that, even in that case undertaking was given by the alleged contemner therein, however, said undertaking was not complied. However, the Supreme Court held that there is no willful or deliberate or reckless disobedience of the order of the Supreme Court. Therefore, according to learned counsel for the respondent, there is no willful breach of the undertaking given to this Court in second Appeal or there is no any breach of order in Second Appeal. Therefore, this contempt petition may be dismissed and notice issued to the respondent may be discharged. 8. This contempt petition was placed for admission on 24.3.2008. This Court was pleased to issue notice to the respondent returnable within three weeks. Again the petition was C.P. No.93/2008 13 listed for hearing on 29.6.2009 when same was adjourned on the request of the petitioners. Again the petition was listed for hearing on 2.9.2009 when Advocate for the petitioner was present, but none was present for the respondent in spite of service. This Court heard the counsel for the petitioner and in said order, reproduced para 19 of the order in Second Appeal No. 339/2001, which was decided on 19.8.2004. This Court has also taken note of the affidavit/ undertaking filed by the respondent on 30.8.2004. It appears that, after perusal of the affidavit filed by the respondent, this Court has noted the fact that the Special Leave Petition filed by the respondent is dismissed on 14.5.2007 and in spite of that the premises are not vacated as per the undertaking dated 30.8.2004. therefore, this Court directed the respondent to appear in person on 6.10.2009 to explain why further action under Contempt of Courts Act should not be taken against him. The matter was adjourned to 6.10.2009. On said date, the Advocate for the petitioners and also Advocate for the respondent appeared before the Court. The respondent/ alleged contemner was also present. The counsel for the respondent prayed for adjournment for filing reply of the respondent. Accordingly, the matter was adjourned to 11.11.2009. However, this Court directed the respondent to remain present on next date C.P. No.93/2008 14 of hearing. Again the matter was listed for further hearing on 11.11.2009. On the said date, at the request of Miss Maya Sancheti, Advocate holding for the Advocate on record for the respondent, matter was adjourned to 18.11.2009. On 18.11.2009, the matter was adjourned to 20.11.2009 at the request of counsel for the respondent by way of last chance. The respondent was directed to remain personally present in this Court. It was further observed that if he fails to remain present on 20.11.2009, non- bailable warrant shall be issued to secure his presence. Again matter was listed on 20.11.2009. On said date, again there was request by the Advocate for the respondent for adjournment and accordingly, matter was adjourned. Thereafter matter was listed for further hearing on 6.1.2010. Again there was request by the counsel for the respondent/ alleged contemner for adjournment and matter was adjourned to 1.2.2010. However, the counsel for the petitioners did not object for the said adjournment. The alleged contemner was present on the said date. He was directed to remain present even on the next date. On 1.2.2010, this Court recorded the statement of the counsel for the alleged contemner that, counsel appearing for the alleged contemner in forms, a review petition, seeking to challenge order dated 14.5.2007 of the Apex Court in Special Leave Petition, is pending before the Apex C.P. No.93/2008 15 Court, details whereof are furnished to the petitioners just now. Therefore, again request was made for adjournment by the counsel for the alleged contemner and accordingly, the matter was adjourned to 18.2.2010. At this juncture, it would be relevant to mention that, in fact review petition filed by the petitioner was not pending and same came to be dismissed on 22.1.2008 as informed today by the counsel for the alleged contemner. (Emphasis supplied) 9. On 18.2.2010, again request for adjournment was made by the counsel for the respondent on the ground that she has to take instructions about the development in the matter before the Hon’ble Apex Court. Accordingly, the matter was adjourned to 9.3.2010. 10. On 9.3.2010, this Court noticed that learned counsel for the petitioners has been elevated to Bench of this Court and, therefore, this Court directed the office to issue notice to make necessary arrangement to represent the petitioners. Notice was made returnable on 20.4.2010. Thereafter the matter was listed on 20.4.2010. On 20.4.2010 when Mr. Kasliwal, Advocate made a statement that he is appearing for the petitioners, therefore, this C.P. No.93/2008 16 Court directed the registry to show the matter under the caption “regular admission”. Again matter was listed for hearing on 7.5.2010, on which date this Court passed the following order : “ Heard learned counsel for respective parties. “Admit”. Issue notice of final hearing to the respondent in the prescribed form to answer the contempt petition. The contempt petition to appear on board as per its turn.” 11. Thereafter, the petition was listed for final hearing time to time. On 8.6.2011, same was adjourned on the request of the counsel for the respondent. Again on 4.8.2011 matter was listed for final hearing and request was made by the counsel for the petitioner to take this matter for hearing since the matter was adjourned time to time on number of occasions. Accordingly, this Court directed the registry to list this matter on 9.8.2011 for hearing. However, on 9.8.2011, the counsel appearing for the respondent, on instructions from the relative of the respondent, made a statement that the respondent will remain present before this Court on 11.8.2011 i.e. today and accordingly, the respondent is present before this Court. The matter is extensively heard. Arguments of the counsel for the petitioners and counsel for the respondent are elaborately recorded. C.P. No.93/2008 17 On query to the counsel for the respondent that if she wish to add anything in addition to the arguments which are already advanced, the learned counsel for the respondent submits that, she has nothing to add further in the arguments which are already advanced. 12. At this juncture, it would be relevant to reproduce the undertaking given before this Court in Second Appeal No.339/2001 by the alleged contemner. The said undertaking is placed at Exhibit B, page 32 of the compilation of the contempt petition, which reads thus : “ I, Subhash s/o Shriramlal Jaiswal, Age 54 years, Occ. Business, R/o Juna Bazar, Aurangabad, appellant above named do hereby state on oath and my Second Appeal No.339 of 2001 has been rejected summarily after hearing both the parties on 19.8.2004 and time of three months has been granted by his Lordship (Coram : S.B. Deshmukh, J.) for vacating the suit premises i.e. open site admeasuring 30’ x 16’ out of S.No.24 (In fact it should be 124) allotted CTS No.115 situated at Juna Bazar, Aurangabad. It is my case is that the disputed property is owned and possessed by me while it is the case of the repsondent, that it is Wakf property and learnt out to father of respondents for 99 years. Since my Second Appeal as has been dismissed and I want to prefer Special Leave Petition in the Honourable Supreme Court of India being aggrieved by order of dismissal of Second Appeal. I hereby undertake that I would vacate the disputed site and deliver in possession for the respondent after 3 months, from the date of judgment and shall not create my third party interest in respect of the disputed property.” C.P. No.93/2008 18 13. In pursuance to the notice issued in this Contempt petition, the respondent/ alleged contemner has filed affidavit-in- reply on 6.10.2009. It is stated in para 2 of the said affidavit-in- reply that, the instant contempt petition is not at all maintainable as there is enormous delay in filing the same because the so called undertaking is executed on 30.8.2004 and the petitioners have filed the present contempt petition in the year 2008. It is further stated that, civil suit came to be decreed on 29.4.1995, First Appeal was preferred which came to be disposed of on 19.6.2001, Second Appeal came to be disposed of by this Court on 19.8.2004 and thereafter matter went to the Hon’ble Supreme Court and Special Leave to Appeal came to be dismissed on 14.5.2007. Now the revision petition (Civil) filed by this deponent is pending before the Hon’ble Supreme Court of India against the order in Special Leave to Appeal (Civil) No.24865/2004, dated 11.5.2007. Now the petitioners have filed present Contempt Petition No.93/2008 on 4.3.2008. Even there is a delay and laches on the part of the present petitioners in filing the petition and, therefore, the petition deserves to be dismissed. It is further stated in the said affidavit-in-reply that there is no deliberate and willful disobedience of undertaking given by the deponent. However, this deponent tenders his unconditional apology before C.P. No.93/2008 19 this Hon’ble Court in case if this Hon’ble Court comes to a conclusion that this deponent has committed contempt of the Court. (Emphasis supplied) 14. Therefore, from reading para 2 of the affidavit-in-reply filed by the alleged contemner, it is clear that, the unconditional apology is tendered only in case if this Court comes to a