Full Text
HIGH COURT OF DELHI
Date of Decision: 19th APRIL, 2022 IN THE MATTER OF:
INDRA PASRICHA ..... Petitioner
Through Mr. Ashutosh Lohia, Mr. Soumya Kumar, Advocates
Through Mr. Ravi P Mehrotra, Senior Advocate with Mr. Vibhu Tiwari, Advocate for R-1 & R-3
Mr. Gautam Narayan, ASC for GNCTD with Mr. Aditya Nair, Advocate for SHO, Hauz Khas
JUDGMENT
1. The instant contempt petition has been filed for wilful disobedience of the Order dated 14.03.2012, passed by this Court in C.S.(O.S) No.1547/2006.
2. Facts, in brief, leading to the instant contempt petition are as follows: a) It is stated that the Petitioner herein had inherited the property bearing No. E-54, Pachsheel Park, New Delhi -110017 (hereinafter referred to as 'the property in question'), from her late sister, Kamla Gupta. It is stated that the brother-in-law of 2022:DHC:1381 the Petitioner herein, namely, R.N. Kapur, resided on the ground floor of the said property along with his wife, Raksha, who was also a sister of the Petitioner herein. It is stated that on the death of the Petitioner's sister, i.e. Raksha, the husband of Raksha, i.e. R. N. Kapur, filed a suit before this Court being C.S. (O.S.) No. 1547/2006, claiming to be the owner of the ground floor of the property in question. b) It is stated that the said suit was settled before the Delhi High Court Mediation and Conciliation Centre. Relevant portion of the settlement agreement dated 24.10.2011 reads as under: "ii. The defendants agree and undertake that the plaintiff shall continue to live in the entire ground floor of the property bearing No. E-54, Panchsheel Park, New Delhi during his entire life time and they shall not either dispossess him or interfere in his peaceful use and enjoyment of the said portion of the said property. iii. The defendants further agree and undertake that they shall not sell, alienate or otherwise incumber property No. E-54, Panchsheel Park, New Delhi during the life time of the plaintiff. In case of violation of this condition, the defendants shall be liable to pay 50% of the value of the said property to the plaintiff forthwith. iv. The defendants also agree and undertake that they will not carry out any structural changes in the aforesaid property during the life time of the plaintiff. The plaintiff further also undertakes not to part with possession or otherwise create any third party interest in the portion occupied by him during his life time. The parties shall continue to maintain status quo as on today in respect of property No. E-54, Panchsheel Park, New Delhi. v. On the aforesaid agreement and undertaking given by the defendants, the plaintiff does not wish to press his claim in the present suit and does not object if the suit is disposed off in terms of the aforesaid undertaking after the same is accepted by the Hon'ble Court. The plaintiff declares and assures "the defendants that after his death, the defendant shall become the sole and exclusive owner of the entire property no. E-54, Panchsheel Park, New Delhi. The defendant shall, in such event, be entitled to take physical possession of the ground floor of the Panchsheel Park property after the expiry of 3 months from the date of his death" (emphasis supplied) c) In terms of the settlement, a joint application under Order XXIII Rule 1/3 read with Section 151 CPC was filed before this Court. On 14.03.2012, this Court passed a decree in terms of the settlement deed. The decree was passed in presence of the Plaintiff and the Defendants. d) It is stated that R. N. Kapur lived alone on the property in question along with his domestic help till he breathed his last on 05.02.2018. The Petitioner, thereafter, in accordance with the directions of this Court in order dated 14.03.2012 rendered in C.S. (O.S.) No. 1547/2006, took possession of the property in question on 07.05.2018. e) It is stated that on the night of 24.05.2018, the Petitioner received a call in the evening from the tenant, who was residing on the first floor of the property in question, informing her that some people had trespassed in the property, i.e. the ground floor of the property in question. It was found that the Respondents No.1, 2 & 3 had trespassed the property in question. Consequently, the Petitioner filed a complaint before the local police on 20.05.2018 and on 01.06.2018. An FIR, bearing No.81/2019 dated 09.03.2019, was also registered at Police Station Hauz Khas under Sections 448/34 IPC. f) The Respondents herein were made aware of the undertaking given by R.N. Kapur. Despite being made aware of the undertaking, the Respondents have not vacated the premises which has resulted in the filing of the instant contempt petition.
3. Notice was issued on 20.11.2018. Reply has been filed. In the reply, it has been stated that the Respondent No.1 is the Niece of R. N. Kapur, in whose favour R. N. Kapur has executed a registered will dated 05.03.2009. It is stated that the Respondents have not given any undertaking to the Court. It is further stated that since the Respondents were not a part of the proceedings in C.S. (O.S.) No. 1547/2006, the Respondents cannot be held liable for the contemptuous act of wilfully disobeying the Orders of this Court. It is further stated that by way of the will dated 05.03.2009, R. N. Kapur has handed over the property to Respondent No.1 and only a civil suit can decide the title of the parties. It is stated that the principles of third-party liability cannot be adopted in the contempt proceedings.
4. The Police has also filed a Status Report stating that pursuant to the filing of FIR No.81/2019, 21 witnesses have been examined during the course of the investigation. After completion of the investigation, it was found that there is sufficient evidence against the Respondents herein. A Charge-sheet dated 16.03.2020 was filed before the Court of learned Metropolitan Magistrate, South Saket Courts, New Delhi, against the Respondents herein for offences under Sections 448, 453 read with Section 34 of the IPC.
5. Mr. Ravi P Mehrotra, learned Senior Counsel appearing for the Respondents No.1 & 3, apart from reiterating the averments made in the Reply, submits that the Petitioners have filed a Suit (C. S. No.1092/2018) for recovery of possession of the property in question against the Respondents before the Court of Additional District Judge, Saket Courts, New Delhi, and the same is pending. He submits that there is no contempt till the ownership of the property in question is decided. He further submits that the remedy of the Petitioner does not lie in filing a Suit, but by executing a decree.
6. Heard Mr. Ashutosh Lohia, learned Counsel appearing for the Petitioner, Mr. Ravi P Mehrotra, learned Senior Counsel appearing for the Respondents No.1 & 3, Mr. Gautam Narayan, learned ASC for the GNCTD, and perused the material on record.
7. The short question which arises for consideration before this Court is whether the Respondents have committed contempt of Court or not. Section 2(b) of the Contempt of Courts Act, 1971 defines "civil contempt" as wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a Court.
8. The law of contempt has been brought primarily to secure public respect and confidence in the judicial process and provide a sanction for any act or conduct which is likely to destroy or impair such respect and confidence. It is well settled that contempt must not be resorted to when there are provisions for execution, but at the same time, just because remedy of execution lies, it does not mean that contempt proceedings cannot be initiated. (Refer: Reliance Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers Bombay (P) Ltd., (1988) 4 SCC 592).
9. In U.N. Bora v. Assam Roller Flour Mills Assn., (2022) 1 SCC 101, after analysing the various principles of law on the point rendered, the Apex Court itself has laid down the parameters as to when action under the Contempt of Courts Act should be initiated.
15. It is well-settled principle of law that if two interpretations are possible, and if the action is not contumacious, a contempt proceeding would not be maintainable. The effect and purport of the order is to be taken into consideration and the same must be read in its entirety. Therefore, the element of willingness is an indispensable requirement to bring home the charge within the meaning of the Act. [See Sushila Raje Holkar v. Anil Kak [Sushila Raje Holkar v. Anil Kak,
497] and Three Cheers Entertainment (P) Ltd. v. CESC Ltd. [Three Cheers Entertainment (P) Ltd. v. CESC Ltd., (2008) 16 SCC 592] ]
21. Similarly, in R.N. Dey v. Bhagyabati Pramanik [R.N. Dey v. Bhagyabati Pramanik, (2000) 4 SCC 400], this Court expounded in para 7 as follows: (SCC p. 404) „7. We may reiterate that the weapon of contempt is not to be used in abundance or misused. Normally, it cannot be used for execution of the decree or implementation of an order for which alternative remedy in law is provided for. Discretion given to the court is to be exercised for maintenance of the court's dignity and majesty of law. Further, an aggrieved party has no right to insist that the court should exercise such jurisdiction as contempt is between a contemner and the court. It is true that in the present case, the High Court has kept the matter pending and has ordered that it should be heard along with the first appeal. But, at the same time, it is to be noticed that under the coercion of contempt proceeding, the appellants cannot be directed to pay the compensation amount which they are disputing by asserting that claimants were not the owners of the property in question and that decree was obtained by suppressing the material fact and by fraud. Even presuming that the claimants are entitled to recover the amount of compensation as awarded by the trial court as no stay order is granted by the High Court, at the most they are entitled to recover the same by executing the said award wherein the State can or may contend that the award is a nullity. In such a situation, as there was no wilful or deliberate disobedience of the order, the initiation of contempt proceedings was wholly unjustified.‟ ***
25. Pertinently, the special leave petitions were filed by the respondent against the order dated 28-1-2019 [Sagu Dreamland (P) Ltd. v. Jingal Bell Amusement Park (P) Ltd., 2019 SCC OnLine Del 6720], which as aforesaid, did not deal with the question regarding the monthly rent payable by the respondent but explicitly left the parties to pursue the same before the executing court. The plaintiff-petitioner having acquiesced of that observation of the High Court, cannot be allowed to contend to the contrary. This Court in Jhareswar Prasad Paul v. Tarak Nath Ganguly [Jhareswar Prasad Paul v. Tarak Nath Ganguly, (2002) 5 SCC 352: 2002 SCC (L&S) 703], in para 11, opined thus: (SCC p. 360) „11. … The court exercising contempt jurisdiction is not entitled to enter into questions which have not been dealt with and decided in the judgment or order, violation of which is alleged by the applicant. The court has to consider the direction issued in the judgment or order and not to consider the question as to what the judgment or order should have contained. At the cost of repetition, be it stated here that the court exercising contempt jurisdiction is primarily concerned with the question of contumacious conduct of the party, which is alleged to have committed deliberate default in complying with the directions in the judgment or order. If the judgment or order does not contain any specific direction regarding a matter or if there is any ambiguity in the directions issued therein then it will be better to direct the parties to approach the court which disposed of the matter for clarification of the order instead of the court exercising contempt jurisdiction taking upon itself the power to decide the original proceeding in a manner not dealt with by the court passing the judgment or order. If this limitation is borne in mind then criticisms which are sometimes levelled against the courts exercising contempt of court jurisdiction “that it has exceeded its powers in granting substantive relief and issuing a direction regarding the same without proper adjudication of the dispute” in its entirety can be avoided. This will also avoid multiplicity of proceedings because the party which is prejudicially affected by the judgment or order passed in the contempt proceeding and granting relief and issuing fresh directions is likely to challenge that order and that may give rise to another round of litigation arising from a proceeding which is intended to maintain the majesty and image of courts.‟ (emphasis supplied)
10. Respondent No.1 claims ownership of the property in question through the will given by R. N. Kapur which was executed on 05.03.2009, i.e. before the decree was passed on 14.03.2012 which was passed in pursuance of the Settlement Agreement which was based upon the undertaking that had been given by R. N. Kapur. The undertaking given by
R. N. Kapoor before this Court will undoubtedly take precedence over the will executed by him prior to giving the said undertaking. This Court is of the opinion that the undertaking given to the Court has to be respected and cannot be permitted to be circumvented by saying that the respondents were not parties to the suit and have not given the undertaking. In view of the above, the contention of Mr. Mehrotra that the Respondents cannot be held liable for the contempt of the Court as they were not parties to the Suit and had not given the undertaking to the Court cannot be accepted.
11. The Apex Court in Firm Ganpat Ram Rajkumar v. Kalu Ram, 1989 Supp (2) SCC 418, has observed as under: "5. In the aforesaid view of the matter, the question that requires consideration is how will this order of eviction passed by the High Court and confirmed by this Court by dismissing the special leave petition on the terms mentioned hereinbefore on 24-8-1987 is to be enforced or implemented? In our opinion, the said order must be implemented and cannot be allowed to be defeated by the dubious methods adopted by the partners of the said firm of Ganpat Ram Rajkumar. The whole conduct betrays a calculated attempt to defeat the order of this Court and to mislead this Court. If that is the position, in our opinion, parties cannot be allowed to do so and get away by misleading this Court This application was made for contempt. It may or may not be appropriate to pass any order punishing the wrongdoers. But there is no doubt that the order of this Court dated 24-8-1987 is being sought to be defeated and frustrated. Sons and grandsons of the partners or erstwhile partners of the firm cannot be allowed to frustrate the order of this Court."
12. This Court in Krishna Gupta v. Sh. Narendra Nath And Anr., 2017 SCC OnLine Del 10990, has observed as under:
innocence by demonstrating that the order passed was not to his knowledge or that the order was ambiguous and reasonably capable of more than one interpretation or that he did not have the intention to disobey the said order, but had conducted himself in accordance with his own bona fide interpretation of the said order. The view taken above finds resonance in the cases of Ram Chand Verma (supra), Komal Nagpal (supra) and Bundu (supra), relied on by learned counsel for the respondent No. 2. In the case of Mohd. Sharfuddin (supra) relied on by both sides, a Division Bench of the Andhra Pradesh High Court had opined as follows:—