: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 TESTAMENTARY TESTAMENTARY TESTAMENTARY & INTESTATE CIVIL JURISDICTION & INTESTATE CIVIL JURISDICTION & INTESTATE CIVIL JURISDICTION CONTEMPT CONTEMPT CONTEMPT PETITION NO. 6 OF 2008 PETITION NO. 6 OF 2008 PETITION NO. 6 OF 2008 IN IN IN NOTICE NOTICE NOTICE OF MOTION NO. 24 OF 2007 OF MOTION NO. 24 OF 2007 OF MOTION NO. 24 OF 2007 IN IN IN TESTAMENTARY TESTAMENTARY TESTAMENTARY PETITION NO. 154 OF 2007 PETITION NO. 154 OF 2007 PETITION NO. 154 OF 2007 Vanita Chintamani Shirgaonkar. ... Petitioner. V/s. Kunda Bhikushet Jethpal & Anr. ... Respondents. Mr. M.C. Hegde for the Petitioner. Mr. Suresh Dubey for the Respondents. ..... CORAM CORAM CORAM : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. 06TH 06TH 06TH FEBRUARY 2009. FEBRUARY 2009. FEBRUARY 2009. P.C. P.C. P.C. : : : . Heard learned Counsel appearing for the Petitioner and the Respondents. Perused the Petition and the annexures thereto. 2. The Petitioner is the widow of one Chintamani Atmaram Shirgaonkar. He expired on 7th November 2006. It is the case of the Petitioner that he left behind the Petitioner and two sons. 3. It is alleged by the Petitioner that Respondent No.1 was the Mistress of the deceased. She is the sister of the Petitioner. The Second Respondent is the illegitimate son. 4. There are proceedings referred to between the deceased and the Petitioner. :2: 5. It is not necessary to refer to them in details because the case of the Petitioner is that after the death of Chintamani, she found it difficult to reside with the Respondent at her matrimonial home. She instituted a Petition originally for issuance of Succession Certificate and subsequently, for Letters of Administration. This Petition was numbered as Petition No.154 of 2007. She moved a Notice of Motion being Notice of Motion No.24 of 2007 in this Contempt Petition and prayed that the Respondent to this Petition who are the Respondents to the Motion should be restrained from transferring, parting with possession or inducting any third party in the premises which are more particularly described in paragraph 3 of this Petition. The other reliefs that she prayed was that the Respondents and/or their servants, agents or family members be restrained from preventing the entry of the Petitioner in the said premises. 6. It is common ground that in this Notice of Motion, an affidavit in reply came to be filed on behalf of the Respondent. Paragraph 9 of the said affidavit reads thus :- "9. I deny that the Family Court, Bombay, granted order in petitioner favour. I deny that we physically prevented anyone from entering the said premises. I deny that Respondents are now trying to dispose of the said premises or otherwise to create third party interest therein to frustrate :3: Petitioner’s right and title in the said premises. I deny that Respondents are approaching the Co-operative Society managing the affairs of the Building in which the said premises are situated for transfer of the said premises to some third party’s name thereby to frustrate her right, title and interest in the said premises. I say that the Respondents are illegal occupants of the premises being the mistress and illegitimate son of the said late Chintamani Atmaram Shirgaonkar, who have right, title or interest of any nature whatsoever in respect of the said premises. Allegation that if the Respondent part with possession of the said premises or create any third party interest in the said premises, grave and irreparable harm, loss and injury will be caused to her is denied. Allegation that it therefore just, necessary and equitable that the Respondents are restrained by an order and injunction of this Hon’ble Court from transferring parting with possession, inducting any third party or otherwise creating any third party interest in the said premises is an improper prayer made in a improper manner and not in the proper court. Allegation that otherwise grave and irreparable harm loss and damage will be caused to the Petitioner which cannot be compensation in terms of money is totally false and incorrect. Allegation that no prejudice will be caused to the Respondents :4: if the injunction as prayed for is granted in her favour is denied. Allegation that balance of convenience also is in Petitioner’s favour is denied." 7. This affidavit was filed by Respondent No.2 to this Petition. In the light of the contents of this affidavit, this Court passed an order on 15th February 2008 making the motion absolute in terms of prayer clauses (a) and (b) which are referred to above. Thus, according to the Petitioner, both restraint/injunction orders came to be passed in her favour. 8. The allegation in the Contempt Petition is that the Respondents have flouted the orders of this Court deliberately inasmuch as they prevented her entry in the premises. In the Contempt Petition itself it is alleged that there were several attempts made to amicably resolve and settle the dispute but the same could not be done. It is, in these circumstances, and alleging Civil Contempt on the part of the Respondents that the Petition under Contempt of Courts Act, 1971 is filed. 9. An affidavit in reply has been filed to this Petition by Respondent No.2 and he states that the affidavit be treated as being filed on behalf of both Respondents. In para 3 of this affidavit, the Respondents have stated thus :- :5: "3. I state that the present Petition is merely to harass me and my family including my mother. I state that the Petitioner has got two sons who are having independent houses. I state that the only reason for intending to come to our house is to harass us. I state that we however do not have any objection if she comes and stays with us peacefully and happily but the entire tenor of the Petitioner is to force things upon us, which is not at all proper and legal. I state and submit that the repeated demand of the Petitioner that she should be given one room for herself and/or that she should be allowed to separately cook food would cause incalculable harm and injury to all of us. I state that the Petitioner is unnecessarily trying to make false and frivolous allegations with the sole and only intention to harass us. I state that myself and the Respondent No.2 have the highest respect for the orders of the Court and there is no question of we disregarding the orders of the Court. I state that I and my mother tender unconditional apology if any act of ours is/can be construed to be contemptuous of orders of the Court." 10. They have pointed out that Flat No.702 is admeasuring 323 sq.ft. only. It consists of one bed :6: room, one hall and one kitchen so also W.C. They have pointed out that there is no objection if the Petitioner desires to reside with them in the said flat but it is not possible to give her exclusive room to herself. They have pointed out as to how they are residing therein with their family. They state that they have never prevented her entry in the premises but they denied her demand for exclusive room to herself. 11. The Petitioner has not filed any rejoinder. 12. After perusing the said affidavit, I am satisfied that this is not a fit case for initiating action under provisions of the Contempt of Courts Act, 1971. This is not a case of deliberate or willful breach and violation of the order of this Court. It is pointed out as to how the Petitioner’s demands for an exclusive room cannot be met by parties. Considering that the area of the flat is not disputed so also the fact that the Petitioner has her own sons who are with whom she is presently residing, no case for initiating contempt proceedings is made out. 13. In the result, the Contempt Petition is mis-conceived and is dismissed. However, this order does not prevent the Petitioner from pursuing other remedies which are permissible in law. (S.C. (S.C. (S.C. DHARMADHIKARI,J.) DHARMADHIKARI,J.) DHARMADHIKARI,J.)