AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CONTEMPT APPEAL NO.1 OF 2010 IN CONTEMPT PETITION NO.75 OF 2009 IN SECOND APPEAL NO.722 OF 2000 Chandrakant Shankarrao Machale, residing at Sai Mandir Road, Gadhinglaj, District Kolhapur, Maharashtra. ) ) ) ) ... Appellant (Orig. Respondent) Vs. 1. Ashok Bhairu Mohite ) 2. Smt. Anjali Vasant Mohite. ) 3. Vasant Bhairu Mohite ) 4. Yashwant Bhairu Mohite, all residing at Main Road, Gadhinglaj, Tal. Gadhinglaj, Dist. Kolhapur. ) ) ) ) 5. Smt. Indubai Maruti Birje, Chinchewadi, Tal. Gadhinglaj, District Kolhapur. ) ) ) ... Respondents (Orig. Petitioners). 6. Smt. Shankuntala Bacharam Hajare ) ) 7. Smt. Rajashri Rajkumar Surve, Ugarkhurd, Tal. Ayani, District Belgaon. ) ) ) AJN 2 8. Sulochana Sambhajirao Suryavanshi, Pune-Solapur Road, Indapur, District Pune. ) ) ) 9. Smt. Suhasini Deepak Podar, Khadar Bazar, Kolhapur. ) ) 10 . Smt. Shavbai Krishna Mohite, Taluka Gadhinglaj, District Kolhapur. ) ) ) 11 . Prakash Krishna Mohite, Taluka Gadhinglaj, District Kolhapur. ) ) ) ... Respondents Mr. D.B. Patil with Ms. M.D. Patil for the appellant. Mr. Sanjay Jain for the respondents. CORAM: SMT. RANJANA DESAI & MRS. MRIDULA BHATKAR, JJ. DATE ON WHICH THE ORDER IS RESERVED : 10TH MARCH, 2010. DATE ON WHICH THE ORDER IS PRONOUNCED: 23RD MARCH, 2010. JUDGMENT :- (Per Smt. Ranjana Desai, J.) 1. In this contempt appeal, the appellant has challenged judgment and order dated 10/2/2010 passed by learned Single Judge of this court in Contempt Petition AJN 3 No.75 of 2009. It is necessary to begin with the facts. 2. Respondents 1 to 11 filed a suit in the Court of Civil Judge, Junior Division, Gadhinglaj being R.C.S. No.34 of 1990 seeking redemption of mortgage and possession of the suit premises against the appellant. On 13/1/1997, the said suit was dismissed by the trial court. The respondents carried an appeal from the said order, which was allowed by the appellate court on 5/8/2000. The suit was decreed. The appellant filed a second appeal in this court being Second Appeal No.722 of 2000 challenging the decree dated 5/8/2000. On 28/11/2006, the said appeal was dismissed by learned Single Judge of this court. While dismissing the said appeal, learned Single Judge gave the appellant four months' time to vacate the suit premises on his furnishing usual undertaking to this court within a period of four weeks from the date of the order i.e. from 28/11/2006. Learned Single Judge made it clear that filing of undertaking and grant of time to vacate the suit premises shall not curtail the right of the AJN 4 appellant to carry the matter further, if he so desires. Learned Single Judge, however, ordered that if the appellant failed to file usual undertaking within the aforestated period, the respondent therein shall be at liberty to execute the decree. 3. Pursuant to this order, the appellant filed an undertaking on 8/12/2006. In the undertaking, he described the undertaking as usual undertaking and stated that he was in actual use, occupation and possession of the suit premises and he undertakes to vacate and handover peaceful possession of the same to the respondents as per the orders of this court including the Supreme Court. The appellant carried the order of learned Single Judge dated 28/11/2006 to the Supreme Court. The special leave petition filed by the appellant was dismissed on 13/3/2008. The respondents demanded possession of the suit premises from the appellants in October, 2008. However, the appellant refused to hand over possession of the suit premises. In the AJN 5 circumstances, Contempt Petition No.75 of 2009 came to be filed by the respondents. By the impugned order, learned Single Judge held that the appellant had committed a contempt of the undertaking given by him to this court. Learned Single Judge observed that unless the appellant purges the contempt by vacating and handing over the suit premises, he shall be committed to civil prison for a term exceeding one month. The appellant was also directed to pay fine of Rs.2,000/-. Contempt petition was disposed of accordingly. The said order is challenged in this contempt appeal. 4. We have heard learned counsel for the appellant at considerable length. He submitted that the contempt petition is barred by the law of limitation. Counsel submitted that the four months' time to vacate the suit premises given to the appellant expired on 28/3/2007. The appellant filed undertaking on 8/12/2006. If there was breach of undertaking, the respondents ought to have filed the contempt petition within one year from AJN 6 28/3/2007 i.e. by 28/3/2008 as per Section 20 of the Contempt of Courts Act, 1971. Contempt petition came to be filed on 17/12/2008. It is, therefore, time barred and should have been dismissed by this court. Counsel submitted that if it is held that the period of limitation started running from 13/3/2008 when the Supreme Court dismissed the appellant's appeal even then the contempt petition is barred by limitation. 5. Counsel urged that it is only when the court has formed an opinion that a prima facie case for initiating proceedings for contempt is made out that the alleged contemners should be called upon to show cause why they should not be punished, then the court can be said to have initiated proceedings for contempt. Such initiation of proceedings for contempt based on application of mind by the court to the facts of the case and the material before it must take place within a period of one year from the date on which the contempt is alleged to have been committed failing which jurisdiction to initiate proceedings AJN 7 for contempt is lost. In this connection, counsel relied on judgment of the Supreme Court in Om Prakash Jaiswal v. D.K. Mittal & Anr. 2001 (1) Mh.L.J. 333 where the Supreme Court has also observed that Section 5 of the Limitation Act does not apply to proceedings under the Contempt of Courts Act, 1971. Counsel submitted that in this case the Supreme Court dismissed the appellant's appeal on 13/3/2008. If the period of limitation started running from that day, it ended on 13/3/2009. Notice was issued to the appellant by this court stating that the preliminary hearing of the contempt petition will take place on 31/3/2009. This court applied its mind to the facts of the case on 31/3/2009 and, therefore, this court initiated the proceedings on 31/3/2009. Counsel submitted that obviously therefore the proceedings were initiated beyond the period of limitation, that is after 13/3/2009 and on this ground the contempt petition ought to have been dismissed. Counsel also relied on State of West Bengal & Ors. v. Kartick Chandra Das & Ors. (1996) 5 SCC 342. Counsel further submitted that this AJN 8 being a civil contempt, learned Single Judge could not have sentenced the appellant. Counsel submitted that in the event this court is not with the appellant on merits of the case, order sentencing him be set aside. In this connection, counsel relied on Smt. Pushpaben & Anr. v. Narandas V. Badiani & Anr. (1979) 2 SCC 394 and Niaz Mohammad & Ors. v. State of Haryana & Ors. (1994) 6 SCC 332. 6. There is no dispute about the fact that learned Single Judge dismissed the appellant's second appeal on 28/11/2006. Four months' time was granted to the appellant to vacate the suit premises. That period expired on 28/3/2007. The appellant was directed to file the usual undertaking within four weeks from 28/11/2006. All this was without prejudice to his right to carry the matter further if he so desired. The appellant filed undertaking on 8/12/2006 stating that he was in actual use, occupation and possession of the suit premises and he undertakes to vacate and hand over peaceful possession as per the AJN 9 orders of this court including the Supreme Court. The appellant did carry learned Single Judge's order to the Supreme Court. On 1/4/2007, the Supreme Court granted leave and admitted the appeal. It was dismissed by the Supreme Court on 13/3/2008. In view of the fact that the Supreme Court was seized of the appellant's appeal from 1/4/2007 till 13/3/2008, learned Single Judge's judgment was in flux. The respondents could not have demanded possession during this period. In October, 2008, the respondents demanded possession. The appellant refused to handover possession and, therefore, contempt petition was filed on 17/12/2008. 7. In our opinion, there is no delay in filing the contempt petition. It is pertinent to note that learned Single Judge had given liberty to the respondents to execute the decree if the appellant failed to file usual undertaking within four weeks from 28/11/2006. Since the undertaking was filed within the stipulated period i.e. on 8/12/2006, the respondents could not have executed AJN 10 the decree during the period of four months as learned Single Judge had granted four months' time to vacate the suit premises. However, the appellant's right to approach the Supreme Court was not curtailed. As we have already noted since special leave petition filed by the appellant was pending from 1/4/2007 to 13/3/2008 on which day, it was dismissed the respondents could not have executed the decree as it had not assumed finality. In our opinion, period of limitation must be counted from 13/3/2008 when the Supreme Court dismissed the special leave petition. Therefore, the contempt petition filed on 17/12/2008 is well within time. 8. Reliance placed by counsel for the appellant on Om Prakash Jaiswal is wholly misplaced. Mr. Jain, learned counsel for the respondents has drawn our attention to the judgment of the Supreme Court in Pallav Sheth v. Custodian & Ors. (2001) 7 SCC 549 which has overruled judgment in Om Prakash Jaiswal. It is not necessary to go into all the facts which were before the AJN 11 Supreme Court because we are only concerned with the construction placed on Section 20 of the Contempt of Courts Act, 1971. The Supreme Court observed that the decision in Om Prakash Jaiswal to the effect that initiation of proceedings under Section 20 can only be said to have occurred when the court formed the prima facie opinion that contempt has been committed and issued notice to the contemnor to show cause why it should not be punished, is taking too narrow a view of Section 20 which does not seem to be warranted and is not only going to cause hardship but would perpetrate injustice. The Supreme Court observed that a provision like Section 20 has to be interpreted having regard to the realities of the situation. 9. Paragraph 44 of the said judgment is material. It reads as under : “44. Action for contempt is divisible into two categories, namely, that initiated suo motu by the court and that instituted otherwise than on the court's AJN 12 own motion. The mode of initiation in each case would necessarily be different. While in the case of suo motu proceedings, it is the court itself which must initiate by issuing a notice, in the other cases initiation can only be by a party filing an application. In our opinion, therefore, the proper construction to be placed on Section 20 must be that action must be initiated, either by filing of an application or by the court issuing notice suo motu, within a period of one year from the date on which the contempt is alleged to have been committed.” 10. Therefore, in cases otherwise than suo motu proceedings initiation of action for contempt can be by a party filing an application and application must be filed within a period of one year from the date on which the contempt is alleged to have been committed. 11. It was pointed out to the Supreme Court that even if the provisions of Section 20 do not bar the High Court from taking action if proceedings are initiated by the filing of an application within a period of one year of the contempt having been committed, because the period of AJN 13 limitation had expired long before the filing of the application by the Custodian appointed under the Special Courts Act alleging contempt of Special Court's order. In this context, the Supreme Court referred to Section 29(2) of the Limitation Act, 1963 and observed that Section 29(2) provides that where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law the provisions contained in Section 4 to 24 (inclusive) shall apply insofar as and to the extent to which they are not expressly excluded by such special or local law. In the facts before it, the Supreme Court held that therefore Section 17 of the Limitation Act was attracted to the case. It prevented the period of limitation from running till the Custodian received information about the fraud committed by the appellant therein and, AJN 14 therefore, the application filed by the Custodian within one year after the fraud came to light was within the period of limitation as prescribed in Section 20 of the Contempt of Courts Act, 1971. 12. What is material for the present case is the observation of the Supreme Court that in case of a special law where different period of limitation is prescribed, Sections 4 to 24 of the Limitation Act would be applicable if they are not expressly excluded by the special law. Therefore, the observation of the Supreme Court in Om Prakash Jaiswal that Section 5 of the Limitation Act has no application to the proceedings under the Contempt of Courts Act is overruled in Pallav Sheth. While coming to the above conclusion the Supreme Court referred to Kartick Chandra where it has taken the same view. Counsel for the appellant sought to rely on Kartick Chandra. In our opinion, the said judgment helps the respondents and not the appellant. View taken in Pallav Sheth is reaffirmed by the Supreme Court in Bank of AJN 15 Baroda v. Sadruddin Hasan Daya & Anr. (2004) 1 SCC 360. In Everest Enterprises v. N.K. Constructions Pvt. Ltd. & Ors. 2004 (1) Bom.C.R. 730, learned Single Judge of this court (Nishita Mhatra, J.) has followed Pallav Sheth and taken the same view. 13. The Contempt of Courts Act, 1971 does not specifically exclude Sections 4 to 24 of the Limitation Act. Once Section 5 of the Limitation Act is held applicable, as rightly observed by learned Single Judge, the court can grant extension of prescribed period of limitation upon being satisfied that there was sufficient cause for not preferring the application within the prescribed period of limitation. In this case, the appellant's right to approach the Supreme Court was kept intact. He approached the Supreme Court. His special leave petition was admitted on 1/4/2007 and it was dismissed on 13/3/2008. The respondents demanded possession in October, 2008 and since it was not handed over, the contempt petition was filed on 17/12/2008. When the matter was sub-judice in AJN 16 the Supreme Court, the respondents could not have taken any steps to initiate contempt proceedings within a year from 28/3/2007 when four months' period granted by learned Single Judge had expired, in deference to the Supreme Court. The respondents indeed had sufficient cause for not making the application within one year from 28/3/2007. Consequently, the period of limitation would get extended. It would start running from 13/3/2008 and contempt petition filed on 17/12/2008 is well within time. Looked at from this angle also, we find that the contempt petition is not time barred. 14. We are also not happy with the conduct of the appellant. The suit premises were correctly described in the plaint. The appellant filed undertaking that he would hand over possession of the suit premises. There was an arithmetical error in the decree. The city survey number of the suit property was shown in the plaint to be 1964 but in decree it was typed as 1064. The appellant took advantage of this and urged before learned Single Judge AJN 17 that he is not in possession of any property in City Survey No.1064 for which the decree is passed. This is a dishonest conduct. The appellant was trying to get over the contempt petition on frivolous and untenable grounds. Learned Single Judge took notice of this and corrected the arithmetic error in city survey number shown in the decree and directed that it may be corrected to read “C.S. No.1964”. The conduct of the appellant to try to evade handing over of the suit premises deserves to be deprecated. 15. Counsel for the appellant urged that this being a civil contempt, learned Single Judge should have imposed fine and not punishment. In civil contempt, fine is the rule and imprisonment is the exception. 16. Proposition of law stated by the counsel is correct. In civil contempt, generally sentence of fine is imposed. But, where there is willful disobedience of the court's order and court comes to the conclusion after application of AJN 18 mind that ends of justice require imposition of sentence of imprisonment, it can impose sentence of imprisonment after giving special reasons. In Smt. Pushpaben, the Supreme Court observed as under : “Under Section 12(3), normally the sentence that should be given to an offender who is found guilty of civil contempt, is fine and not imprisonment, which should be given only where the Court is satisfied that ends of justice require the imposition of such a sentence. Before a Court passes the extreme sentence of imprisonment, it must give special reasons after a proper application of its mind that a sentence of imprisonment alone is called for in a particular situation. Thus, the sentence of imprisonment is an exception while sentence of fine is the rule.” 17. In Niaz Mohammad, the Supreme Court observed that the Contempt of Courts Act, 1971, defines civil contempt means willful disobedience to any judgment or process of the court or willful breach of an undertaking and, therefore, while examining the grievance of the person who has invoked the jurisdiction of the court to AJN 19 initiate proceedings for contempt for disobedience of its order, before any contemnor is held guilty and punished, the court has to record a finding that the disobedience was willful and intentional. In this case, learned Single Judge has commented on the conduct of the appellant in taking advantage of the typographical error in the decree and contending that he was not in possession of the suit premises. By his conduct, the contemnor compounded the contempt. His conduct makes it evident that he committed willful and intentional breach of this court's order. It is pertinent to note that learned Single Judge has shown leniency. She has imposed sentence of fine. She has given opportunity to the appellant to purge the contempt forthwith by handing over the suit premises failing which the appellant was directed to be committed to civil prison for one month. In the facts of this case, it is not possible for us to hold that punishment of 1 month's imprisonment in civil prison is harsh. 18. In the circumstances, the appeal is dismissed. AJN 20 Needless to say that civil application also stands dismissed. [MRS. RANJANA DESAI, J.] [MRS. MRIDULA BHATKAR, J.]