1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY & INTESTATE JURISDICTION CONTEMPT PETITION NO.29 OF 2007 IN MISC.PETITION NO.57 OF 2006 Camil Gerald Pereira .. Petitioner Versus Thomas Longinus Gonsalves .. Respondent Mr.N.R.Tiwari for petitioner Mr.N.K.Ravi for respondent CORAM : S.C.DHARMADHIKARI, J. DATE : 16th January 2009. P.C. . The contempt petition is filed alleging contempt of an order dated 5th May 2005, which reads as under:- "1. Counsel on both sides agree the appointment of Commissioner to visit the suit house and make a report with regard to the position in the suit house and 2 also with regard to the allegation of latest construction of wall in it. "2. The Prothonotary to appoint Commissioner to visit the house i.e. House No.153/153A as described in the petition tomorrow i.e. on 6th May 2005 at 4.00 p.m. and make a report with regard to the allegation of some construction being made in that house and submit a report. "3. Parties to maintain status quo in terms of the Commissioner’ report. The matter to come up after vacation." 2. The main petition is filed by the present petitioner seeking setting aside of letters of administration dated 12th January 2004 issued by this Court in T.Petition No.526 of 2004. 3 3. In the contempt petition, it is alleged that the respondent had carried out some construction in the suit house being House No.153/153A of Christian Village Ward, Kurla, Mumbai and, therefore, an application was made to this Court and the above order was passed. 4. Thereafter, as directed in the said order, the Commissioner visited the site and submitted a report. The Commissioner’s Report records that the suit house was pointed out by the Advocate for respondent and he stated that this is house No.153, whereas the petitioner in this petition contended that it is house No.153A. The relevant portion of the Commissioner’s Report reads thus:- ". At the time of my visit Mr.K.P.Ravi, Advocate for the petitioner and some othe persons were present in front of the suit house. Mr.Ravi 4 introduced me to the respondent Mr.Camil Gerald Pareira." ". This is a load bearing structure with cement sheets on the roof and below the cement sheets "Kota Ladi" are placed on the iron angles. Mr.Ravi knocked the door of the house. One person opened the door. Mr.Ravi told me that he is the petitioner. The petitioner objected for entering the representative of respondent Mr.Shenoy in the suit house. Therefore, I requested Mr.Shenoy to remain out. Only respondent was allowed to enter the premises. In addition to the petitioner one lady by name Smt.Radhabai Babu Londhe and Mr.Babu Ramesh Londhe were present in the suit premises. On inquiry Mrs.Radhabai told me that she was the servant of the deceased Thomas Sabastean Gomes and she is staying there since last 5 8 years. However, she does not have a ration card. Further she is not knowing whether her name is in the voters list is there or not. However all her house hold belongings such as cloths, utensils, kerocene stove water pot etc. are there. There are also 2 steel cupboards, 2 tables and 8 chairs. There is a electric meter on the north side wall and its number is 3149925." ". According to respondent petitioner had constructed a north south wall in the suit house and yesterday night have removed the same. However, I could not notice any fresh marks of construction." ". The suit house is 23 feet x 22 feet open hall except a 4 feet x 9 feet partly constructed 3 W.C. blocks in 6 south east corner. The doors of these W.C. are opening outside the hall. The sketch of the suit house is Annexed as Exh.A. Construction of these 3 W.C is incomplete. Only brick masonary work is done. But this work is not fresh. It appears that it has been left incomplete long ago." 5. A perusal thereof would indicate that one family was residing in the said house. Not satisfied with this the Contempt Petitioner applied to this Court seeking an action in Contempt against the respondent. 6. When this petition was placed before the Court on 27th December 2006, reliance was placed upon the affidavit in support dated 23rd December 2006 and this Court recorded a prima facie finding that the respondent is continuing to commit contempt of the order dated 5th May 2005. 7 Therefore, the Prothonotary & Senior Master was directed to appoint an officer as Commissioner and make report in this contempt petition to this Court along with photographs. 7. The Commissioner accordingly paid a visit and submitted his report on 30th December 2006. An application was made before the Vacation Judge and the learned Vacation Judge (Mrs.R.S.Dalvi, J) passed an order after noticing the contention of the respondent that there is no construction made by him and that the respondent was not in Mumbai but in Goa at the relevant time. 8. The matter was placed before this Court after the Court Commissioner was directed to once again visit the premises and take photographs. 9. After all this material was placed on record, the Contempt petition has been placed for admission before me. I have heard the learned 8 Advocates for both sides at some length. 10. In the reply affidavit the respondent has stated that he is respondent to the original petition but cannot be termed as Contemnor. While not disputing that the Commissioner was appointed and that visit was paid and report submitted, the respondent has contended that one Babu Londhe and his wife Radhabai were in possession and occupation of the said house when the Commissioner visited the same. They were servants of the deceased Thomas. They lived in the house with him. The house consisted of three big rooms and Mr. and Mrs. Londhe was residing in one of them. It is also stated that Londhe’s had a son who also lived with them in the said house. This family lost the son in the floods of July 2005. They got some compensation from Government. The house became inhabitable and, therefore, Londhe family spent some part of the amount received as compensation to repair the 9 house. 11. As far as the respondent is concerned, it is specifically asserted by him that he was in symbolic possession of the house after death of his uncle. He rarely visited the suit house. He did not want to disturb Londhe’s occupation of the same as he had full faith in Londhe family as Londhe family looked after his uncle till his demise so also there was tragedy in the family. 12. Thus, from reading of this affidavit it is apparent that the respondent raises a dispute about identity of the property and the factum of the construction being carried out by him. He asserts that he is not in physical possession of the house and, therefore, cannot be said to be in contempt of the order passed by this Court. 13. When all these aspects were brought to the notice of petitioners’ Advocate and it was 10 also pointed out to him that in the limited jurisdiction that is conferred upon this Court while dealing with contempt, it will not be possible to enter into these factual aspects of the dispute, he fairly states that appropriate order be passed so as not to prejudice case of both sides. 14. From the record I had noticed that the respondent has filed civil suit being L.C.Suit No.1811 of 2005 against the petitioner and one Satyavan and Yeshwant Shenoy claiming to be contractors and that suit is still pending. In that suit as well as in the present one, respondent has asserted that he has not carried out any construction work in the house nor has he employed any person to carry out the same. 15. In my view, these are all matters which can be sorted out by a civil court. Even the petitioner can agitate these issues in 11 independent proceedings and place on record in the said proceedings, all materials including the present reports of the Commissioner. Once the stand of the parties is before me and it is not clear from the record of this contempt petition that the respondent has flouted or has allegedly violated or breached the order of status quo passed by this Court, then, action in contempt cannot be initiated. The contempt jurisdiction is not meant for granting further reliefs to the parties. Substantive reliefs cannot be granted in this limited jurisdiction is the settled law. The court must proceed to decide as to whether the order passed by this Court or any undertaking given to it is breached deliberately and wilfully. Thus, whether there is any civil contempt committed by the respondent or party to the proceedings is the limited issue. That whwther the respondent has committed civil contempt, being not clear this contempt petition cannot be entertained. It is accordingly 12 dismissed. 16. However, it is clarified that this Court has not entered into any factual aspects and disputes and all pleas in that behalf of both sides are kept open. (S.C.Dharmadhikari, J)