IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION CONTEMPT PETITION NO.5 OF 2008 CONTEMPT PETITION NO.5 OF 2008 CONTEMPT PETITION NO.5 OF 2008 IN IN IN TESTAMENTARY SUIT NO.36 OF 1984. TESTAMENTARY SUIT NO.36 OF 1984. TESTAMENTARY SUIT NO.36 OF 1984. IN IN IN TESTAMENTARY PETITION NO.449 of 1984. TESTAMENTARY PETITION NO.449 of 1984. TESTAMENTARY PETITION NO.449 of 1984. Gajanan Chandrarao Sawant ..Plaintiff versus Vijay Prakash Chandrarao Sawant & Others ..Defendants Mr.V.A.Thorat, learned Counsel with T.G.Vora i/b. Tamhane & Co. for the Petitioner Mr.Rajiv Bhatia for the respondents CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 17th January, 2009. DATED : 17th January, 2009. DATED : 17th January, 2009. P.C. 1. The petitioner has filed this contempt petition and has prayed that respondent Nos.1 and 2 be dealt with in accordance with the provisions of Contempt of Court Act (hereinafter referred to as the said Act). The petitioner has also sought possession from the respondent with regard to the suit property i.e. Room No.3, more particularly set out in prayer clause (a) of the petition. 2. This petition was taken up for admission and I have extensively heard learned Senior Counsel -2- Mr. Thorat in support of the petition. Keeping in view the extensive arguments advanced, a detail order is required to be passed in order to attend to this petition. Few facts are required to be stated as to the circumstances which led to filing this petition. One Chandrabhaga instituted petition No.449 of 1984 for securing letters of Administration with the copy of the Will annexed dated 11.2.1966, that of Chandrarao who happened to be the husband of said Chandrabhaga. Since caveats were filed, the said petition got converted into Suit No.36 of 1984. The present petitioner is one of the defendants in the said suit. Present respondent No.1 Vijay Prakash was original defendant in the said suit. On account of death of said Chandrabhaga, the Chamber Summons was taken out by respondent No.1 Vijay Prakash being Chamber Summons No.743 of 2001. I shall advert to this Chamber Summons at little later. 3. During the lifetime of Chandrabhaga and during the pendency of the Testamentary Petition No.449 of 1984, present petitioner had taken out Notice of Motion NO.2139 of 1985 against Chandrabhaga. In the said motion on 5.12.1985 said -3- Chandrabhaga, through her advocate gave an undertaking to this Court that she would not alienate, transfer, encumber or deal with or dispose of the property at Bombay in any manner pending the disposal of said petition. This undertaking according to the petitioner applied in regard to room No.3 (hereafter referred to as suit room) and other properties. 4. After the death of Chandrabhaga on 13.12.2000 respondent No.1 who was shown as defendant No.1 in the testamentary suit applied for being transposed as plaintiff by taking out Chamber Summons NO.743 of 2001. That Chamber Summons was dismissed. Against the Order of dismissal of the Chamber Summons, Vijay Prakash- respondent No.1 filed Appeal No.72 of 2002. Said appeal was allowed by Order dated 18.1.2008 and respondent No.1 was transposed as plaintiff. 5. It is required to be mentioned that after the death of Chandrabhaga on 13.12.2000 no motion was moved by the present petitioner so as to obtain an Order of injunction as was done in the past during the life of Chandrabhaga. It is the case of -4- the petitioner that on 9.5.2008 respondent No.1 executed an agreement in favour of respondent No.2 in regard to the suit room and thereby created tenancy in favour of the respondent No.2. 6. According to the petitioner, execution of this agreement dated 9.5.2008 in favour of the respondent No.2 by respondent No.1, (hereafter referred to as suit agreement) amounted to Contempt of Court in as much as according to the petitioner, the execution of the suit agreement resulted in violation of the undertaking which was given by Chandrabhaga in Notice of Motion on 5.12.1995. 7. I have extensively heard learned Senior Counsel Mr.Thorat in support of the petition. According to him the undertaking then given by Chandrabhaga was binding upon Vijayprakash particularly when he was aware of the said undertaking and therefore he could not have created tenancy and thereforee the execution of the suit agreement should be treated as an act done by respondent No.1 in contempt. 8. According to learned Senior Counsel Mr. -5- Thorat undertaking was given for the benefit of the estate in regard to which the petition/suit was filed and therefore the present respondent No.1 could not have executed the suit agreement. According to learned Senior Counsel Mr. Thorat it is the duty of this Court to maintain majesty of this Court and the Court should hold that the respondent Nos.1 and 2 have committed contempt of Court. It was submitted that respondent NO.2 was aware of the proceeding pending in regard to the suit room in as much as a notice board was affixed to the suit property regarding pendency of the suit and hence respondent No.2 had knowledge about the pendency of the suit and therefore he should have been careful in not entering into the suit agreement. 9. Learned Senior Counsel Mr. Thorat relied upon the judgment in case of Ahmad Sayyed vs. Ahmad Sayyed vs. Ahmad Sayyed vs. Mohd. Musslin reported in 1996 (38) DRJ 517 Mohd. Musslin reported in 1996 (38) DRJ 517 Mohd. Musslin reported in 1996 (38) DRJ 517 to contend that the undertaking given by Chandrabhaga continued to bind respondent No.1 despite her death on 13.12.2000 and therefore the Court should treat that the respondent No.1 was obliged to behave in accordance with the said undertaking. Mr. Thorat -6- read to me the entire judgment and submitted that the facts in the present case and the one mentioned in the judgment are practically similar and that this judgment takes care of the stand taken by the petitioner. He had also relied upon the judgment in case of Rajnikant Dhulabhai patel & Anr. vs. Rajnikant Dhulabhai patel & Anr. vs. Rajnikant Dhulabhai patel & Anr. vs. Chandrakant Dhulabhai Patel & Ors. reported in Chandrakant Dhulabhai Patel & Ors. reported in Chandrakant Dhulabhai Patel & Ors. reported in 2008(5) ALL MR 409. 2008(5) ALL MR 409. 2008(5) ALL MR 409. This judgment was relied upon by learned Senior Counsel Mr.Thorat in support of his contention that the respondent No.2 had knowledge of the pending proceeding and if that be so the respondent No.2 had committed contempt. For this, my attention was drawn to paragraphs 39 and 40 to contend that the pendency of the proceeding by itself would be the factor which would deter the party from entering into a transaction in regard to the property which is subject matter of the suit. 10. I have considered the submissions and for the reasons to follow, I am inclined to reject this petition at the stage of admission. 11. The fact that Chandrabhaga had given undertaking is made out on the basis of the Order dated 5.12.1985. Similarly, the fact that -7- Chandrabhaga expired on 13.12.2000 is admitted by the petitioner. If this be so, the question is whether the undertaking given by Chandrabhaga during her lifetime could bind the present respondent No.1 after her death. In my view, the answer is in the negative. It is required to be mentioned that the undertaking was given by Chandrabhaga when she was styled as plaintiff in the suit and the said undertaking was given in a proceeding which was initiated by her. The said Notice of Motion No.2139 of 1985 was directed against the said Chandrabhaga who was the plaintiff in the suit and present respondent No.1 was a mere party and had no role to play at the relevant time in the matter of disposal of the various properties for which the notice of motion was taken out. If respondent No.1 had any role to play as regards the disposal of the property, the notice of motion would have been directed against the respondent No.1. From the very fact that the Notice of Motion got disposed of by accepting the undertaking of Chandrabhaga, it is clear that it was directed against said Chandrabhaga. It is required to be mentioned that after the death of Chandrabhaga on 13.12.2006 substantial developments took place in -8- as much as the respondent No.1 applied for being transposed as plaintiff. The application in the nature of Chamber Summons was rejected. That application was granted through Appeal no.727 of 2000 in January 2008 and thereafter he was transposed as plaintiff in place of Chandrabhaga, that is to say from 13.12.2000 till 8.5.2008 no steps were taken by the present petitioner to seek relief similar to one which was asked in Motion No.2139 of 1985. It cannot be said that present petitioner was in dark about the death of Chandrabhaga. Surely it should have struck to the petitioner that after the death of Chandrabhaga, the undertaking given by her has come to an end. The present petition proceeds on the basis that the undertaking given by Chandrabhaga was binding on Respondent NO.1. even after death of Chandrabhaga. In fact, no overt act is committed by the petitioner to caution the present respondent No.1 that undertaking given by Chandrabhaga would be binding on Respondent No.1. It was duty of the petitioner to take out appropriate proceeding after the death of Chandrabhaga and prohibit transfer of various assets. That has not been done and today the petitioner comes forward with contention that -9- the undertaking was binding upon the present respondent No.1 even after her death. Considering the nature of the undertaking given by Chandrabhaga it will have to be observed that the said undertaking was of personal nature and it did not bind others and in particular respondent No.1 who was styled as defendant. If it was the stand of the present petitioner that apart from Chandrabhaga others may also create third party rights or transfer various properties, present petitioner could have taken steps to bind other defendants including respondent No.1 who was shown as defendant in the said suit. 12. The stand taken by the petitioner that the undertaking given by Chandrabhaga was for the benefit of estate cannot be accepted. The present petitioner tried to obtain an injunction which culminated in giving undertaking by Chandrabhaga and was for his benefit in order to see that his rights are not interfered with during the pendency of the suit and for that the Notice of Motion was taken out by the present petitioner with a specific desire to see that no new developments take place during the pendency of the suit. If the present -10- petitioner was so conscious about his rights, nothing prevented him from approaching the Court after death of Chandrabhaga against Respondent No.1. 13. The stand of the petitioner that the judgment in the case of Ahmad Sayyed (supra) is directly applicable to the facts of this case and that the respondent No.1 should be treated as having committed contempt cannot be accepted. The facts in the case of Ahmad Sayyed and the facts of the present case are totally different. The suit in the said case was filed against the husband of a lady who is referred to a respondent No.6. That suit was for recovery of possession of the tenanted premises and the husband of respondent No.6 was the tenant. The said tenant gave an undertaking and on giving that undertaking some time was granted to vacate the premises. Hence by giving the said undertaking the tenant along with his family secured some benefit. That is to say the said undertaking was given for the benefit of the family of the said tenant including respondent No.6. In the present case Chandrabhaga had not given undertaking for the benefit of all persons who were -11- parties to the suit. The said undertaking came to be given by Chandrabhaga as the notice of motion taken out by the present petitioner. 14. The Court in case of Ahmad Sayyed has come to the conclusion that the said respondent No.6 committed contempt by observing that the said respondent No.6 stepped into the shoes of the original tenant after his death. In the present case the present respondent No.1 did not step into the shoes of Chandrabhaga and the present respondent No.1 applied for being joined as party plaintiff. The very fact that the petitioner had not applied for being joined as party plaintiff clearly indicates that he was not interested in being styled himself as plaintiff. In the result it cannot be said that the present respondent No.1 stepped into the shoes of Chandrabhaga and submitted himself to whatever Chandrabhaga had done during her lifetime. The present respondent No.1 undoubtedly came as plaintiff in his capacity as one of the heirs of Chandrarao and that is how the facts of this case differ from the facts set out in the judgment of Ahmad Sayyed (supra). The manner in which the developments have taken place in the -12- present suit, it is difficult to accept that the undertaking given by Chandrabhaga was binding upon the present respondent No.1 and he could be made ipso facto liable for the said undertaking after the death of Chandrabhaga. 15. The petitioner’s reference to the judgment in case of Rajnikant Patel also cannot be accepted so far as the respondent Nos.1 and 2 are concerned. It may be true that the proceedings were pending and that is how the present respondent No.1 was aware of the pendency of the proceeding. However, if there was no Order prohibiting the transfer of any of the properties, surely it cannot be said that the respondent No.1 has committed contempt. As I said earlier, no caution note was given to the respondent No.1 about the undertaking given by Chandrabhaga and it was not even ever pointed out to respondent No.1 that if he proceeded to transfer the various properties it may result into contempt on the count of undertaking given by Chandrabhaga. If this is so, the case against the respondent No.1 fails. 16. So far as respondent No.2 is concerned, -13- there is no specific averment in the petition on the basis of which it is alleged that respondent No.2 has committed contempt. It appears that the petitioners, thought it fit to include respondent No.2 in the petition solely because he entered into an agreement with the respondent No.1. There is nothing specifically pleaded to attribute knowledge of the pending litigation to respondent No.2. The contention that there is a board affixed to the property that a suit is pending is nowhere stated in the petition. If this be so, statement of the petitioner that by putting up a board at site, a cautionary note was given to all concerned, cannot be accepted. In my view, the petitioner has failed to show that the respondent No.2 was aware of pending proceeding. If this be so, the judgment in the case of Rajnikant Patel (supra) would not be applicable to the facts of this case. 17. It is also required to be stated that if there was no order of injunction running against the respondent No.1 or no undertaking was given by respondent No.1, then irrespective of the pending proceeding there would be hardly any case to hold that the respondent No.2 by entering into an -14- agreement committed contempt. 18. For the reasons mentioned aforesaid, I am inclined to observe that the petitioner has failed to make out a case that respondent Nos.1 and 2 have committed contempt and that the petition is liable to be rejected at the stage of admission. 19. In the facts and circumstances of the case, I am not inclined to impose costs on the petitioner. Hence the order. ORDER ORDER ORDER . Petition is rejected. . Learned Counsel for the Petitioner, Mr. Vora who was present at the time of dictation of the Order submitted that this Court should observe that whatever is stated in this Order relates to the Contempt Petition taken out by the petitioner. Needless to mention that whatever is stated in this Order was required to be stated for the purpose of disposing of the contempt petition. No views are -15- expressed on the merits of the suit which is pending before the Court. (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)