1 IN THE HIGH COURT OF BOMBAY AT GOA CONTEMPT PETITION NO.6/2006 IN WRIT PETITION NO.256/2005 AND MISCELLANEOUS CIVIL APPLICATION NO.690/2010 IN CONTEMP PETITION NO.6/2006 CONTEMPT PETITION NO.6/2006 IN WRIT PETITION NO.256/2005 1. Shri Shrinivas Ramnath Pai (since deceased), through legal representatives :- (1) Mrs. Jayanti Pai; (2) Mr. Ramnath Srinivas Pai (3) Mr. Atul Pai; (4) Miss Amita Pai; (5) Miss Anuja Pai, All residents of Shankarwadi, Taleigao, Ilhas-Goa. .. Petitioners v e r s u s Shri Shaikh Yacub Muzawar (since deceased) through legal representatives :- (1) Shri Abbas S. Y. Muzawar (2) Ms. Sukhina S. Y. Muzawar, ( deleted as per order dated 14/03/2011 ) Both residents of House No.16/82/6, Shankarwadi, Taleigao, Ilhas-Goa. .. Respondents 2 Mr. P. Rao, Advocate for the petitioners. Mr. Pravin Naik, Advocate for respondent no.1. Proceedings are dropped against respondent no.2. WITH MISCELLANEOUS CIVIL APPLICATION NO.690/2010 IN CONTEMP PETITION NO.6/2006 Shri Shrinivas Ramnath Pai (since deceased), through legal representatives Mrs. Jayanti Pai and others .. Petitioners. v e r s u s Shri Shaikh Yacub Muzawar (since decesed) through legal representatives Shri Abbas S. Y. Muzawar and another .. Respondents Mr. P. Rao, Advocate for the petitioners. Mr. Pravin Naik, Advocate for the respondents/ applicants. CORAM : A. P. LAVANDE, J. Reserved on : 27 th April, 2011. Pronounced on : 2 nd May, 2011. JUDGMENT : The petitioners have filed Contempt Petition for wilful disobedience of the orders passed by this Court dated 15th September, 2005 passed in W. P. No.256/2005 and order dated 13th December, 2005 passed in M.C.A. No.943/2005. 3 2. Briefly, the facts leading to filing of the Contempt Petition are as under : The petitioners are the legal representatives of Shri Sriniwas Ramnath Pai (the landlord) and the respondents are the legal representatives of Shri Shaikh Yacub Muzawar, (the tenant) who was tenant of deceased Sriniwas Pai in respect of the suit house. By lease deed dated 10th February, 1956, the suit house was leased out to the tenant. The landlord filed an application against the tenant seeking eviction from the said suit house. Since during the pendency of the proceedings the tenant did not deposit the rents due to the landlord, the landlord filed an application under Section 32(4) of the Goa, Daman and Diu Buildings (Lease, Rent, Eviction and Control) Act, 1968 ('The Act' for short) for stopping the proceedings and for direction to the tenant to hand over vacant possession of the suit house to the landlord. By order dated 15th January, 2001, the applications were allowed by the Rent Controller and the tenant was ordered to vacate the suit house. Against the said order Eviction Appeal No.49/2001 was preferred before the Administrative Tribunal, which was dismissed by the Tribunal by order dated 21st February, 2005. It appears that during the pendency of the 4 proceedings before the Administrative Tribunal, the original tenant expired and the respondents, who are his legal representatives, are brought on record. Similarly the original landlord also expired and the petitioners, who are his legal representatives, are brought on record. 3. Being aggrieved by the order dated 21st February, 2005 passed by the Administrative Tribunal, the respondents preferred Writ Petition No.256/2005 before the learned Single Judge of this Court which was summarily rejected by order dated 15th September, 2005. The learned Single Judge granted three months' time to the respondents herein to vacate the said suit house subject to the petitioners individually or collectively filing an undertaking before this Court within two weeks that on or before the expiry of three months they would hand over the peaceful and vacant possession of the suit house and during this time they shall not sub-let or assign or part with possession to anybody and that the rent upto date shall be paid / deposited. In compliance of the said order, respondent nos.1 and 2 gave a joint undertaking on 29th September, 2005. The said undertaking was given without prejudice to their right to have recourse to other statutory remedies. Against the said order, the petitioners preferred Special Leave to Appeal 5 (Civil) No.23808/2005 before the Apex Court, which was dismissed by the Apex Court by order dated 2nd December, 2005. The Apex Court granted liberty to approach the High Court for extension of time. 4. The respondents herein filed an application dated 12th December, 2005 seeking extension of time by three months for vacating the suit house. This Court by order dated 13th December, 2005 granted further time of two months to hand over the vacant possession of the suit house and it was made clear that no further extension would be granted. Thereafter, on 10th February, 2006, the respondents herein filed Writ Petition No.50/2006 seeking extension of time to vacate the suit house which was dismissed by order dated 23rd February, 2006. 5. The petitioners filed the present petition on 4th March, 2006 alleging that the respondents had wilfully and deliberately disobeyed the orders passed by this Court. 6. Notices were issued to both the respondents. However, in the meantime, it appears that respondent no.2, who is the sister of respondent no.1 had got married and had gone abroad. Since respondent no.2 could not be served in 6 spite of several attempts on the part of the petitioners, by order dated 14th March, 2011, the proceedings against respondent no.2. were dropped. On 6th October, 2010, respondent no.1 filed M.C.A. No.690/2010 for dismissal of Contempt Petition No.6/2006 on the ground that the suit house had collapsed and as such Contempt Petition has become infructuous. 7. On 10th April, 2006, respondent no.1 filed affidavit-in-reply. In Paragraph 1, respondent no.1 offered unconditional apology. In the said affidavit-in-reply, it is the case of respondent no.1 that he vacated the suit house on 24th February, 2006 after receiving the notice to vacate the suit house within 48 hours. It is further the case of respondent no.1 that they had not put any lock to the suit house. 8. Mr. Rao, learned Counsel for the petitioners submitted that respondent no.1 has wilfully and deliberately disobeyed the orders dated 15th September, 2005 passed in W. P. No.256/2005 and order dated 13th December, 2005 passed in M.C.A. No.943/2005 by which respondent no.1 was bound to vacate the suit house by 13th February, 2006. 9. According to the learned Counsel unconditional 7 apology offered by respondent no.1 does not deserve to be accepted having regard to the conduct of respondent no.1. He further submitted that the stand of respondent no.1 was that he vacated the suit house on 24th February, 2006 cannot be accepted in as much as the lock on the suit house was broken upon under panchanama dated 30th November, 2009 conducted by Circle Inspector, a copy of which is placed on record. Therefore, the stand of respondent no.1 that he had vacated the suit house on 24th February, 2006 or that the petitioners themselves put lock to the suit house, is difficult to be accepted. He further submitted that this is a gross case in which respondent no.1 has deliberately and intentionally disobeyed the orders passed by this Court and after giving undertaking to the Court to vacate the suit house, respondent no.1 has committed contempt of this Court. As such, respondent no.1 be punished for having committed contempt of this Court. 10. Per contra, Mr. Naik, learned Counsel for respondent no.1 submitted that the contempt alleged against respondent no.1 has not been proved against respondent no.1 beyond reasonable doubt and, therefore, respondent no.1 deserves to be discharged. According to learned Counsel, respondent no.1 had vacated the suit house on 24th February, 8 2006 and as such, the case of the petitioners that respondent no.1 has wilfully and intentionally disobeyed the order of this Court, cannot be accepted. He further submitted that since the suit house has already collapsed as is evident from the photographs produced in M.C.A. No.690/2010, the contempt proceedings against respondent no.1, do not survive. Lastly Mr. Naik submitted that in the event this Court comes to the conclusion that respondent no.1 has committed contempt of this Court, apology tendered by respondent no.1 be accepted and respondent no.1 be not sentenced to undergo imprisonment since normal rule is impose fine. In support of his submissions, Mr. Naik relied upon the following judgments : (i) The Goa Urban Co-operative Bank Ltd. Vs. M/s. Nizari Builders and 3 others; 1989(1) GLT 18. (ii) Smt. Pushpaben and another Vs. Narandas V. Badiani and another; AIR 1979 SC 1536 (iii) Shanti Sarup Gupt Vs. Anjuman Isnai Ashria; AIR 1982 SC 1461. 11. I have carefully considered the rival submissions and perused the record and the judgments relied upon. 12. In terms of the order dated 15th September, 2005 9 passed in W. P. No.256/2005, order dated 13th December, 2005 passed in M.C.A. No.943/2005 and in terms of undertaking dated 29th September, 2005 given by respondent no.1, respondent no.1 was bound to vacate the suit house on or before 13th February, 2006. It is the case of respondent no.1 himself that he vacated the suit house on 24th February, 2006. In so far as the stand taken by respondent no.1 that he had vacated the suit house on 24th February, 2006 is concerned, I find it difficult to accept the same for two reasons. Firstly, in terms of the order dated 15th September, 2005 passed by the learned Single Judge of this Court in W.P. No.256/2005, respondent no.1 was granted three months' time to hand over peaceful and vacant possession of the suit house subject to certain conditions. Therefore, in terms of the said order, respondent no.1 was not only bound to vacate the suit house but also bound to hand over the possession of the suit house to the landlord. It is pertinent to note that in the affidavit-in-reply dated 10th April, 2006, respondent no.1 has nowhere stated that he had handed over the possession of suit house to the landlord. Therefore, the case of the petitioners that respondent no.1 did not hand over the possession of the suit house deserves to be accepted. Moreover, perusal of the panchanama dated 30th November, 2009 discloses that the lock of the suit house was broken 10 open in the presence of two panchas by Circle Inspector attached to office of the Mamlatdar Tiswadi. It is difficult to accept the stand of respondent no.1 that it was the petitioners, who had locked the front door of the suit house with a view to claim that respondent no.1 had not handed over the possession to him. Thus, I have no hesitation to hold that respondent no.1 has wilfully disobeyed the orders dated 15th September, 2005 in W. P. No.256/2005 and 13th December, 2005 in M.C.A. No.943/2005 passed by this Court. 13. In so far as the apology tendered by respondent no.1 is concerned, the same does not deserve to be accepted considering the factual background in the present case. 14. In so far as argument of Mr. Naik that since the suit house has collapsed, the contempt proceedings have become infructuous is concerned, I find absolutely no substance in the same. Even if the statement made and photographs produced in M.C.A. no.690/2010 are accepted at the most it proves that the suit house has collapsed, rendering the suit house unfit for residential purpose on 24th September, 2010 when photographs were taken. This fact by itself would not absolve respondent no.1 from contempt committed by him. No doubt, in the case of Goa Urban Co- 11 operative Bank Ltd. (supra), the Division Bench of this Court has held that contempt must be proved beyond reasonable doubt and in case of doubt, the benefit of doubt should go to contemner. In my opinion, in the present petition, the petitioners have been able to establish beyond reasonable doubt that respondent no.1 has wilfully disobeyed the orders dated 15th September, 2005 in W. P. No.256/2005 and 13th December, 2005 in M.C.A. No.943/2005 passed by this Court. In the case of Shanti Sarup Gupta (supra), the Apex Court accepted the undertaking given by the contemner that he was ready and willing to carry out the undertaking given by him that he will give possession of the disputed property. The facts in the said case are not similar to the present case and as such, the judgment in the said case, does not advance the case of respondent no.1. 15. The next question which arises for consideration is what would be the appropriate punishment to be imposed on respondent no.1 for contempt he has committed. In the case of Smt. Pushpaben (Supra), the Apex Court has held that normal rule is to pass sentence of fine and sentence of imprisonment must be passed in extreme cases by giving such reasons after proper application of mind that a sentence of imprisonment is called for in particular 12 situation. 16. In the present case, the contempt has not only been gross but respondent no.1 has taken a stand that he had vacated the suit house on 24th February, 2006 which for the reasons stated above, is found to be unacceptable. Thus, the conduct of respondent no.1 is such that he does not deserve any leniency from this Court. Respondent no.1 has contested Contempt Petition and as stated above, at no point of time, has come with a case that he had handed over the possession of suit house to the petitioners. In my opinion, therefore, this is a fit case in which the normal rule of imposition of fine deserves to be departed from. In my opinion, interest of justice would be served if respondent no.1 is sentenced to undergo Simple Imprisonment of one week and to pay fine of Rs.1,000/-. Respondent no.1 is, therefore, sentenced to undergo Simple Imprisonment for one week and to pay fine of Rs.1,000/-. Bail bond executed by respondent no.1 stands discharged. 17. Contempt Petition No.6/2006 and M.C.A. No.690/2010 stand accordingly disposed of. 18. At this stage, Mr. Naik, learned Counsel for respondent no.1 seeks suspension of substantive sentence of 13 imprisonment for a period of 30 days on the ground that respondent no.1 would like to prefer an appeal against the order passed by this Court. 19. In view of the above, the substantive sentence of imprisonment imposed on respondent no.1, is suspended for a period of one month. Respondent no.1 is granted time of one month to pay the fine amount. A. P. LAVANDE, J. SMA