Kanwar Singh Saini vs High Court Of Delhi

G. Mohd. Yusuf filed an application dated 15.9.2003 under Order XXXIX Rule 2A of Code of Civil Procedure, 1908 (hereinafter called `CPC') read with Sections 10, 11 and 12 of the Act 1971 against the appellant, his wife and two sons alleging that when he visited the suit premises on 4.8.2003, he found that the locks of the main door had been broken by them. The appellant filed reply to the said application on 22.10.2003 alleging that the execution of the sale deed dated 5.9.2002 and his written statement and the statement made before the court on 29.4.2003 had been obtained by fraud.

H. While hearing the said application, the Court vide order dated 16.2.2004 recorded that as the appellant had taken inconsistent pleas to his written statement filed earlier and violated the undertaking while making his oral statement, a prima facie case of contempt was made out and referred the matter to the High Court to be dealt with under the provisions of Act 1971.

J. The High Court while accepting the reference as Criminal Contempt, issued show cause notice to the appellant on 2.2.2005 directing him to appear in person on 16.2.2005. The Court vide impugned judgment and order dated 20.7.2009 held the appellant guilty of criminal contempt on the basis of inconsistent pleas taken by him and also for the breach of undertaking and imposed simple imprisonment for four months. The appellant was granted bail by this Court on 29.9.2009.

6. The suit was filed on 26.4.2003 and notice was issued returnable just after three days, i.e. 29.4.2003 and on that date the written statement was filed and the appellant appeared in person and his statement was recorded. Order X Rule 1 CPC provides for recording the statement of the parties to the suit at the "first hearing of the suit"

21. In view of the above discussion, as such proceedings were not maintainable, the order of reference itself was not warranted. It also becomes crystal clear that the appellant had been subjected to unfair procedure from the institution of the suit itself. The suit had been "disposed of" in great haste without following the procedure prescribed in CPC. Once the suit has been decreed, the court could not entertain the application under Order XXXIX Rule 2A CPC as the suit had already been decreed and such an application is maintainable only during the pendency of the suit in case the interim order passed by the court or undertaking given by the party is violated. In the instant case, no interim order had ever been passed and the undertaking given by the appellant/defendant not to dispossess the said plaintiff culminated into a final decree and thus, if any further action was required, it could be taken only in execution proceedings. There has been manifest injustice in the case and the doctrine of ex debito justitiae has to be applied in 2 order to redress the grievances of the appellant/defendant. Judgment and order impugned cannot be sustained under any circumstance.

22. The courts below have proceeded with criminal contempt proceedings not for disobeying any judgment or order but for taking inconsistent pleas in the reply filed by the appellant to the application under Order XXXIX Rule 2A CPC, accepting it to be a false affidavit.

(Emphasis added)

26. In view of the above, as the application under Order XXXIX Rule 2A CPC itself was not maintainable all subsequent proceedings remained inconsequential. Legal maxim "sublato fundamento cadit opus" which means foundation being removed structure falls is attracted.

27. Thus, taking into consideration, the fact situation involved in the case, the appeal is allowed. The impugned judgment and order dated 20.7.2009 passed by the High Court of Delhi at New Delhi in Contempt Case (Crl.) No. 9 of 2004 is hereby set aside. His bail bonds stand discharged.

28. However, we clarify that any observation made in this judgment shall not affect, in any manner, merit of other cases pending between the parties in regard to the Suit property.