1 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.408 OF 2009 IN SHOW CAUSE NOTICE NO.207 OF 2009 IN NOTICE OF MOTION NO.4941 OF 2007 IN SUIT NO.2098 OF 2007 Mohamed Amin Shaikh Appellant (Org. Defendant No.1) Vs. 1. Ayub Ibrahim Shaikh 2. Maharashtra Housing & Area Development Authority 3. Abdul Wahab Shaikh 4. Tahira Gous Mohmed Sharif 5. Hafsa Abdul Karim Nawab 6. Rabia (full name not known) Respondents (Resp.no.1 – Original Plaintiff (Resp.nos.2 to 6 – Org.Deft.Nos.2 to 6) Mr.Anil Mishra with Ms. Savina Bangera for appellant. Mr.J.G.Shukla i/b. M/s.G.H.Shukla & Co. for respondent no.1. Mr.G.W.Mattows for respondent no.2 – State. Mr.Asif I. Patel for respondent no.6. 2 CORAM: B.H.MARLAPALLE & SMT.V.K.TAHILRAMANI,JJ. February 18, 2010. ORDER (PER B.H.MARLAPALLE,J.) 1. This Appeal filed under Section 19 of the Contempt of Courts Act, 1971 is directed against the order of punishment passed under Section 12 of the said Act in Show Cause Notice No.207 of 2008 on 11th February 2009. By the said order the appellant – original defendant no.1 has been sentenced to suffer simple imprisonment for a period of one month as he acted in breach of the order dated 27/7/2007 passed in Notice of Motion No. 2768 of 2007 in Suit No.2098 of 2007. 2. In the said Notice of Motion No.2768 of 2007 the learned trial Judge had passed an order dated 27th July 2007 and granted ad-interim relief in terms of prayer clause (a) against defendant no.1 i.e. the present appellant. Prayer clause (a) in the said Motion reads as under: “(a) that pending the hearing and final 3 disposal of the suit this Hon’ble Court be pleased to issue an order and injunction of this Hon’ble Court thereby restraining the Defendant No.1 and 2 from parting with the possession of the suit premises more particularly mentioned at Exhibit “A” hereto and/or creating third party right, title and interest in respect of the suit premises and/or inducting third persons and/or alienating and/or transferring and/or disposing off and/or dealing with and/or assigning the suit premises in favour of any third person or persons in any manner whatsoever.” 3. On 28/8/2007 when the Notice of Motion appeared before the learned trial Judge the counsel for the plaintiff relying on the affidavit of service dated 27/8/2007 had stated that defendant no.1 has been duly served with the notice as well as the order passed on 27/7/2007. The learned trial Judge accepted that the defendant no.1 was duly served when Notice of Motion No.2768 of 2007 was heard on 27/7/2007 and while granting ad-interim relief it was made returnable on 23rd August 2007 and on 28/9/2007 the Notice of Motion was made absolute in terms of 4 prayer clause (b). 4. Notice of Motion No.4941 of 2007 was taken out afresh by the plaintiff in Suit No.2098 of 2007 as it was, in the mean while noticed, that defendant no.1 had sold the suit property despite the order dated 27/7/2007 to defendant no.6 and, therefore, a fresh injunction was prayed for against defendant no.6 by the said motion. The learned trial Judge, on noticing that the order dated 27/7/2007 was violated and the suit property was sold to defendant no.6, passed an order on 23/1/2008 and issued show cause notice to the 1st defendant calling upon him to explain as to why he should not be proceeded against for the contempt of Court. This notice was served and the defendant no.1 despite this service did not cause his appearance nor did he file any reply to oppose the show cause notice. Consequently the impugned order came to be passed. 5. The learned trial Judge noted that the order passed on 27/7/2007 was served, despite this order the suit room was alienated and sold to defendant no.6 allegedly under sale deed dated 12/6/2007, the said transaction was with an ulterior motive and to defeat the order of injunction. The Court Receiver 5 was appointed and defendant no.6 was directed to pay royalty as well as to furnish security. The show cause notice was also served on defendant no.1 on 5/3/2008 through his wife as per the bailiff’s report and in compliance with the provisions of Order V Rule 15 of CPC. Despite the service of show cause notice calling upon him to remain present before the Court, the defendant no.1 failed to remain present and did not offer any reply to the show cause notice. 6. At the first instance the learned counsel for the appellant submitted that the show cause notice was not served upon him, the defendant no.1 was not available on the old address and the notice, therefore, was returned. No steps were taken to serve the show cause notice on his new address and thus the impugned order came to be passed ex parte without affording him an opportunity to defend himself. He also claimed that unless he was personally served with the show cause notice under the Contempt of Courts Act, the trial Court could not have passed the impugned order. It was also submitted that the sale transaction was completed on 12/6/2007 i.e. before the ad- interim order was passed on 27/7/2007 for temporary injunction and, therefore, there was no question of the defendant no.1 6 acting in breach of the said order of temporary injunction. 7. So far as the service of the show cause notice is concerned, we have perused the bailiff’s report which clearly states that when the bailiff went to serve the show cause notice at the changed address of the defendant no.1, he was not available in the house and his wife talked to him on phone and informed him about the visit of the bailiff to serve the notice, he asked his wife to accept the notice, the wife thereafter accepted the notice, read it and she signed in acknowledgment of the said notice. The record, therefore, indicates that the provisions of Order 5 Rule 15 were fully complied with so far as the service of show cause notice is concerned. 8. So far as the sale deed dated 12/6/2007 is concerned, the trial Judge is right in holding that it was a transaction which was sought to be put up before the Court to frustrate the order of temporary injunction. The defendant no.6 on receipt of notice in the suit has appeared before the trial Court and filed an affidavit in reply. Initially it was contended by the defendant no.6 that the sale transaction was for a consideration of Rs.5,00,000/- (Rupees five lakhs only) but subsequently the affidavit stated 7 that the suit room was sold for Rs.55,00,000/- (Rupees fifty five lakhs only) and an amount of Rs.5,00,000/- was paid to the defendant no.1 on signing of the agreement. She approached the MHADA on 17th August 2007 to incorporate her name as the new owner for the suit room. She also claimed that the agreement of sale was executed on 21st June 2007. She further states that she paid Rs.25,00,000/- (Rupees twenty five lakhs only) by cheques as per the following details: Cheque no. Date Bank Amount (Rs.) 521400 12/9/2007 Bank of India, Bandra (E) Br. 10,00,000/- 521403 18/9/2007 Bank of India, Bandra (E) Br. 10,00,000/- 521402 14/9/2007 Bank of India, Bandra (E) Br. 5,00,000/- She further claimed that an amount of Rs.20,00,000/- (Rupees twenty lakhs only) was paid in cash after withdrawing from the Bank account on 7/8/2007 and 8/8/2007. These withdrawal entries are supported by the photostat copy of the bank account pass-book placed on record. As per her own statement, it is clear that the sale deed was not registered any time before 27/7/2007. The cheque payment or cash payment is 8 on or after 7th August 2007. It is also clear that defendant no.1 had sold her own property for an amount of Rs.71,00,000/- (Rupees seventy one lakhs only) i.e. Room No.26, Bharat Nagar, Plot No.9, Bandra (East) and she claims to have purchased the suit room from the said funds. The record, therefore, indicates that the suit room was sold / transferred to defendant no.6 after the order dated 27/7/2007 was passed in Notice of Motion No. 2768 of 2007, and the record does not support the plea that the suit room was sold on 12/6/2007 or 21/6/2007 and in any case the contemnor has not appeared before us nor has he filed reply to this effect. 9. As per the defendant no.6 she was completely in dark about the order dated 27/7/2007 and the defendant no.1 had at no point of time intimated her regarding the pendency of the suit as well as the order of temporary injunction passed by the Court. Apparently on account of this act of the defendant no.1 not only the plaintiff but the defendant no.6 has also suffered. She has parted with a sum of Rs.55,00,000/- and is required to pay now the royalty charges to the Court Receiver. It is also pertinent to note that the defendant no.6 has not placed on record any acceptable / reliable material to support her 9 contention that the amount of Rs.5,00,000/- was paid to defendant no.1 by her on 12/6/2007 or on 21/6/2007 or any time prior to the ad-interim order passed on 27/7/2007. 10. The scheme of Section 12 of the Contempt of Courts Act provides that the accused may be discharged or the punishment awarded may be remitted on an apology being submitted to the satisfaction of the Court. However, this occasion did not arise as the accused i.e. defendant no.1 - present appellant did not appear before the Court despite the service of show cause notice. He was given sufficient notice to defend himself and by his own choice he preferred not to reply to the show cause notice nor did he appear before the Court and submitted an apology for being purged from the contempt. Under these circumstances the impugned order cannot be held to be erroneous or illegal. We have also noted that the parties inter se are the members of the same family and the suit has been filed for partition of 1/5th share of each of the brothers. As per the plaintiff who has been supported by defendant nos.2 to 4, the defendant no.1 has only 1/5th share in the suit room as the suit room was the property of their late father. 10 11. The act of the appellant to alienate the suit room in breach of the order dated 27/7/2007 interfered or tended to interfere substantially with the due course of justice and on account of the failure of the appellant to appear and reply to show cause notice as well as to submit an apology for his discharge, left the trial Court with no alternative but to punish him for contempt. We do not find any reason to cause interference in the impugned order. We hold that the appellant was guilty of civil contempt, in acting in breach of the order dated 27/7/2007 which order was within his knowledge at the time when he sold the suit room to defendant no.6. 12. Hence this appeal fails and the same is hereby dismissed. 13. As directed, the appellant is present before us and urged to accept his apology and discharge him. We are not inclined to accept the apology, as being bona fide. He was directed to remain present before us on 10/2/2010 and on that day when the appeal was called out for pronouncement of the order, Mr. Mishra, the learned counsel appearing for the appellant, stated that the appellant had met with an accident and had sustained a fracture of his leg. We, therefore, granted time for appellant’s 11 personal appearance upto 15/10/2010, on which date when the appeal was called out, some medical certificates were submitted by Mr. Mishra in support of the appellant’s contention that he had sustained a fracture and had become immobile. Doubting the genuineness of these medical certificates, we had directed the appellant to remain present before us even if he was in wheel-chair and accordingly today he remained present before us. The Medical Officer attached to the High Court was requested to examine the appellant and go through the medical papers. As per the opinion of the Medical Officer, which is communicated to us orally in the open court, that the appellant has not sustained even a minor fracture and except some swelling on one of his leg, there is no other injury that he has suffered. This is one more instance of the appellant’s behaviour to deliberately mislead the court and interfere in the course of justice. 14. Hence the apology tendered by the appellant is rejected and the order of sentence passed by the learned trial Judge is hereby confirmed. 15. The learned counsel for the appellant, at this stage, 12 submitted an oral application for stay to the order of conviction. We are not inclined to consider the said request in the peculiar facts of this case. Hence the oral application is rejected. However, if the appellant submits a bail application, it would be considered on its own merits. 16. The Registry to issue arrest warrant for execution of this order. (SMT.V.K.TAHILRAMANIJ.) (B.H.MARLAPALLE,J.)