1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1672 OF 2009 IN CONTEMPT PETITION NO.15 OF 2008 IN SUIT NO.1119 OF 2003 Shahida @ Leela Gulam Ali Shaikh .. Plaintiff Versus Sherali Gulamali Sheikh & Ors. .. Defendants Ms.Mamta Sadh i/b. Banatwala & Co. for defendant Nos. 1 to 11 in support Ms.Gunjan Shah i/b. S.A. Sawant for plaintiff CORAM : S.C.DHARMADHIKARI, J. DATE : 6th October 2009. P.C.: 1] This is a notice of motion which has been moved by the original defendant Nos. 1 to 11. The prayer is that the amount of Rs.10,000/- per month directed to be deposited in terms of earlier order (12th November 2008) in this contempt petition be modified to the extent that the petitioner is entitled to the proportionate share received by the heirs of Gulam Ali as per his share and distributed amongst his heirs equally. 2 2] It is not in dispute that the contempt petition was placed before this Court on 12th November 2008. The contempt petition was filed by the petitioner/ widow – plaintiff in the aforementioned suit. It was her grievance that consent terms were arrived at on 21st April 2005 and placing reliance upon clauses 11, 12 and 25 it was urged that civil contempt is committed by respondent Nos. 2 and 3 to the contempt petition by transferring tenancy without the consent of petitioner. Further breach is change of collection box without consent of plaintiff. 3] The matter was heard at length after affidavits were filed. While disposing of the matter, the Court noticed that the petitioner is widow. She must get the fruits of the decree of partition which was passed by consent of parties to the suit. In her lifetime she should be financially independent and the grievance being that the son is not accounting for the monies collected, that by itself, is no ground to deny her the benefits of the consent terms. The agreement recorded between the parties in clause 5 is that the petitioner, one Aslam/ respondent No.12 and respondent Nos. 2 and 3 agreed that whenever, there are transfer of tenancies in future, 3 apart from the consent of Aslam even the petitioner would give her consent provided she is paid monthly sum of Rs.10,000/- regularly. The Court noticed as to what could be the basis for the sum agreed by parties and the immovable property and other aspects are referred to in para 6. It is in the light of these agreed terms and finding that the alleged contemnors are now ready and willing to abide by the order and undertaking given to this Court, that the contempt petition was not proceeded with but disposed of. 4] Now, an application is made for modification of the order passed in the contempt petition. When this notice of motion was placed before me on 14th September 2009 and it was brought to my notice that the monthly sum payable to the petitioner has not been paid/ deposited after March 2009, I called upon the learned Counsel for the defendant Nos. 1 to 11 in support of this notice of motion to take instructions as to whether the defendant Nos. 1 to 11 are still willing to make the payment as directed. The arrears were stated to the tune of Rs.60,000/-. This Court, therefore, directed that a sum of Rs.50,000/- should be deposited and only, thereafter, the notice of motion will be heard further. It is stated that the 4 amount of Rs.50,000/- is deposited directly in petitioner’s Account. 5] It is, thereafter, that the matter is being heard and disposed of. 6] Ms.Sadh has invited my attention to the affidavit in support of the motion and has contended that it is not possible to comply with the orders and directions of this Court, inasmuch as the property is not generating income which would enable the defendant Nos. 1 to 11 to disburse the sum of Rs.10,000/-. It is stated that there are 39 co-sharers to the income earned from Darga, which mainly comprises income from rent, collection from charity box and transfer of tenancy. It is stated that keys to the collection box is in the custody of the petitioner and with the son i.s. Aslam and the rent received is only Rs.11,000/- per month. Further, it is stated that the Darga collection is just about Rs.25,000/- per month. There are liabilities such as salaries to the sweeper, electricity bills and property tax so also periodical maintenance. Thereafter, the Niyaaz is to be distributed to the devotees every Thursday. All these expenses are incurred from the income fetched by the Darga and, thereafter, the amount is distributed to the co-owners as per their share. 5 7] In such circumstances, the order should be modified. 8] On the other hand in the affidavit in reply it is denied that the keys are with the petitioner and her son. Further, it is stated that petitioner is 65 year old widow. She has pointed out that it is not correct that the Darga income is only Rs.20 to 25,000/- per month. She has denied that the collection from the box is meager as alleged. On the other hand, it is to the tune of Rs.50 to 60,000/- per month. 9] It is then contended by Ms.Sadh that the share of the petitioner would be in her husband, Gulam Ali’s property/share. Gulam Ali has 31.62% share. That has to be distributed and the income is not enough to pay the monthly sum. 10] Having heard the learned Counsel for parties and perusing with their assistance affidavits filed on record, I am of the view that there is no substantiation or proof of the averments made in para 17 of the affidavit in support. Barring stating some figures, there is nothing pointed out to 6 show that the Darga property does not fetch a sum which is insufficient to meet the obligation towards the petitioner so also comply with the orders and directions of this Court. Every single order and direction is by consent of parties. There are consent terms in the suit. Further, the contempt petition was moved and when the request was made before the Court to proceed against the defendants who have moved the present notice of motion for deliberate and willful violation of the order and direction of this Court that, they came forward and both sides agreed to the quantum as determined in the order. Therefore, merely because the monthly sum is directed to be paid and that is to the tune of Rs.10,000/- per month that by itself is no ground to recall and modify the earlier order. More so, when there is absolutely nothing placed on record to substantiate and prove the averments in paras 16 and 17 of the affidavit in support. These allegations have been denied by the petitioner/ plaintiff in her affidavit and she has pointed out that the income generated is much more than what is indicated in the affidavit. Reference is also made to the display of certain hoardings. In such circumstances, to my mind, no case is made out for modifying the order and direction of this Court. The notice of motion, therefore, deserves to be and is accordingly dismissed. 7 There will, however, be no orders as to costs. 1] At this stage Ms.Sadh applies for stay of this order. This request is opposed by the petitioner/ plaintiff on the ground that the amount due and payable for the month of September and October has not been paid/ deposited. In my view, the conduct of the defendant Nos. 1 to 11 is such that they are not entitled to any discretionary and equitable reliefs from the Court. To avoid any stringent action being taken against them for breach of the order and direction of this Court, that they on their own came forward and made the request as aforenoted. In these circumstances, prayer for stay is refused. (S.C.DHARMADHIKARI, J)