:1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION CONTEMPT CONTEMPT CONTEMPT PETITION NO. 31 OF 2008 PETITION NO. 31 OF 2008 PETITION NO. 31 OF 2008 IN IN IN SUIT SUIT SUIT NO. 992 OF 1998 NO. 992 OF 1998 NO. 992 OF 1998 Subhash Agrawal. ...Petitioner/ Original Defendant No.2. V/s. Shekhar Agrawal & Ors. ... Respondents/ Original Plaintiffs/Contemnor. Mr. A. Saraogi a/w. Mr. S. Chaurasia for the Petitioner. Mr. R.J. Cama a/w. Ms. Pallavi Dedhia i/b. Sanjay Udeshi & Co. for Respondent No.1 ..... CORAM CORAM CORAM : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. 24TH 24TH 24TH NOVEMBER 2008. NOVEMBER 2008. NOVEMBER 2008. P.C. P.C. P.C. : : : . This Contempt Petition is by the Original Defendant No.2 in Suit No.992 of 1998. The alleged contemnor is Respondent No.1/Original Plaintiff. 2. Suit No.992 of 1998 is filed by the First Respondent against the original Defendants including the present Petitioner for declaration that the First Respondent is entitled to 2/7th share in the HUF properties. 3. During the pendency of the suit, the original Plaintiff applied for interim reliefs vide Notice of :2: Motion No. 2351 of 2000 and on 26th November 2001, this Court after hearing the First Respondent so also the Counsel for Defendant No.1 passed an order making the Motion absolute in terms of prayer clause (b). In other words, there was an injunction in favour of the Plaintiffs and against the Defendants to the extent indicated in the order passed by this Court. 4. It is stated that the schedule to the immovable properties annexed to the plaint includes an immovable property which is situated at 100-100A, 3rd Bhoiwada, Bhuleshwar, Bombay - 400 002 more particularly described in the schedule at Item No.2. On this land there exists a structure of ground plus three floors and it is alleged by the present Contempt Petitioner that the plaint proceeds on the basis that this is a HUF property wherein all the parties to the Suit have a share. In such circumstances, assuming without admitting that the Plaintiff has any share in the property, then, even the Defendants have some share. In such circumstances and when the Suit is claiming partition and separate possession of these shares, then, the original Plaintiff is equally bound by the order and directions and therefore, could not have created any third party rights in the said property or portions thereof. 5. However, it is alleged that the original Plaintiff has suppressed from this Court the fact that he has :3: created tenancies in respect of this property and has been recovering the rent and transfer charges. He is not accounting for the transfer charges. He is taking advantage of an injunction in his favour and alienating the said property. Thus, suppressing material facts, the injunction has been obtained and now contrary to the letter and spirit of that order, third party rights are being created. Reliance is placed upon annexure F-2 which is the copy of the public notice issued on 14th December 2007 and annexures G, G-1, G-2, G-3 and G-4 of this Contempt Petition. These are letters addressed by the persons in occupation of various portions of the building which demonstrates that the Petitioner has committed a contempt of this Court’s Order and directions. 6. On the other hand, it is contended by the First Respondent that the injunction order is in favour of the Plaintiff and not against him. It does not restrain him as contended by the Petitioner. That apart, the order is passed in November 2001 and the alleged tenancies are of the year 2008. That apart, now, the Second Defendant has moved a Notice of Motion in this Court and on that Notice of Motion (Notice of Motion No.3200 of 2007) an interim order has been passed by this Court, whereunder, for the first time the Plaintiff has been restrained from creating any further tenancies in any part of the property referred to prayer clause (a) of the said Motion without leave of the Court. In the affidavit it is contended that the :4: restraint is placed for the first time in 2008. That apart, the Contempt Petitioner/Original Defendant NO.2 in Suit No.982 of 1998 has filed a Suit being Suit No.2583 of 2008 and that suit is pending. It is contended that the Contempt Petition is an abuse of the process of this Court. 7. I have heard Mr. Saraogi appearing for the Petitioner and Mr. Cama appearing for the First Respondent. With their assistance, I have perused the Petition and the annexures thereto. I have also perused the affidavit in reply and the annexures to the same. I have refused the request of Mr. Saraogi for an adjournment to file a rejoinder and I proceeded to hear him on the basis of denials. 8. Having perused the above material, I am of the view that the Contempt Petition is misconceived and not maintainable. There is no restraint or bar which was in force against the Plaintiff. The injunction order passed in November 2001 was very clear and that was against the Defendants including the present Petitioner. When the public notice was issued pointing out pendency of the Suit and informing the public at large not to deal with the property that the letters annexed as Annexures G-1 to G-4 were received by the Petitioners Advocate. Perusal of the public notice itself makes it clear that the public at large was informed not to deal with in any manner with any :5: person with regard to the property known as "Little Lodge" and more particularly described in the notice. The notice itself states that none should undertake any transaction including transfer of tenancy and payment of rent, etc. which means that the Petitioner was aware of the tenancies. That apart, by a letter dated 5th January 2008, each of the persons in occupation purportedly as a tenant addressed a letter through the Petitioner’s Advocate and invited the attention of the Petitioner to the rights created in their favour. It is based upon the public notice and the letters that the Notice of Motion was moved by the Petitioner in 2008 and on which the interim order was passed. Reading of all this makes it clear that the restraint against the Plaintiff - Petitioner before me from creating further tenancies was placed in 2008 and there were no such restraint earlier. In such circumstances, in my view, there is no question of proceeding in contempt jurisdiction. All allegations made by the present Petitioner and denials thereof by the First Respondent are matters on merits of the controversy. That is not for this Court to decide in its contempt jurisdiction. . It is not possible to agree with Mr. Saraogi that this Court should proceed in contempt for alleged false and misleading statements made by the Respondent in the plaint and the Notice of Motion moved by him. Admittedly, that is an aspect which could have been raised when this :6: Court was seized of the Notice of Motion itself or subsequently. From 2001 to 2007-2008 nothing has been done by the Petitioner in placing before this Court the alleged misleading and false statement. Now, he has moved for substantiative reliefs and the controversy on merits is pending. In these circumstances, even that aspect cannot be made subject matter of this Contempt Petition. 9. For the above reasons, the Contempt Petition fails and it is accordingly dismissed. No costs. It is clarified that all observations and findings are rendered only for the purpose of disposal of the present Contempt Petition and shall not influence the Court while trying the Suit or the Notice of Motion. (S.C. (S.C. (S.C. DHARMADHIKARI,J.) DHARMADHIKARI,J.) DHARMADHIKARI,J.)